The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
DENYING IN PART PLAINTIFF'S EX PARTE MOTION TO EXPEDITE ORDER GRANTING IN PART AND DISCOVERY [ECF No. 6]
On December 1, 2010, Plaintiff Nader Mikihail filed a complaint against Robken International Investment, LTD ("Robken") and Does 1-20 for breach of contract. Plaintiff alleges he negotiated a contract with Robken to purchase two tractors for the agreed sum of $124,000. (ECF No. 1 at 2.) Pursuant to their agreement, Plaintiff claims he wired $124,000 to Defendants; however, the tractors were never delivered. (Id.)
Plaintiff has been unable to locate Defendants to serve the summons and complaint. Thus, on June 17, 2011, Plaintiff filed the instant Motion for Expedited Discovery.*fn1 (ECF No. 6.) Plaintiff explains Mr. Robert Kent, a Robken sales representative, persuaded him to purchase the tractors. (Id. at 2.) At Kent's direction, Plaintiff wired money to Diamondbank PLC's Citibank N.A. account "for further credit to Robken Int'L Investment LTD." (Id.; Doc. 6-1 at 8, 10.) Plaintiff claims he received two invoices from Robken, as well as two invoices from Fortune N Shipping, the forwarding agent, and two Bills of Lading from Mediterranean Charter Shipping Company. However, based on subsequent investigations, Plaintiff alleges the entire transaction was a fraud, complete with false invoices, false shipping companies and elaborate false websites. (Id. at 6.) Plaintiff further alleges Mr. Kent had assumed a false identity and was using a false address. (Id.; ECF No. 6-2 at 8.) Since discovering the alleged fraud, Plaintiff has been unable to contact Defendants. He contends the "only true piece of information" provided during the transaction was the Citibank account number.
Accordingly, Plaintiff seeks leave to serve a subpoena on Citibank to ascertain Defendant's location and whether Plaintiff's funds are still in the account. (Id. at 7.) Plaintiff's proposed subpoena, attached as Exhibit C to the Declaration of Samy S. Henein in support of Plaintiff's Motion for Expedited Discovery, requests production of "[a]ny and all documents including check images, wire transfers, deposits, withdrawals, statements, or any other account activity," including "all addresses ever used in connection with this account, and details of all transactions that took place between June 1, 2009 and August 31, 2009." (Id. at11.) Because Plaintiff does not have a valid address for Defendants, he also seeks leave to serve Defendants with a copy of the subpoena by mailing it to Citibank, Defendants' known bank. In the alternative, Plaintiff requests leave to serve the subpoena without giving notice to Defendant.
In accordance with Federal Rule of Civil Procedure 26(d), discovery does not commence until parties to an action meet and confer as prescribed by Federal Rule of Civil Procedure 26(f), unless by court order or agreement of the parties. A court order permitting early discovery may be appropriate "where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D.Cal. 2002).
After reviewing Plaintiff's motion and the accompanying memorandum of points and authorities, the Court finds Plaintiff has made an adequate showing to warrant expedited discovery as to the location of Defendants only. Without such discovery, Plaintiff cannot locate Defendants and thus cannot pursue this action. However, Plaintiff fails to explain why information on the account's balance cannot be discovered during the normal course of litigation. Based thereon, IT IS HEREBY ORDERED:
1. Plaintiff may serve immediate discovery on Citibank N.A. to obtain information on Defendants' address or location only.
2. Based on the potential prejudice to Defendants without notice and an opportunity to be heard, Plaintiff may not serve discovery on Citibank to ascertain detailed account information.
3. Plaintiff may serve this subpoena without notice to Defendants.
cc: The Honorable James Lorenz