Durruthy et al v. Weil et al

Filing 10

ORDER denying Plaintiff's Petition to Perpetuate Testimony. The Court GRANTS Capital One's motion to dismiss the Petition. the Court GRANTS Capital Ones request for judicial notice. In light of its factual and procedural deficiencies, Plaintiffs' Petition is DENIED and the action is dismissed WITHOUT PREJUDICE. The Clerk of Court is DIRECTED to CLOSE this case. Signed by Judge Anthony J. Battaglia on 3/15/2018. (All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

JUAN R. AND JUANA DURRUTHY,

Case No.: 17-cv-02261-AJB-BGS

Plaintiffs,

12
13
14

ORDER DENYING PLAINTIFFS’
PETITION TO PERPETUATE
TESTIMONY

v.
ADRIENNE WEIL, MTC FINANCIAL,
INC., AND CAPITAL ONE, N.A.,

15
16

Defendants.

(Doc. No. 1)

17
18
19
20
21
22
23
24
25
26
27
28

On November 6, 2017, Plaintiffs Juan R. and Juana Durruthy, proceeding pro se,
filed a petition to perpetuate the testimony of Amy Lemus, Veronica Cavazos, and Miguel
Ochoa (the “Petition”). (See generally Doc. No. 1.) In response Defendant Capital One,
N.A., filed a motion to dismiss the Petition. (Doc. No. 5.) Plaintiffs did not file an
opposition to the motion. Pursuant to Civil Local Rule 7.1.d.1, the Court finds the matter
suitable for determination on the papers and without oral argument. Accordingly, the
motion hearing set for April 12, 2018, is hereby VACATED. For the reasons set forth
below, the Court GRANTS Capital One’s motion to dismiss the Petition.
DISCUSSION
At the outset, the Court GRANTS Capital One’s request for judicial notice. (Doc.
No. 6.) Capital One requests notice of three documents from Plaintiffs’ initial case filed
1
17-cv-02261-AJB-BGS

1

with this Court and Plaintiffs’ eight bankruptcy cases filed with the Bankruptcy Court for

2

the Southern District of California. (Id. at 2.) Courts have routinely found these documents

3

to be public records that can be “accurately and readily” determined from reliable sources.

4

Fed. R. Evid. 201(b). Accordingly, judicial notice of the documents requested by Capital

5

One is warranted. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6

6

(9th Cir. 2006) (taking judicial notice of briefs, transcripts, pleadings, memoranda, and

7

expert reports that were filed in another lawsuit).

8

Next, turning to the issue at hand, the Court outlines that the subject matter that

9

Plaintiffs wish to establish through the perpetuated testimony are that (1) “the Defendant

10

has never acquired any legal rights, including servicing rights, or any interest in the

11

petitioners’ title to their home, or the note and trust deed that was recorded against the

12

title”; (2) “the defendant is involved with the theft of the petitioners’ identifying, banking,

13

financial and credit information for its own profit”; and (3) “the defendant is using the state

14

and county foreclosure process to launder counterfeit and forged instruments.” (See

15

generally Doc. No. 1.)

16
17
18
19
20

Federal Rule of Civil Procedure 27 states that:
A person who wants to perpetuate testimony about any matter
cognizable in a United States court may file a verified petition in
the district court for the district where any expected adverse party
resides. The petition must ask for an order authorizing the
petitioner to depose the named persons in order to perpetuate
their testimony.

21
22
23
24
25
26
27

Fed. R. Civ. P. 27(a)(1). Specifically, the petitioner must show: (1) “that the petitioner
expects to be a party to an action cognizable in a United States court but cannot presently
bring it or cause it to be brought;” (2) “the subject matter of the expected action and the
petitioner’s interest;” (3) “the facts that the petitioner wants to establish by the proposed
testimony and the reasons to perpetuate it;” (4) “the names or a description of the persons
whom the petitioner expects to be adverse parties and their addresses, so far as known;”

28
2
17-cv-02261-AJB-BGS

1

and (5) “the name, address, and expected substance of the testimony of each deponent.” Id.

2

at (a)(1)(A)–(D).

3

Rule 27 applies where testimony or evidence might be lost to a prospective litigant

4

unless a deposition is taken immediately to preserve the testimony for future use. See Ash

5

v. Cort, 512 F.2d 909, 911 (3rd Cir. 1975). However, the Ninth Circuit and many other

6

courts have clearly and repeatedly held that “Rule 27 cannot be used as a substitute for

7

discovery to determine whether a cause of action exists or to preserve unknown information

8

that may be helpful in future litigation.” In re Certain Investor in EFT Holdings Inc. to

9

Perpetuate Testimony of Mr. Jack Qin, No. CV 13-0218 UA (SS), 2013 WL 3811807, at

10

*4 (C.D. Cal. July 22, 2013). “The grant or denial of a petition to preserve testimony is

11

within the discretion of the Court.” In re Provident Life and Acc. Ins. Co. to Perpetuate

12

Testimony, No. MC 13-231 UA (JC), 2013 WL 3946517, at *1 (C.D. Cal. July 26, 2013)

13

(citation omitted).

14

As a threshold issue, the Court notes that Plaintiffs have failed to oppose Capital

15

One’s motion to dismiss. Thus, pursuant to Civil Local Rule 7.1 this constitutes a “consent

16

to the granting of a motion . . . .” CivLR 7.1.f.3.c. Despite this deficit, the Court wishes to

17

reach the merits of Plaintiffs’ Petition. Unfortunately, due to the various procedural and

18

substantive factual deficiencies with the Petition, the Court is unwilling to perpetuate

19

testimony in this case.

20

First, as Capital One points out, Plaintiffs’ Petition is not verified as Rule 27

21

requests. (Doc. No. 1 (see Coulter v. Baca, No. 13-cv-6090-CBM (AGRx), 2014 WL

22

12589652, at *3 (C.D. Cal. May 23, 2014) (illustrating that a verified complaint needs to

23

be signed under penalty of perjury)). Next, the Petition fails to establish the majority of the

24

prerequisites for the application of Rule 27. The Court notes that the Petition does not

25

clearly demonstrate why Plaintiffs cannot presently bring their action or that the testimony

26

might be lost unless taken immediately. See Tennison v. Henry, 203 F.R.D. 435, 440 (N.D.

27

Cal. 2001) (“In order to demonstrate that there is significant risk of loss, ‘[i]t is advisable,

28

though not necessary, to show particular circumstances indicating a concrete danger of
3
17-cv-02261-AJB-BGS

1

loss.’”) (citation omitted); see also Matter of Ricci & Kruse Lumber Co., No. 18-mc-80021-

2

MEJ, 2018 WL 732498, at *2 (N.D. Cal. Feb. 6, 2018) (discussing whether the proposed

3

witnesses advanced age demonstrated an immediate need for the perpetuation of his

4

testimony). Moreover, the Petition does not provide the name and addresses of the

5

prospective deponents as required by Rule 27. (See Doc. No. 1.)

6

In sum, the Court is not persuaded that Plaintiffs are entitled to obtain discovery

7

before litigation has commenced and is not satisfied that the perpetuation of testimony

8

“may prevent a failure or delay of justice[.]” Fed. R. Civ. P. 27(a)(3). Most notable is

9

Plaintiffs’ failure to adequately identify the risk or risks which would justify the immediate

10

need to perpetuate testimony in the instant case. See In re Provident Life, 2013 WL

11

3946517, at *2 (“Among the factors that courts have found to be persuasive in justifying

12

the need to perpetuate testimony are: 1) advanced age or infirmity of witness; 2) the

13

possibility that the witness will not be willing to testify if discovery is delayed; and 3) the

14

uniqueness of the information at issue.”) (citation omitted).

15

CONCLUSION

16

In light of its factual and procedural deficiencies, Plaintiffs’ Petition is DENIED and

17

the action is dismissed WITHOUT PREJUDICE.1 The Clerk of Court is DIRECTED to

18

CLOSE this case.

19

Dated: March 15, 2018

20
21
22
23
24
25
26
27
28

1

Capital One requests that the Petition be dismissed with prejudice as Plaintiffs filed
another lawsuit against Defendants in January of 2017—17-cv-0055-AJB-BGS. (Doc. No.
5 at 3.) This case was dismissed for failure to pay the filing fee. (Doc. No. 6 at 30–31.)
However, without more information as to the nature of the lawsuit in the current matter,
the Court declines to dismiss with prejudice.
4
17-cv-02261-AJB-BGS

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
17-cv-02261-AJB-BGS