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Lycurgan, Inc. v. Griffith

United States District Court, S.D. California

June 21, 2017

LYCURGAN, INC., a California corporation, d/b/a/ARES AMOR, Plaintiff,
v.
EARL GRIFFITH, an individual, UNKNOWN NAMED TECHNOLOGIST, an individual UNKNOWN NAMED AGENTS I-VII, individuals, and DOES 1-X, in their individual capacities, Defendants.

          ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO TAKE IMMEDIATE DISCOVERY OF PERSON(S) MOST KNOWLEDGEABLE AT THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES REGARDING IDENTITIES OF UNKNOWN NAMED DEFENDANTS [DOC. NO. 117]

          Hon. Karen S. Crawford Judge.

         Presently before the Court is plaintiffs ex parte Motion to Take Immediate Discovery From the Person(s) Most Knowledgeable at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“BATFE”) Regarding the Identities of the Unknown Named Defendants in this case (“Motion”). [Doc. No. 117.] Also before the Court is defendants' Opposition to the Motion [Doc. No. 131] and plaintiffs Reply in Support of the Motion [Doc.Nos. 132-1; 134].

         Specifically, plaintiff seeks to conduct immediate discovery by serving the Proposed Notice of Deposition and Request for Production of Documents “on the person(s) most knowledgeable at the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE or the Agency) prior to a conference of the parties required by Federal Rule of Civil Procedure 26(f) in order to learn the identities of Defendants (1) Unknown Named Technologist, (2) Unknown Named Agents I-VII, and (3) Does I-XI, in their individual capacities (the ‘Unknown Named Defendants') and to serve them with process.” [Doc. No. 117-3, at pp. 10, 34.] Plaintiff asserts that the information sought is necessary “in order to amend its pleadings to name the Unknown Named Defendants” and contends that he will “suffer undue prejudice without such discovery in the form of dismissals and delays from suit.” Id. For the reasons provided below, the Court denies without prejudice plaintiffs Motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On March 11, 2014, plaintiff filed a Complaint, seeking a declaratory judgment that its “EP Arms unfinished lower receiver is not a firearm, ” a temporary restraining order (“TRO”), and injunctive relief forbidding the BATFE from seizing plaintiffs unfinished lower receivers and customer list. [Doc. Nos. 1, 2.] The same day, the Court granted plaintiffs request for a TRO. [Doc. No. 4.] On March 14, 2014, the Court clarified that the TRO did not enjoin defendants from lawfully seizing evidence and contraband pursuant to a valid search warrant. [Doc. No. 6.]

         After the issuance and execution of a search warrant in which BATFE agents seized property from four of plaintiffs facilities, plaintiff filed a First Amended Complaint (“FAC”) on December 17, 2014, alleging First, Second, Fourth and Fifth Amendment violations. [Doc. No. 42.] Plaintiff brought its FAC against B. Todd Jones in his official capacity as Director of the BATFE. Id. The FAC also named the following individual defendants: Earl Griffith, Unknown Named Technologist, Unknown Named Agents I-VII, and Does I-X. Id. On November 19, 2015, the Court dismissed without prejudice plaintiffs first, fourth, eighth, and ninth claims against Defendant Jones under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Doc. No. 106.] On July 5, 2016, the Court issued an Order Directing Plaintiff to Either File a Second Amended Complaint or Face Involuntary Dismissal of Action for Failure to Prosecute noting that «<[i]n the more than seven months since [the Court's Order at Doc. No. 106], Plaintiff has taken no further action in this case.” [Doc. No. 108, at p. 1.] The Court cited Federal Rule of Civil Procedure 41(b) and gave plaintiff thirty (30) days to file a second amended complaint. Id. at p. 2.

         On August 5, 2016, plaintiff filed a Second Amended Complaint (“SAC”). [Doc. No. 109.] Plaintiff brought its SAC against Earl Griffith, in his individual capacity, and the Unknown Named Defendants, in their individual capacities. Id. On February 28, 2017, defendants filed a Motion to Dismiss as to Mr. Griffith on the following grounds: (1) plaintiff cannot establish personal jurisdiction over Mr. Griffith; (2) plaintiff did not timely serve Mr. Griffith (citing Federal Rule of Civil Procedure 4(m)); (3) plaintiffs SAC does not state a plausible claim for relief against Mr. Griffith; and (4) Mr. Griffith is entitled to qualified immunity. [Doc. No. 115-1.] On May 30, 2017, defendants also filed a Motion to Dismiss Unknown Named Defendants under Federal Rule of Civil Procedure 4(m) and 12(b)(5), contending that the Rule 4(m) deadline expired in this case more than two years ago, and plaintiff has neither applied for nor obtained an extension. [Doc. No. 126-1.] Both of defendants' Motions to Dismiss are currently pending before Judge Sammartino.

         II. LEGAL STANDARD FOR EXPEDITED DISCOVERY

         Discovery is generally not permitted without a court order before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed.R.Civ.P. 26(d)(1). Courts in the Ninth Circuit generally grant requests for expedited discovery when the moving party shows good cause. Semitool, Inc. v. Tokyo Elec. Am. Inc., 208 F.R.D. 273, 275-276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. [Citation omitted.] In determining whether there is good cause to allow expedited discovery to identify doe defendants, courts consider factors including whether: (1) the plaintiff can identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps taken to locate the elusive defendant; (3) the plaintiffs suit against defendant could withstand a motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.” Columbia Ins. Co. v. seescand.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

         III. DISCUSSION

         A. Plaintiffs Argument

         Plaintiff argues at length in the Motion about the facts which plaintiff establish good cause to take early discovery, including: (1) how the defendants are real persons subject to a lawsuit whom plaintiff has identified with specificity; (2) the steps taken to serve the Unknown Named Defendants; (3) the claims against the Unknown Named Defendants are not subject to dismissal; and (4) that plaintiff will likely identify the Unknown Named Defendants through what plaintiff contends is narrowly targeted discovery. [Doc. No. 117- 3, at pp. 17-33.] Further, plaintiffs counsel contends in his Declaration attached to the Reply in Support of the Motion as follows:

Plaintiff seeks narrowly tailored discovery to obtain the names of the Unknown Named Defendants who participated in a specific event: the raids on [p]laintiff s four facilities on March 15, 2014, as well as those individuals who were responsible for obtaining the search warrant and its supporting affidavit.
The only step left in obtaining the names of the Unknown Named Defendants is to ask for their identities, to which the person(s) most knowledgeable at the Bureau of Alcohol, Tobacco, Firearms, and Explosives should have access. Good faith responses to the proposed deposition topics and requests for production of documents should reveal the requested names and identities. The proposed subpoena to testify at a deposition in a civil action for the person most knowledgeable at the BATFE, and request ...

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