Suzhou Parsun Power Machine Co Ltd et al v. Western Import Manufacturing Distribution Group LTD et al

Filing 19

ORDER signed by Judge Rudolph T Randa on 07/20/2010 denying 13 Motion expedited discovery. (cc: all counsel; via US Mail to Shelley Anne Hudson and Western Import Manufacturing Distribution Group Ltd) (Koll, J)

S u z h o u Parsun Power Machine Co Ltd et al v. Western Import Manufacturing D...ibution Group Ltd et al

D o c . 19

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

S U Z H O U PARSUN POWER MACHINE CO., Ltd., a foreign (Chinese) corporation, and M A R S ELECTRIC, LLC, a Wisconsin limited liability company, P l a i n t if f s , C a s e No. 10-C-398 -vsW E S T E R N IMPORT MANUFACTURING D I S T R I B U T I O N GROUP Ltd., a foreign (Canadian) corporation, SHELLEY A N N E HUDSON, and JOHN HUDSON, Defendants.

D E C IS IO N AND ORDER

N o w before the Court is the plaintiffs' motion for expedited discovery. Two of the d e f en d a n ts , Western Import Manufacturing ("Western Import") and Shelley Anne Hudson, w e re served in British Columbia, Canada in early June. The third defendant, John Hudson, a ls o apparently lives in Canada but has not been not served. Plaintiffs want expedited d is c o v e ry to ascertain the location of Mr. Hudson for service. " A party may not seek discovery from any source before the parties have conferred a s required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 2 6 (a )(1 )(B ), or when authorized by these rules, by stipulation, or by court order." Fed. R. C iv . P. 26(d)(1). The parties are not required to meet and confer until the Court orders a s c h e d u lin g conference, and the Court does not proceed to scheduling until all of the parties

Dockets.Justia.com

h a v e been served and appear in a case. Therefore, the plaintiffs may not commence d is c o v e ry at this time without consent of the defendants or an order from the Court. Fed. R. C iv. P. 26(f)(1); Fed. R. Civ. P. 16(b)(2). T h e Court may grant a request for expedited discovery for good cause. Sheridan v. O a k Creek Mortgage, LLC, 244 F.R.D. 520, 521 (E.D. Wis. 2007) (collecting cases).1 The C o u r t must evaluate the "entirety of the record to date and the reasonableness of the request in light of all the surrounding circumstances." Id. at 522. Relevant factors include: (1) w h e th e r a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the p u rp o se for requesting the expedited discovery; (4) the burden on the defendants to comply w ith the requests; and (5) how far in advance of the typical discovery process the request was m a d e . In re Fannie Mae Derivative Litig., 227 F.R.D. 142, 142-43 (D.D.C. 2005). Plaintiffs argue that they should be allowed expedited discovery because it is the best w a y to obtain a current address for John Hudson. This may be true, but the plaintiffs do not reque st limited discovery directed towards finding John Hudson's address. Instead, plaintiffs w an t to commence discovery on the assumption that they will eventually find John Hudson's a d d re ss . Also, this matter was filed only 9 weeks ago on May 11. The parties' duty to meet a n d confer is not triggered until the Court signals its intent to issue a scheduling order, and th is does not occur until all of the parties have appeared. Nothing in the federal rules

Other cases apply a more stringent test that mirrors the factors for issuing a preliminary injunction, known as th e Notaro test. See Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982). This standard is inapplicable because the plaintiffs d o not assert that they will suffer irreparable harm in the absence of expedited discovery. Cf. Landwehr v. Fed. Deposit I n s . Co., No. 09-0716 (RMU), -- F. Supp. 2d -- , 2010 W L 2572077, at *2 (D.D.C. June 28, 2010); Centrifugal A c q u is itio n Corp. v. Moon, No. 09-C-327, 2009 W L 1249294, at *1 (E.D. W is . May 6, 2009).

1

-2-

re q u ire s the Court to act more quickly. Fed. R. Civ. P. 16(b)(2) (judge must issue the s c h e d u lin g order "as soon as practicable, but in any event within the earlier of 120 days after a n y defendant has been served with the complaint or 90 days after any defendant has a p p e are d " ). This may seem circular because discovery cannot commence until Mr. Hudson is served, but again, the plaintiffs are not seeking limited discovery. If plaintiffs are having d if f ic u lty serving Mr. Hudson pursuant to the Hague Convention, Fed. R. Civ. P. 4(f)(2), the f e d e ra l rules allow service by alternative means. Fed. R. Civ. P. 4(f)(3); BP Products North A m . v. Dagra, 236 F.R.D. 270, 272 (E.D. Va. 2006) (recognizing service by publication in a foreign country where other means have failed). Finally, Ms. Hudson is currently

p ro c e ed in g pro se, and Western Import has yet to appear by counsel. The Court is hesitant to allow expedited discovery against parties that are unrepresented by counsel. NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT plaintiffs' motion for expedited discovery [D. 13] is DENIED. D a te d at Milwaukee, Wisconsin, this 20th day of July, 2010. S O ORDERED,

s / Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge

-3-