Pacello, Jr. v. Jimenez et al

Filing 14

ORDER Denying 8 Ex Parte Motion for Expedited Discovery. Signed by Magistrate Judge William V. Gallo on 4/9/2013. (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAYMUND PACELLO, JR.,
Plaintiff,

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v.

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JAMIE JIMENEZ, et al.,

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Defendants.

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Civil No.13-0405-GPC(WVG)
ORDER DENYING EX PARTE
MOTION FOR EXPEDITED
DISCOVERY (DOC. NO. 8)

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Plaintiff Raymund Pacello, Jr. (“Plaintiff”) has

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filed an Ex Parte Motion For Expedited Discovery (“Mo-

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tion”). Defendants Jaime (erroneously sued as “Jamie”)

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Jimenez and Griselda Jimenez, Bank of America, and Bank of

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New York Mellon have filed Oppositions to the Motion. For

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the reasons stated below, the Motion is DENIED.

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On February 20, 2013, Plaintiff filed a Complaint

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against Defendants alleging Violation of the Fair Debt

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Collection Practices Act (15 U.S.C. § 1692), Violation of

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the California Rosenthal Fair Debt Collection Practices

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Act (Cal. Civ. Code § 1788, et seq.), Violation of Cali1

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fornia Business & Professions Code § 17200, Quiet Title,

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Cancellation of Written Instrument, Accounting, and Fraud,

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in connection with the financing and foreclosure on his

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former home at 574 Old Trail Drive, Chula Vista, Califor-

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nia (“subject property”).
Plaintiff’s Motion seeks the following expedited

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discovery:

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1. The history and current status of any assignments

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of the promissory note, including who the current holders

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of the note may be and to receive a full accounting on the

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subject loan.1/

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2.

A

Federal

Rule

of

Civil

Procedure

30(b)(6)

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deposition of Defendant First American Title Insurance

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Company (“First American”) pertaining to the purported

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assignment of trust deeds.2/

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3. Depositions of Jaime Jimenez and Griselda Jimenez

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regarding the alleged fraud in the chain of title of the

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subject property.

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Generally, a party may not initiate discovery before

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the parties have satisfied the meet and confer requirement

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of Federal Rule of Civil Procedure 26(f). However, a court

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may authorize earlier discovery “for the convenience of

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parties and witnesses and in the interests of justice.”

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Fed. R. Civ. P. 26(d).

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take discovery prior to the parties’ meeting under Rule

A court may grant a request to

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1/

The Court presumes that Plaintiff seeks this information regarding the
subject property.
2/

See footnote 1.

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26(f) where the requesting party demonstrates good cause.

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See Semitool, Inc. v. Tokyo Electon Am., Inc., 208 F.R.D.

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273, 276 (N.D. Cal. 2002); U.S. v. Distribuidora Batiz

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CGH, S.A. DE C.V., 2009 WL 2487971, at 10 (S.D. Cal.

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2009).

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of good cause.

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“Good cause may be found where the need for expedited

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discovery,

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justice, outweighs the prejudice to the responding party.”

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A balancing test is used to determine the presence

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See Semitool, 208 F.R.D. at 267-268.

consideration

of

the

administration

of

Id. at 276.

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Here, Plaintiff contends that the discovery he seeks

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will show that First American knew, when it issued title

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insurance to Jaime Jimenez and Griselda Jimenez, that the

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foreclosure on Plaintiff’s home was based on fraudulent

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documents, that the documents he seeks are solely in

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Defendants’ possession, and that he needs to present such

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information

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Dismiss his Complaint.

in

Opposition

to

Defendants’

Motions

to

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However, Plaintiff does not explain why the discov-

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ery sought must be presented in opposition to Defendants’

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Motions to Dismiss. Since a motion to dismiss tests the

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sufficiency of the complaint, and extrinsic evidence is

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not usually considered by the court in ruling on a motion

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to dismiss, Plaintiff has failed to show why the court

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should consider the information he seeks in ruling on the

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Motion to Dismiss.

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tiff seeks is equally available to him as it is to Defen-

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dants. Additionally, all the information Plaintiff seeks

Also, some of the information Plain-

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does not appear to have any bearing on Plaintiff’s ability

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to respond to Defendants’ Motions to Dismiss, nor Plain-

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tiff’s ability to cure any defects in the Complaint, if

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the Court finds any defects. In fact, all of the discovery

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sought by Plaintiff can wait until after Defendants have

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answered Plaintiff’s Complaint and Plaintiff and Defen-

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dants have met and conferred regarding discovery, pursuant

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to Federal Rule of Civil Procedure 26(f).

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On the other hand, the expedited discovery sought by

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Plaintiff would subject Defendants to the costs of re-

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searching, collecting and producing documents to Plaintiff

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regarding an accounting on his loan, which may never be

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discoverable in this action, litigating the financial

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privacy rights of Jaime Jimenez and Griselda Jimenez prior

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to or after deposing them, and preparing for and complet-

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ing a Federal Rule of Civil Procedure 30(b)(6) deposition,

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all before the pleadings are settled.

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The Court finds that Plaintiff has failed to present

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good cause for the expedited discovery he seeks because

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his need for the expedited discovery, in consideration of

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the administration of justice, does not outweigh the

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prejudice

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requested discovery. Semitool, 208 F.R.D. at 276. As a

to

Defendants

in

having

to

respond

to

the

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result, Plaintiff’s Motion for Expedited Discovery is

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DENIED.

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DATED:

April 9, 2013

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Hon. William V. Gallo
U.S. Magistrate Judge

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