Mendez v. Loanme, Inc et al

Filing 17

ORDER Granting 16 Defendants' Ex Parte Application for Limited Discovery. Signed by Judge Cynthia Bashant on 11/17/2020. (mme)

Case 3:20-cv-00002-BAS-AHG Document 17 Filed 11/17/20 PageID.123 Page 1 of 2

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UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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CAROLL KING MENDEZ,

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Case No. 20-cv-00002-BAS-AHG
Plaintiff,

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v.

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LOANME, INC., et al.,

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ORDER GRANTING DEFENDANTS’
EX PARTE APPLICATION FOR
LIMITED DISCOVERY
[ECF No. 16]

Defendants.

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On November 12, 2020, Defendants LoanMe, Inc. and Jonathan Williams moved ex

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parte to conduct limited discovery relating to Plaintiff’s purported arbitration opt-out letter

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before the evidentiary hearing on December 3, 2020. (ECF No. 16.) Defendants state that

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they have requested the opt-letter from Plaintiff on multiple occasions but have received

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no response. (Id. at 2.) The ex parte application is unopposed.1

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Under Federal Rule of Civil Procedure 26(b)(1), any matter relevant to a claim or a

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defense is discoverable. In the context of arbitration, however, the Federal Arbitration Act

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(“FAA”) provides for discovery related to a motion to compel arbitration only if “the

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making of the arbitration agreement or the failure, neglect, or refusal to perform the same

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be in issue.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th Cir.1999) (citing 9 U.S.C. §

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4). This also includes a party’s decision to opt out of an arbitration agreement. See Erwin

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v. Citibank, N.A., No. 3:16-CV-03040-GPC-KSC, 2017 WL 1047575, at *4 (S.D. Cal. Mar.

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20, 2017) (“[W]hether or not Plaintiff opted out of the 2015 Arbitration Agreement is

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Ex parte applications that are not opposed within two Court days must be considered unopposed and may
be granted on that ground. See Hon. Cynthia Bashant’s Standing Order for Civil Cases § 6. Plaintiff has
not filed an opposition to the instant application.
-120cv02

Case 3:20-cv-00002-BAS-AHG Document 17 Filed 11/17/20 PageID.124 Page 2 of 2

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dispositive of the first gateway question of arbitrability—it goes to the very heart of

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whether an agreement to arbitrate exists.”).

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The Court finds it appropriate to grant Defendants’ request for limited discovery.

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The letter is directly related to whether an arbitration agreement was formed between the

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parties. The authenticity of the letter, specifically the date of its creation, is central to

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resolving whether or not Plaintiff timely opted out of the arbitration agreement.

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Defendants require the letter itself to determine whether the testimony of an ESI expert

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will be necessary at the evidentiary hearing. This testimony, in turn, may be necessary to

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the Court’s determination of the sole underlying issue in this case.

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Further, the Court finds it appropriate to grant this relief ex parte. See Mission Power

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Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995) (ex parte relief is

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appropriate where moving party shows it will suffer irreparable harm if the motion is not

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heard on an expedited schedule and that it did not create the circumstances warranting ex

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parte relief).

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application. They have sufficiently demonstrated that they attempted to contact Plaintiff

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by telephone and email numerous times over a two-week period regarding production of

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the letter—and the filing of the instant application—but received no response. (Decl. of

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Elizabeth C. Farrell ¶¶ 2–4, ECF No. 16; Ex. A to Farrell Decl.) Second, as stated above,

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Defendants will suffer irreparable harm if they are unable to determine what evidence will

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be necessary to carry their burden at the evidentiary hearing.

First, Defendants did not create the circumstances necessitating this

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Accordingly, the Court GRANTS Defendants’ Application (ECF No. 16).

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Defendants shall serve on Plaintiff, no later than November 19, 2020, a request for

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production of the opt-out letter referenced in Plaintiff’s Opposition to Defendants’ Motion

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to Compel (ECF No. 11), in native format (i.e., including any ESI), and any copies thereof.

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Plaintiff is ordered to respond to such request no later than November 25, 2020.

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IT IS SO ORDERED.
DATED: November 17, 2020

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-220cv02