United States District Court, S.D. California
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S EX
PARTE MOTION FOR ISSUANCE OF LETTERS OF REQUEST [ECF NO.
HONORABLE MICHAEL S. BERG UNITED STATES MAGISTRATE JUDGE.
October 10, 2019, Plaintiff filed an “Ex Parte Motion
and Memorandum of Points and Authorities in Support of Ex
Parte Motion for Issuance of Letter of Request, ”
asking this court to issue a letter of request to Mexico
seeking Mexico's assistance compelling discovery from
Defendant Old Gringo, S.A. de C.V. (“OGS”) under
the Hague Evidence Convention. (ECF No. 189.) Defendants
filed their Opposition on October 15, 2019. (ECF No. 190.)
For the reasons discussed below, the Court
DENIES Plaintiff's motion
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
a former designer for Defendants Old Gringo, Inc.
(“OGI”) and Old Gringo, S.A. de C.V.
(“OGS”) (a Western wear manufacturer and
distributor and its Mexican sister company, together the
“Old Gringo Companies”) alleges that the
principles and officers of the Old Gringo Companies,
Defendants Ernest Tarut (“Tarut”) and Yan Ferry
(“Ferry”), told her in January 2013 that they
were giving her a 5% ownership interest in the Old Gringo
Companies, but in fact, no such interest was conveyed.
(See ECF No. 1.) This basic allegation underlies all
of the remaining causes of action in this case.
case was filed on September 28, 2017. (ECF No. 1.) The first
scheduling order was issued on March 2, 2018. (ECF No. 18.)
While Plaintiff requested discovery from OGI for the
financial and other corporate documents pertaining to OGS,
(see ECF Nos. 36, 58, 66), OGS did not file its
answer and make a general appearance in this case until June
17, 2019, (ECF No. 116). After Judge Bashant denied OGS'
motion for summary judgement, (see ECF No. 163), the
Court held telephonic case management conferences on
September 11 and 17, (ECF Nos. 174, 177), and on September
19, 2019, issued an amended scheduling order permitting
Plaintiff limited additional time to conduct fact discovery
as to OGS, (ECF No. 179).
to Plaintiff's counsel, he emailed a draft of
Plaintiff's proposed letter of request to Defendants'
counsel on September 27, 2019 and received an email back on
October 2, 2019, with “broad objections to the draft
Letter of Request and a suggestion that the parties should
present two versions of the draft Letter of Request to the
Court as attachments to a joint motion.” (See
ECF No. 189-2 at 2.) Counsel then explains, “[a]fter
studying the matter in detail both substantively and
procedurally and conferring with Plaintiff and third party
experts, I made some changes in response to Defendants'
comments and filed this ex parte motion with notice to
counsel for Defendants, because agreeing to all of
Defendants' objections would unduly prejudice
Plaintiff's rights to take discovery regarding Old Gringo
Mexico.” (Id.) Defendants describe a different
and more complete exchange of emails, that do not vary
significantly on these points. (ECF No. 190 at 3-4.)
did in fact file the instant motion on October 10, 2019, over
a week after Defendants' counsel sent him Defendants'
objections. (See ECF No. 189.) Defendants filed
their opposition on October 15, 20109. (ECF No. 190.)
Plaintiff failed to meet and confer as required by Civil
Local Rule 26.1(a)
number of different rules require litigants in this district
to meet and confer regarding discovery disputes before
calling upon the Court to resolve the parties'
disagreements. Federal Rule of Civil Procedure 37(a)(1)
provides that a party filing a motion to compel must certify
“that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without
court action.” Fed.R.Civ.P. 37(a)(1). Judge
Stormes' March 2, 2018 Schedule Order Regulating
Discovery and Other Pre-Trial Proceedings directed counsel,
in bolded font, to “promptly and in good faith meet and
confer with regard to all discovery disputes in compliance
with Local Rule 26.1(a).” (ECF No. 18 at 3.) Judge
Berg's Second Amended Scheduling Order Regulating
Discovery and Other Pre-Trial Proceedings, issued on
September 19, 2019 included a directive to comply with Local
Rule 26.1(a), identical to that of Judge Stormes. (ECF No.
179 at 5.) The same requirement is reiterated in Judge
Berg's Civil Chambers Rule IV.A. Civil Local Rule 26.1(a)
states that “[t]he Court will entertain no motion
pursuant to Rules 26 through 37, Fed. R. Civ. P., unless
counsel will have previously met and conferred concerning all
disputed issues. . . . If counsel have offices in the same
county, they are to meet and confer in person. If counsel
have offices in different counties, they are to confer by
telephone. Under no circumstances may the parties satisfy the
meet and confer requirement by exchanging written
correspondence.” S.D. Cal. Civ. L.R. 26.1(a).
instant motion involves Plaintiff's request that this
Court ask “the judicial authorities of Mexico to compel
discovery pertaining to [OGS].” (ECF No. 189 at 1.) It
relies on Federal Rule of Civil Procedure 28's directives
regarding taking depositions in foreign countries.
(See ECF No. 189 at 3.) Based on the foregoing, the
motion before the Court is unquestionably a discovery motion
subject to Rule 37(a)(1) and Local Rule 26.1(a).
on the information on file with the Court in this case,
counsel for the parties' have offices in different
counties, with Plaintiff's counsel in Los Angeles and
Defendant's counsel in La Mesa. Therefore, the parties
were excused from meeting and conferring in person, but they
were not excused from the requirement that they confer over
the telephone. However, the only interaction described by
Plaintiff was via email, and it did not involve any actual
engagement by Plaintiff's counsel with Defendants'
counsel regarding the objections raised by Defendants or
Plaintiff's disagreement with the same.
purpose of a meet and confer requirement is for the parties
to engage in a meaningful dialogue about their respective
positions on disputed issues to see whether they can resolve
them without court intervention, saving time and money for
the litigants and the court system. See California v.
Iipay Nation of Santa Ysabel, No. 14CV2724 AJB (NLS),
2015 WL 2449527, at *6 (S.D. Cal. May 22, 2015) (“A
purpose of a meet and confer requirement is to resolve issues
without the need for further action.”); Eusse v.
Vitela, Case No.: 3:13-cv-00916-BEN-NLS, 2015 WL
9008634, at *3 (S.D. Cal. Dec. 14, 2015) (“This
process, when successful, ‘obviates the need for
unnecessary motion practice, which, in turn, conserves both
the Court's and the parties' resources.'”)
(internal citation omitted). In order to “serve [this]
purpose, parties must ‘treat the informal negotiation
process as a substitute for, and not simply a formal
prerequisite to, judicial review of discovery
disputes.'” U-Haul Co. of Nevada v. Gregory J.
Kamer, Ltd., No. 2:12-cv-00231-KJD-CWH, 2013 WL 5278523,
at *2 (D. Nev. Sept. 17, 2013) (internal citation omitted).
The Court has carefully reviewed Plaintiff's ex parte
motion and her attorney's declaration, and finds no
justification proffered for the failure to meet and confer as
required by the Civil Local Rules and Chambers' Rules.
(See ECF Nos. 189, 189-2.) Though he may have made
some changes to the letter of request, Plaintiff's
counsel never responded to Defendants' counsel about
their concerns, or discussed with them the basis of their
respective positions to see whether resolution could be
reached. Based on everything before the Court, it appears
that Plaintiff's counsel disregarded the requirement
completely. There is no question under these circumstances
that Plaintiff failed to meet and confer prior to filing the
instant motion as required by Civil Local Rule 26.1(a). The
Court therefore DENIES the motion
without prejudice, and
ORDERS the parties to meet and confer prior
to refiling this motion. See, e.g., Rogers v.
Giurbino, 288 F.R.D. 469, 477 (S.D. Cal. 2012) (“A
court can deny a motion to compel solely because of a
party's failure to meet and confer prior to filing the
parties are warned that future failures to engage in the meet
and confer process as required by Local Rule 16.1(a) in good
faith will be considered a basis for the imposition of
sanctions.See, e.g., Blair v. CBE Grp.
Inc., Civil No. 13-CV-00134-MMA (WVG), 2015 WL 3397629,
at *8, *13 (S.D. Cal. May 26, 2015) (“[T]his
Court's Civil Local Rules also provide the Court with
authority to impose sanctions for ‘[f]ailure of counsel
or of any party to comply with these rules, with the Federal
Rules of Civil or Criminal Procedure, or with any order of
the court.' CivLR 83.1.a. The Local Rules allow for
‘any and all sanctions authorized by statute or rule or
within the inherent power of the court, including, without
limitation, dismissal of any actions, entry of default,
finding of contempt, imposition of monetary sanctions or
attorneys' fees and costs, and other lesser
sanctions.'” “While Defendant was within the
30 day deadline to bring the errata dispute to the
Court's attention, it failed to promptly meet and confer
before contacting ...