4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6
7 YAUSMENDA FREEMAN, Case No. 2:21-cv-01137-APG-NJK 8 Petitioner(s), Order 9 v. [Docket Nos. 12, 35, 39] 10 EQUIFAX, INC., 11 Respondent(s). 12 Pending before the Court is Petitioner’s third amended petition to perpetuate testimony, 13 Docket No. 12,1 Respondent’s motion to dismiss that petition, Docket No. 35, and Petitioner’s 14 motion to strike, Docket No. 39. The motions are properly resolved without a hearing. See Local 15 Rule 78-1. For the reasons discussed more fully below, Petitioner’s petition to perpetuate 16 testimony is DENIED, Respondent’s motion to dismiss is DENIED as moot, and Petitioner’s 17 motion to strike is DENIED.2 18
19 1 As Petitioner is proceeding without an attorney, the Court construes her filings liberally. 20 Erickson v. Pardus, 551 U.S. 89, 94 (2007). 21 2 Petitioner’s request is at bottom a discovery-type issue and magistrate judges are frequently tasked with resolving discovery disputes. See, e.g., Columbia Pics., Inc. v. Bunnell, 22 245 F.R.D. 443, 448 (C.D. Cal. 2007). Denying that request is non-dispositive in nature even though this discovery issue is the only matter being litigated in this miscellaneous action. See, 23 e.g., In re Judicial Assistance Pursuant to 28 U.S.C. 1782 by Macquarie Bank Ltd., 2015 WL 3439103, at *3 (D. Nev. May 28, 2015) (collecting cases), objections overruled, 2015 WL 24 7258483, at *2-3 (D. Nev. Nov. 17, 2015). Indeed, nothing herein prevents Petitioner from filing a separate lawsuit on any substantive claim she may have against Respondent. Accordingly, the 25 undersigned resolves this matter through issuance of an order. Cf. Freeman v. TransUnion, LLC, 2021 WL 5500488, at *1 n.2 (D. Nev. Nov. 22, 2021). Of course, to the extent either party 26 disagrees with this characterization, they are free to raise such arguments in any objection to this order. See Florence v. Stanback, 607 F. Supp. 2d 1119, 1122 (C.D. Cal. 2009); see also Bastidas 27 v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015) (as part of waiver analysis, encouraging magistrate judges to advise litigants of the ability to object to a determination that a matter is non- 28 dispositive). 1 I. MOTION TO STRIKE (Docket No. 39) 2 The Court begins with Petitioner’s motion to strike. Docket No. 39.3 Petitioner argues that 3 opposing counsel has violated the duty imposed by Rule 11(b) of the Federal Rules of Civil 4 Procedure to provide accurate representations to the Court and, as a result, that their filings should 5 be stricken. See, e.g., id. at 4-6. In particular, Petitioner contends that various attorneys committed 6 fraud by filing documents on behalf of “Equifax Information Services LLC” when Petitioner sued 7 “Equifax Inc.” See, e.g., id.4 As counsel has made clear, Equifax, Inc. is the parent company of 8 Equifax Information Services LLC. Docket No. 48. Filings have been made on behalf of the latter 9 because counsel believe that Petitioner identified the wrong entity in her petition. See id.; see also 10 Docket No. 39 at 7 (Petitioner acknowledging this reasoning advanced by opposing counsel). The 11 Court finds no basis on which to conclude that these attorneys are committing fraud.5 12 Accordingly, the Court will deny the motion to strike. 13 II. PETITION TO PERPETUATE TESTIMONY (Docket No. 12) 14 The Court next turns to Petitioner’s request to perpetuate testimony. Docket No. 12. The 15 Federal Rules of Civil Procedure provide a framework for persons wanting to perpetuate testimony 16 by taking a deposition before an action is filed. See Fed. R. Civ. P. 27(a); see also Freeman, 2021 17 WL 5500488, at *1.6 The circumstances in which such a deposition is warranted are limited. The 18 3 Petitioner has filed a petition for writ of mandamus. Docket No. 45. The filing of that 19 petition does not divest this Court of its jurisdiction. See Ellis v. U.S. Dist. Ct. for W. Dist. of Wash., 360 F.3d 1022, 1023 (9th Cir. 2004) (en banc). 20 4 The motion raises other issues that may also be aimed at trying to strike Respondent’s 21 filings. See, e.g., id. at 5 (alleging service of process irregularity). Any argument presented for striking Respondent’s documents that is not explicitly addressed herein has been rejected as 22 unpersuasive. Cf. V5 Tecs. v. Switch, Ltd., 334 F.R.D. 306, 314 n.12 (D. Nev. 2019). It also appears that Petitioner may be seeking relief other than striking the subject filings. See, e.g., 23 Docket No. 39 at 11 (appearing to seek relief from prior denial of request for entry of default). Such requests are not properly before the Court, see Local Rule IC 2-2(b) (separate motions must 24 be filed for different types of relief), so the Court does not opine herein on those issues. 25 5 Nor does the Court discern any type of prejudice to Petitioner based on the existence of filings that express a belief that the wrong entity has been sued. Petitioner’s request for relief fails 26 regardless of whether the arguments addressed herein were advanced by “Equifax,” “Equifax Inc.,” or “Equifax Information Services LLC.” 27 6 Petitioner refers to Rule 27(c). Docket No. 12 at 2, 11. The Ninth Circuit has explained 28 that Rule 27(c) “was not intended to expand the applicability of the other provisions of the Rule.” Nev. v. O’Leary, 63 F.3d 932, 936-37 (9th Cir. 1995). Moreover, the required showing is the same 1 first requirement for obtaining such relief is that the petitioner expects to be a party to an action 2 but cannot presently bring it or cause it to be brought. Fed. R. Civ. P. 27(a)(1)(A); O’Leary, 63 3 F.3d at 935. The case law further clarifies that this inability cannot be premised on a lack of 4 evidence that the deposition is meant to cure; the deposition cannot be used as a means to gather 5 facts to bring suit. See, e.g., Cole, 2011 WL 13240402, at *2. Another requirement for obtaining 6 relief is that the petitioner has shown that the testimony may be lost if not obtained immediately. 7 See Calderon v. U.S. Dist. Ct. for N. Dist. of Cal., 144 F.3d 618, 621 (9th Cir. 1998). Such 8 circumstances might derive in a particular case where a witness is gravely ill, elderly, or likely to 9 leave the country for a prolonged period. See, e.g., Cole, 2011 WL 13240402, at *2.7 10 The Court agrees with Respondent that an insufficient showing has been made on these 11 issues. See Docket No. 35. First, Petitioner claims that she may file suit for alleged consumer 12 protection violations related to her request that Respondent remove certain information from her 13 credit report, see, e.g., Docket No. 12 at ¶¶ 28-55, 57, but Petitioner contends that she cannot bring 14 that lawsuit until an IRS audit is completed, see id. at ¶ 57. A vague reference to an IRS audit is 15 not sufficient to show an inability to bring suit and Petitioner has not otherwise explained why her 16 expected lawsuit cannot be filed now. Freeman, 2021 WL 5500488, at *2.8 Second, Petitioner 17 claims on information and belief that evidence may not be preserved. See Docket No. 12 at ¶ 54.
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4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6
7 YAUSMENDA FREEMAN, Case No. 2:21-cv-01137-APG-NJK 8 Petitioner(s), Order 9 v. [Docket Nos. 12, 35, 39] 10 EQUIFAX, INC., 11 Respondent(s). 12 Pending before the Court is Petitioner’s third amended petition to perpetuate testimony, 13 Docket No. 12,1 Respondent’s motion to dismiss that petition, Docket No. 35, and Petitioner’s 14 motion to strike, Docket No. 39. The motions are properly resolved without a hearing. See Local 15 Rule 78-1. For the reasons discussed more fully below, Petitioner’s petition to perpetuate 16 testimony is DENIED, Respondent’s motion to dismiss is DENIED as moot, and Petitioner’s 17 motion to strike is DENIED.2 18
19 1 As Petitioner is proceeding without an attorney, the Court construes her filings liberally. 20 Erickson v. Pardus, 551 U.S. 89, 94 (2007). 21 2 Petitioner’s request is at bottom a discovery-type issue and magistrate judges are frequently tasked with resolving discovery disputes. See, e.g., Columbia Pics., Inc. v. Bunnell, 22 245 F.R.D. 443, 448 (C.D. Cal. 2007). Denying that request is non-dispositive in nature even though this discovery issue is the only matter being litigated in this miscellaneous action. See, 23 e.g., In re Judicial Assistance Pursuant to 28 U.S.C. 1782 by Macquarie Bank Ltd., 2015 WL 3439103, at *3 (D. Nev. May 28, 2015) (collecting cases), objections overruled, 2015 WL 24 7258483, at *2-3 (D. Nev. Nov. 17, 2015). Indeed, nothing herein prevents Petitioner from filing a separate lawsuit on any substantive claim she may have against Respondent. Accordingly, the 25 undersigned resolves this matter through issuance of an order. Cf. Freeman v. TransUnion, LLC, 2021 WL 5500488, at *1 n.2 (D. Nev. Nov. 22, 2021). Of course, to the extent either party 26 disagrees with this characterization, they are free to raise such arguments in any objection to this order. See Florence v. Stanback, 607 F. Supp. 2d 1119, 1122 (C.D. Cal. 2009); see also Bastidas 27 v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015) (as part of waiver analysis, encouraging magistrate judges to advise litigants of the ability to object to a determination that a matter is non- 28 dispositive). 1 I. MOTION TO STRIKE (Docket No. 39) 2 The Court begins with Petitioner’s motion to strike. Docket No. 39.3 Petitioner argues that 3 opposing counsel has violated the duty imposed by Rule 11(b) of the Federal Rules of Civil 4 Procedure to provide accurate representations to the Court and, as a result, that their filings should 5 be stricken. See, e.g., id. at 4-6. In particular, Petitioner contends that various attorneys committed 6 fraud by filing documents on behalf of “Equifax Information Services LLC” when Petitioner sued 7 “Equifax Inc.” See, e.g., id.4 As counsel has made clear, Equifax, Inc. is the parent company of 8 Equifax Information Services LLC. Docket No. 48. Filings have been made on behalf of the latter 9 because counsel believe that Petitioner identified the wrong entity in her petition. See id.; see also 10 Docket No. 39 at 7 (Petitioner acknowledging this reasoning advanced by opposing counsel). The 11 Court finds no basis on which to conclude that these attorneys are committing fraud.5 12 Accordingly, the Court will deny the motion to strike. 13 II. PETITION TO PERPETUATE TESTIMONY (Docket No. 12) 14 The Court next turns to Petitioner’s request to perpetuate testimony. Docket No. 12. The 15 Federal Rules of Civil Procedure provide a framework for persons wanting to perpetuate testimony 16 by taking a deposition before an action is filed. See Fed. R. Civ. P. 27(a); see also Freeman, 2021 17 WL 5500488, at *1.6 The circumstances in which such a deposition is warranted are limited. The 18 3 Petitioner has filed a petition for writ of mandamus. Docket No. 45. The filing of that 19 petition does not divest this Court of its jurisdiction. See Ellis v. U.S. Dist. Ct. for W. Dist. of Wash., 360 F.3d 1022, 1023 (9th Cir. 2004) (en banc). 20 4 The motion raises other issues that may also be aimed at trying to strike Respondent’s 21 filings. See, e.g., id. at 5 (alleging service of process irregularity). Any argument presented for striking Respondent’s documents that is not explicitly addressed herein has been rejected as 22 unpersuasive. Cf. V5 Tecs. v. Switch, Ltd., 334 F.R.D. 306, 314 n.12 (D. Nev. 2019). It also appears that Petitioner may be seeking relief other than striking the subject filings. See, e.g., 23 Docket No. 39 at 11 (appearing to seek relief from prior denial of request for entry of default). Such requests are not properly before the Court, see Local Rule IC 2-2(b) (separate motions must 24 be filed for different types of relief), so the Court does not opine herein on those issues. 25 5 Nor does the Court discern any type of prejudice to Petitioner based on the existence of filings that express a belief that the wrong entity has been sued. Petitioner’s request for relief fails 26 regardless of whether the arguments addressed herein were advanced by “Equifax,” “Equifax Inc.,” or “Equifax Information Services LLC.” 27 6 Petitioner refers to Rule 27(c). Docket No. 12 at 2, 11. The Ninth Circuit has explained 28 that Rule 27(c) “was not intended to expand the applicability of the other provisions of the Rule.” Nev. v. O’Leary, 63 F.3d 932, 936-37 (9th Cir. 1995). Moreover, the required showing is the same 1 first requirement for obtaining such relief is that the petitioner expects to be a party to an action 2 but cannot presently bring it or cause it to be brought. Fed. R. Civ. P. 27(a)(1)(A); O’Leary, 63 3 F.3d at 935. The case law further clarifies that this inability cannot be premised on a lack of 4 evidence that the deposition is meant to cure; the deposition cannot be used as a means to gather 5 facts to bring suit. See, e.g., Cole, 2011 WL 13240402, at *2. Another requirement for obtaining 6 relief is that the petitioner has shown that the testimony may be lost if not obtained immediately. 7 See Calderon v. U.S. Dist. Ct. for N. Dist. of Cal., 144 F.3d 618, 621 (9th Cir. 1998). Such 8 circumstances might derive in a particular case where a witness is gravely ill, elderly, or likely to 9 leave the country for a prolonged period. See, e.g., Cole, 2011 WL 13240402, at *2.7 10 The Court agrees with Respondent that an insufficient showing has been made on these 11 issues. See Docket No. 35. First, Petitioner claims that she may file suit for alleged consumer 12 protection violations related to her request that Respondent remove certain information from her 13 credit report, see, e.g., Docket No. 12 at ¶¶ 28-55, 57, but Petitioner contends that she cannot bring 14 that lawsuit until an IRS audit is completed, see id. at ¶ 57. A vague reference to an IRS audit is 15 not sufficient to show an inability to bring suit and Petitioner has not otherwise explained why her 16 expected lawsuit cannot be filed now. Freeman, 2021 WL 5500488, at *2.8 Second, Petitioner 17 claims on information and belief that evidence may not be preserved. See Docket No. 12 at ¶ 54. 18 Petitioner also alleges that Respondent has not complied with its obligations in the past. See id. at 19
20 regardless of whether a petitioner relies on Rule 27(a) or Rule 27(c). See Cole v. Bank of Am., LLC, 2011 WL 13240402, at *2 n.1 (D. Nev. Sept. 7, 2011); see also 6 MOORE’S FEDERAL 21 PRACTICE, § 27.51 (3d ed.) (whether a request is brought under Rule 27(a) or Rule 27(c), the required showing is “almost identical”). The specific requirements identified herein have been 22 found to apply in the context of Rule 27(c). See, e.g., Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 440 (7th Cir. 1994) (discovery may be obtained under Rule 27(c) for documents “if they 23 are competent records, material to the matter in controversy, that cannot be obtained in ordinary discovery because the plaintiff is not yet in a position to initiate such an action, but that might be 24 lost if the plaintiff cannot now obtain them”). 25 7 The Court does not identify herein all of the requirements for obtaining the relief being sought. Given the shortcomings identified herein, the Court need not opine on whether Petitioner 26 has complied with the other applicable requirements. 27 8 Petitioner also references that she has yet to file her 2020 tax return and that it may be audited. Id. at ¶ 59. Such vague reference to the 2020 tax return likewise fails to show that the 28 lawsuit described cannot be brought now. Freeman, 2021 WL 5500488, at *2. 1} § 26. Petitioner’s fear of lost evidence is speculative and is not supported by the record. Freeman, 2021 WL 5500488, at *2. 3 Accordingly, Petitioner has not demonstrated that she is entitled to a deposition before 4] filing suit and the Court will deny her petition to perpetuate testimony. MOTION TO DISMISS (Docket No. 35) 6 In light of the denial of the petition to perpetuate testimony, Respondent’s motion to 7| dismiss will be denied as moot. IV. CONCLUSION 9 For the reasons discussed more fully above, Petitioner’s petition to perpetuate testimony 1s 10] DENIED, Respondent’s motion to dismiss is DENIED as moot, and Petitioner’s motion to strike 11] is DENIED. 12 IT IS SO ORDERED. 13 Dated: January 20, 2022 14 4 x — □ Nancy J. Koppe’, 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28