1 2 3 4
5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 JANET SHELLMAN SHERMAN, CASE NO. 2:24-cv-00408-TL 12 Plaintiff, ORDER ON MOTIONS FOR v. SUBPOENAS 13 JAMES A KRUSE et al., 14 Defendants. 15
16 This case concerns an alleged assault and subsequent malicious prosecution. The matter 17 comes before the Court on Plaintiff Janet Shellman Sherman’s motions seeking issuance of 18 subpoenas to non-parties (Dkt. Nos. 22, 24). Having reviewed the motions and the relevant 19 record, the Court DENIES both motions. 20 I. BACKGROUND 21 Plaintiff is proceeding pro se (without an attorney). Plaintiff makes many allegations, but 22 they primarily appear to center around an alleged assault while she was leaving a diner in the 23 Deer Harbor Marina at night. See generally Dkt. Nos. 4, 18. While the pleadings are not entirely 24 1 clear, it appears that after a brief altercation upon her exit from the diner, Plaintiff attempted to 2 drive away and struck her alleged assailant, Defendant James A. Kruse, with her car. Dkt. No. 4. 3 Plaintiff takes issue with the resulting police investigation and alleges a malicious prosecution in 4 addition to a host of other harms. Id. She has filed suit against Defendant Kruse, the owners of
5 the diner, employees of the San Juan County Sheriff’s Office, and others. 6 Plaintiff initially filed a proposed complaint on March 18, 2024. Dkt. No. 1. Ten days 7 later, she paid the civil case filing fee, and her complaint was lodged with the Court. Dkt. No. 4. 8 The next month, she filed several “supplemental” documents (Dkt. Nos. 5, 6) and on July 1, she 9 filed a “Second Amended Complaint.”1 Dkt. No. 18. In the meantime, she has filed a series of 10 petitions and requests regarding service which resulted in the issuance of amended summons. See 11 Dkt. Nos. 7, 11, 13–17, 19–21. 12 On July 9, Plaintiff filed her first motion for a subpoena. Dkt. No. 22. On July 11, 13 Defendant Kruse appeared, filing his first of two answers to the complaint. Dkt. No. 24 (first 14 answer); see also Dkt. No. 27 (second answer). Defendant Kruse is pro se. That same day,
15 Plaintiff filed her second subpoena motion. Dkt. No. 24. 16 On July 12, Defendant Margaret Weidner appeared by filing her “Supplement to 17 Response.” Dkt. No. 26.2 Defendant Weidner is also pro se. On July 16, attorneys appeared on 18 behalf of Defendant Dennis Schilling. Dkt. Nos. 31, 32. To date, the remaining defendants have 19 not appeared. 20
21 1 A later-filed complaint would typically serve as an operative complaint that effectively cancels the original complaint. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (“[A]n amended 22 pleading supersedes the original.”). However, the “Second Amended Complaint” appears to be more of a supplement to the original complaint than a replacement. See Dkt. No. 18 at 1 (entitled “III. Statement of Claim, 23 continued”). 2 The Court is not in receipt of Defendant Weidner’s original response, although she indicates that it was submitted 24 to the Court on July 9, 2024. See Dkt. No. 26 at 1. 1 Plaintiff seeks issuance of subpoenas to two non-parties. The first is directed to what may 2 be an internet service provider, Rock Island Communications, to obtain the router used by one of 3 the defendant police detectives in his home and to preserve his router activity information “until 4 such time that [the] FBI can determine the identity of [a] Hacker associated with the Plaintiff’s
5 router.” Dkt. No. 22 at 1–2. The second subpoena is directed to the Law Enforcement Division of 6 the Washington State Liquor and Cannabis Board. It would require the Board to send an 7 investigator to the car accident scene to “recreate the scenario relayed to court [by] Plaintiff and 8 the alternative scenario relayed by Defendant Kruse and Weidner” and then “render an 9 ‘unbiased’ decision.” Dkt. No. 24 at 1–2. 10 II. LEGAL STANDARD 11 Under the Federal Rules of Civil Procedure, parties may seek to command production of 12 “documents, electronically stored information, or tangible things” or “inspection of premises at 13 the premises to be inspected” by individuals or entities that are non-parties to the litigation. See 14 Fed. R. Civ. P. 45(a)(1), (c)(2)(A)–(B). This is part of the discovery process.3 However, “[t]he
15 scope of third-party discovery is governed by Rule 26 and includes ‘any nonprivileged matter 16 that is relevant to a party's claim or defense and proportional to the needs of the case.’” Bel 17 Power Sols., Inc. v. Monolithic Power Sys., Inc., No. MC23-0008, 2023 WL 2401926, at *1 18 (W.D. Wash. Mar. 8, 2023) (quoting Fed. R. Civ. P. 26(b)(1)). 19 III. DISCUSSION 20 As a general rule, “[a] party may not seek discovery from any source before the parties 21 have conferred as required by Rule 26(f) . . . .” Fed. R. Civ P. 26(d)(1). The Rule 26(f) 22
23 3 For more information about the discovery process, and about litigation in this District in general, the Court refers the Parties to the Court’s webpage on “Representing Yourself (‘Pro Se’),” which is available at 24 https://perma.cc/5VKZ-J4Q3, as well as the Federal Bar Association’s Legal Clinic for unrepresented parties. Parties may schedule an appointment by calling 206-267-7070 and pressing “1” to leave a message. 1 conference is the beginning of the formal discovery process and involves the parties coming to a 2 joint agreement regarding a discovery plan and submitting that plan to the Court. See, e.g., 3 Wilson v. Yakima Police Dep’t, No. C23-3073, 2023 WL 6542754, at *1–2 (E.D. Wash. Oct. 6, 4 2023) (explaining this process).
5 The first subpoena motion was filed before any defendants had appeared in this case, and 6 the second was filed just after the first defendant’s appearance. The Court has not yet issued a 7 scheduling order setting a time for the Rule 26(f) conference. A court may find good cause to 8 allow discovery before the Rule 26(f) conference only where the need for early discovery, “in 9 consideration of the administration of justice, outweighs the prejudice to the responding party.” 10 See Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002); see 11 also Strike 3 Holdings, LLC v. Doe, No. C23-0289, 2023 WL 2505015, at *2 (S.D. Cal. Feb. 24, 12 2023) (noting that courts within this Circuit typically use the good cause standard for 13 determining whether to permit pre-conference discovery); accord Zavala v. Kruse-W., Inc., No. 14 C19-0239, 2019 WL 3219254, at *2 (E.D. Cal. July 17, 2019) (collecting cases).
15 It is the requesting party’s burden to demonstrate good cause to depart from the standard 16 discovery timeline. Rovio Ent. Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1099 (N.D. 17 Cal. 2012) (internal citation omitted). The types of factors a court may consider in determining 18 whether good cause exists for early discovery include: “(1) whether a preliminary injunction is 19 pending; (2) the breadth of the discovery request; (3) the purpose for requesting the [early] 20 discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in 21 advance of the typical discovery process the request was made.” Id. (internal citation omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4
5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 JANET SHELLMAN SHERMAN, CASE NO. 2:24-cv-00408-TL 12 Plaintiff, ORDER ON MOTIONS FOR v. SUBPOENAS 13 JAMES A KRUSE et al., 14 Defendants. 15
16 This case concerns an alleged assault and subsequent malicious prosecution. The matter 17 comes before the Court on Plaintiff Janet Shellman Sherman’s motions seeking issuance of 18 subpoenas to non-parties (Dkt. Nos. 22, 24). Having reviewed the motions and the relevant 19 record, the Court DENIES both motions. 20 I. BACKGROUND 21 Plaintiff is proceeding pro se (without an attorney). Plaintiff makes many allegations, but 22 they primarily appear to center around an alleged assault while she was leaving a diner in the 23 Deer Harbor Marina at night. See generally Dkt. Nos. 4, 18. While the pleadings are not entirely 24 1 clear, it appears that after a brief altercation upon her exit from the diner, Plaintiff attempted to 2 drive away and struck her alleged assailant, Defendant James A. Kruse, with her car. Dkt. No. 4. 3 Plaintiff takes issue with the resulting police investigation and alleges a malicious prosecution in 4 addition to a host of other harms. Id. She has filed suit against Defendant Kruse, the owners of
5 the diner, employees of the San Juan County Sheriff’s Office, and others. 6 Plaintiff initially filed a proposed complaint on March 18, 2024. Dkt. No. 1. Ten days 7 later, she paid the civil case filing fee, and her complaint was lodged with the Court. Dkt. No. 4. 8 The next month, she filed several “supplemental” documents (Dkt. Nos. 5, 6) and on July 1, she 9 filed a “Second Amended Complaint.”1 Dkt. No. 18. In the meantime, she has filed a series of 10 petitions and requests regarding service which resulted in the issuance of amended summons. See 11 Dkt. Nos. 7, 11, 13–17, 19–21. 12 On July 9, Plaintiff filed her first motion for a subpoena. Dkt. No. 22. On July 11, 13 Defendant Kruse appeared, filing his first of two answers to the complaint. Dkt. No. 24 (first 14 answer); see also Dkt. No. 27 (second answer). Defendant Kruse is pro se. That same day,
15 Plaintiff filed her second subpoena motion. Dkt. No. 24. 16 On July 12, Defendant Margaret Weidner appeared by filing her “Supplement to 17 Response.” Dkt. No. 26.2 Defendant Weidner is also pro se. On July 16, attorneys appeared on 18 behalf of Defendant Dennis Schilling. Dkt. Nos. 31, 32. To date, the remaining defendants have 19 not appeared. 20
21 1 A later-filed complaint would typically serve as an operative complaint that effectively cancels the original complaint. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) (“[A]n amended 22 pleading supersedes the original.”). However, the “Second Amended Complaint” appears to be more of a supplement to the original complaint than a replacement. See Dkt. No. 18 at 1 (entitled “III. Statement of Claim, 23 continued”). 2 The Court is not in receipt of Defendant Weidner’s original response, although she indicates that it was submitted 24 to the Court on July 9, 2024. See Dkt. No. 26 at 1. 1 Plaintiff seeks issuance of subpoenas to two non-parties. The first is directed to what may 2 be an internet service provider, Rock Island Communications, to obtain the router used by one of 3 the defendant police detectives in his home and to preserve his router activity information “until 4 such time that [the] FBI can determine the identity of [a] Hacker associated with the Plaintiff’s
5 router.” Dkt. No. 22 at 1–2. The second subpoena is directed to the Law Enforcement Division of 6 the Washington State Liquor and Cannabis Board. It would require the Board to send an 7 investigator to the car accident scene to “recreate the scenario relayed to court [by] Plaintiff and 8 the alternative scenario relayed by Defendant Kruse and Weidner” and then “render an 9 ‘unbiased’ decision.” Dkt. No. 24 at 1–2. 10 II. LEGAL STANDARD 11 Under the Federal Rules of Civil Procedure, parties may seek to command production of 12 “documents, electronically stored information, or tangible things” or “inspection of premises at 13 the premises to be inspected” by individuals or entities that are non-parties to the litigation. See 14 Fed. R. Civ. P. 45(a)(1), (c)(2)(A)–(B). This is part of the discovery process.3 However, “[t]he
15 scope of third-party discovery is governed by Rule 26 and includes ‘any nonprivileged matter 16 that is relevant to a party's claim or defense and proportional to the needs of the case.’” Bel 17 Power Sols., Inc. v. Monolithic Power Sys., Inc., No. MC23-0008, 2023 WL 2401926, at *1 18 (W.D. Wash. Mar. 8, 2023) (quoting Fed. R. Civ. P. 26(b)(1)). 19 III. DISCUSSION 20 As a general rule, “[a] party may not seek discovery from any source before the parties 21 have conferred as required by Rule 26(f) . . . .” Fed. R. Civ P. 26(d)(1). The Rule 26(f) 22
23 3 For more information about the discovery process, and about litigation in this District in general, the Court refers the Parties to the Court’s webpage on “Representing Yourself (‘Pro Se’),” which is available at 24 https://perma.cc/5VKZ-J4Q3, as well as the Federal Bar Association’s Legal Clinic for unrepresented parties. Parties may schedule an appointment by calling 206-267-7070 and pressing “1” to leave a message. 1 conference is the beginning of the formal discovery process and involves the parties coming to a 2 joint agreement regarding a discovery plan and submitting that plan to the Court. See, e.g., 3 Wilson v. Yakima Police Dep’t, No. C23-3073, 2023 WL 6542754, at *1–2 (E.D. Wash. Oct. 6, 4 2023) (explaining this process).
5 The first subpoena motion was filed before any defendants had appeared in this case, and 6 the second was filed just after the first defendant’s appearance. The Court has not yet issued a 7 scheduling order setting a time for the Rule 26(f) conference. A court may find good cause to 8 allow discovery before the Rule 26(f) conference only where the need for early discovery, “in 9 consideration of the administration of justice, outweighs the prejudice to the responding party.” 10 See Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002); see 11 also Strike 3 Holdings, LLC v. Doe, No. C23-0289, 2023 WL 2505015, at *2 (S.D. Cal. Feb. 24, 12 2023) (noting that courts within this Circuit typically use the good cause standard for 13 determining whether to permit pre-conference discovery); accord Zavala v. Kruse-W., Inc., No. 14 C19-0239, 2019 WL 3219254, at *2 (E.D. Cal. July 17, 2019) (collecting cases).
15 It is the requesting party’s burden to demonstrate good cause to depart from the standard 16 discovery timeline. Rovio Ent. Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1099 (N.D. 17 Cal. 2012) (internal citation omitted). The types of factors a court may consider in determining 18 whether good cause exists for early discovery include: “(1) whether a preliminary injunction is 19 pending; (2) the breadth of the discovery request; (3) the purpose for requesting the [early] 20 discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in 21 advance of the typical discovery process the request was made.” Id. (internal citation omitted). 22 Whether a plaintiff’s complaint has “substantial deficiencies,” is another consideration in 23 whether to permit early discovery. See Clayton v. Does, No. C24-0182, 2024 WL 2868562, at *2
24 1 (W.D. Wash. May 21, 2024) (denying early discovery, including service of subpoenas, partially 2 on this basis). 3 In this case, Plaintiff has not met the “good cause” standard to permit early discovery. 4 The requests would be unduly burdensome to comply with, are made far in advance of
5 discovery—the timeline for which has not even been set—and are not necessary to the resolution 6 of this case. Additionally, the requested subpoena to Rock Island Communications is not 7 sufficiently related to Plaintiff’s complaint. Finally, to the extent Plaintiff is concerned with the 8 preservation of evidence, she may send a letter called a “litigation hold” or “preservation letter.” 9 U.S. DIST. CT. W. DIST. OF WASH., “Pro Se Guide to Filing Your Lawsuit in Federal Court,” last 10 updated July 2024, available at https://perma.cc/V3KT-G297. Therefore, the Court DENIES both 11 subpoena motions. 12 IV. CONCLUSION 13 For the reasons above, Plaintiff’s motions for subpoenas to non-parties Rock Island 14 Communications and the Law Enforcement Division of the Washington State Liquor and
15 Cannabis Board are DENIED without prejudice (with leave to re-file in accordance with the 16 Federal Rules, if appropriate). 17 Dated this 18th day of July 2024. 18 A 19 Tana Lin 20 United States District Judge
21 22 23 24