Mendez v. Loanme, Inc et al
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
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
CAROLL KING MENDEZ,
Case No. 20-cv-00002-BAS-AHG
LOANME, INC., et al.,
ORDER GRANTING DEFENDANTS’
EX PARTE APPLICATION FOR
[ECF No. 16]
On November 12, 2020, Defendants LoanMe, Inc. and Jonathan Williams moved ex
parte to conduct limited discovery relating to Plaintiff’s purported arbitration opt-out letter
before the evidentiary hearing on December 3, 2020. (ECF No. 16.) Defendants state that
they have requested the opt-letter from Plaintiff on multiple occasions but have received
no response. (Id. at 2.) The ex parte application is unopposed.1
Under Federal Rule of Civil Procedure 26(b)(1), any matter relevant to a claim or a
defense is discoverable. In the context of arbitration, however, the Federal Arbitration Act
(“FAA”) provides for discovery related to a motion to compel arbitration only if “the
making of the arbitration agreement or the failure, neglect, or refusal to perform the same
be in issue.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th Cir.1999) (citing 9 U.S.C. §
4). This also includes a party’s decision to opt out of an arbitration agreement. See Erwin
v. Citibank, N.A., No. 3:16-CV-03040-GPC-KSC, 2017 WL 1047575, at *4 (S.D. Cal. Mar.
20, 2017) (“[W]hether or not Plaintiff opted out of the 2015 Arbitration Agreement is
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.
Case 3:20-cv-00002-BAS-AHG Document 17 Filed 11/17/20 PageID.124 Page 2 of 2
dispositive of the first gateway question of arbitrability—it goes to the very heart of
whether an agreement to arbitrate exists.”).
The Court finds it appropriate to grant Defendants’ request for limited discovery.
The letter is directly related to whether an arbitration agreement was formed between the
parties. The authenticity of the letter, specifically the date of its creation, is central to
resolving whether or not Plaintiff timely opted out of the arbitration agreement.
Defendants require the letter itself to determine whether the testimony of an ESI expert
will be necessary at the evidentiary hearing. This testimony, in turn, may be necessary to
the Court’s determination of the sole underlying issue in this case.
Further, the Court finds it appropriate to grant this relief ex parte. See Mission Power
Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995) (ex parte relief is
appropriate where moving party shows it will suffer irreparable harm if the motion is not
heard on an expedited schedule and that it did not create the circumstances warranting ex
application. They have sufficiently demonstrated that they attempted to contact Plaintiff
by telephone and email numerous times over a two-week period regarding production of
the letter—and the filing of the instant application—but received no response. (Decl. of
Elizabeth C. Farrell ¶¶ 2–4, ECF No. 16; Ex. A to Farrell Decl.) Second, as stated above,
Defendants will suffer irreparable harm if they are unable to determine what evidence will
be necessary to carry their burden at the evidentiary hearing.
First, Defendants did not create the circumstances necessitating this
Accordingly, the Court GRANTS Defendants’ Application (ECF No. 16).
Defendants shall serve on Plaintiff, no later than November 19, 2020, a request for
production of the opt-out letter referenced in Plaintiff’s Opposition to Defendants’ Motion
to Compel (ECF No. 11), in native format (i.e., including any ESI), and any copies thereof.
Plaintiff is ordered to respond to such request no later than November 25, 2020.
IT IS SO ORDERED.
DATED: November 17, 2020
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?