(PS) Aussieker v. Nelson

Opinion

MARK AUSSIEKER, No. 2:19-cv-0868 MCE DB PS Plaintiff, v. ORDER ERIC NELSON, et al., Defendants. Plaintiff Mark Aussieker is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On May 23, 2019, plaintiff filed a motion for leave to take discovery prior to a “Rule 26(f) conference.” (ECF No. 4 at 1.) Plaintiff’s motion, however, was not noticed for hearing as required by Local Rule 230. Moreover, “Rule 26(d) of the Federal Rules of Civil Procedure generally provides that formal discovery will not commence until after the parties have conferred as required by Rule 26(f).” Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003); In re Countrywide Fin. Corp. Derivative Litiq., 542 F.Supp.2d 1160, 1179 (C.D. Cal. 2008); Ayyash v. Bank Al–Madina, 233 F.R.D. 325, 326 (S.D. N.Y. 2005). “However, courts may permit expedited discovery before the Rule 26(f) conference upon a showing of good cause.” In re Countrywide Fin. Corp. Derivative Litig., 542 F.Supp.2d at 1179; Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002); see also Qwest Commc’ns Int’l, Inc., 213 F.R.D. at 419 (The “party seeking expedited discovery in advance of [the] Rule 26(f) conference has the burden of showing good cause for the requested departure from usual discovery procedures.”); Merrill Lynch, Pierce, Fenner & Smith v. O’Connor, 194 F.R.D. 618, 623 (N.D. Ill. 2000) (“Expedited discovery is not the norm. Plaintiff must make some prima facie showing of the need for the expedited discovery.”). “Good cause exists ‘where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.’” In re Countrywide Fin. Corp. Derivative Litig., 542 F.Supp.2d at 1179 (quoting Semitool, Inc., 208 F.R.D. at 276). Here, plaintiff seeks “an order allowing him to immediately serve . . . a subpoena on Verizon” to obtain subscriber information for a specific phone number. (ECF No. 4 at 10.) Plaintiff asserts that “without expedited discovery” plaintiff “will be unable to identify the Defendants with sufficient particularity to effect service of process[.]” (Id. at 3.) However, plaintiff’s complaint identifies four defendants and summons have issued for those defendants. (ECF Nos. 1 & 2.) And plaintiff’s motion asserts that “on 5/15/2018, 5/19/2018 and 5/22/2018,” plaintiff made attempts “to meet and confer with Defendant[.]” (ECF No. 4 at 2.) In this regard, it is entirely unclear why expedited discovery is necessary if plaintiff is aware of the identity of one or more defendants. It may be that plaintiff is seeking expedited discovery because plaintiff has been unable to serve the defendants. In this regard, on August 16, 2019, plaintiff filed a motion for an 180-day extension of time to serve the defendants. (ECF No. 5.) Rule 4 of the Federal Rules of Civil Procedure (“Rule”) provides that if a defendant is not served within 90 days the defendant must be dismissed from the action without prejudice. Fed. R. Civ. P 4(m). However, Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a showing of excusable neglect. Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009)). Here, plaintiff's motion demonstrates good cause for extending the time for service. Specifically, the motion demonstrates that plaintiff has been diligent in attempting to effect service and “engaged a process server[.]” (ECF No. 5 at 2.) Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiffs May 23, 2019 motion for leave to take discovery (ECF No. 4) is denied without prejudice to renewal; 2. Plaintiffs August 16, 2019 motion an extension of time to complete service (ECF No. 5) is granted; and 3. Plaintiff is granted an additional sixty days from the date of this order to complete service upon the defendants. Dated: February 21, 2020 -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 71 DLB:6 DB\orders\orders.pro se\aussieker0868.exp.disc.den.ord