Boylan v. Morgan

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 NICHOLAS A. BOYLAN, Case No.: 3:20cv1967-WQH-AHG 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR PRE-ANSWER 13 v. EARLY NEUTRAL EVALUATION 14 MARK A. MORGAN, in his capacity as CONFERENCE AND EXPEDITED Acting Commissioner of the United States DISCOVERY [15] Customs and Border Protection; UNITED 16 STATES CUSTOMS AND BORDER [ECF No. 8] PATROL; UNITED STATES [17] DEPARTMENT OF HOMELAND 18 SECURITY; UNITED STATES DEPARTMENT OF THE TREASURY; [19] and DOES 1–100, [20] Defendant. [22] Before the Court is Plaintiff Nicholas Boylan’s (“Plaintiff”) motion for pre-answer [23] Early Neutral Evaluation Conference (“ENE”) and expedited discovery. ECF No. 8. For [24] the reasons set forth below, the Court DENIES the motion. [25] I. BACKGROUND [26] On October 6, 2020, Plaintiff filed suit in this district, alleging violations of his [27] Fourth and Fifth Amendment rights, violations of the Administrative Procedures Act, and [28] 1 seeking records under the Freedom of Information Act, relating to his denied entry into the 2 Global Entry Trusted Traveler Program. ECF No. 1. Currently pending before the Court 3 are Defendants’ motions to dismiss. ECF Nos. 5, 12. As such, no Defendant has answered 4 Plaintiff’s complaint. 5 On December 8, 2020, Plaintiff filed the instant motion. ECF No. 8. On 6 December 18, 2020, pursuant to a slight extension granted by the Court (ECF No. 11), 7 Defendants filed their opposition. ECF No. 13. This Order follows. 8 II. DISCUSSION 9 In the instant motion, Plaintiff seeks an order from the Court requiring a pre-answer 10 ENE, as well as expedited discovery. ECF No. 8. The Court will address these in turn. 11 A. Plaintiff’s Request for a Pre-Answer ENE 12 In this district, the Court generally conducts ENEs within forty-five days of the filing 13 of an answer. See CivLR 16.1(c)(1) (“Within forty-five (45) days of the filing of an answer, 14 counsel and the parties must appear before the assigned judicial officer supervising 15 discovery for an early neutral evaluation conference”); Seoane v. Lexisnexis Risk Data 16 Mgmt., No. 11cv0908 L-WMc, 2011 WL 2132844 , at *1 (S.D. Cal. May 26, 2011); Yang 17 v. DTS Financial Group, 570 F. Supp. 2d 1257, 1261 (S.D. Cal. 2008). However, “[a]t any 18 time after the filing of a complaint and before an answer has been filed, counsel for any 19 party may make a request in writing to the judicial officer assigned to supervise discovery 20 in the case to hold an early neutral evaluation conference[.]” CivLR 16.1(c)(1). Upon such 21 a request, the Court “will examine the circumstances of the case and the reasons asserted 22 for the request[,]” and determine whether an expedited ENE would reduce the “expense 23 and delay” of litigation. Id.; Seoane, 2011 WL 2132844 , at *1. 24 Plaintiff contends that a “pre-answer ENE conference is necessary and/or 25 appropriate because, with the assistance of the Court, a quick and easy settlement in this 26 case should be reasonably probable.” ECF No. 8 at 1. However, Defendant responds (and 27 Plaintiff concedes) that Plaintiff already presented a settlement proposal, which was 28 summarily rejected by Defendants. ECF No. 13 (“The parties have already explored early 1 settlement. Defendants considered Plaintiff’s settlement demand. Defendants determined 2 that settlement was not appropriate given its legal defenses. . . . Defendants do not believe 3 further settlement discussion will be useful while the motions to dismiss are pending.”); 4 ECF No. 8 at 2 (“Plaintiff recently made a very simpl[e], modest and easy settlement 5 proposal to the defense. The response was a one-sentence rejection, without any 6 explanation or discussion whatsoever.”). 7 Plaintiff has failed to specify why conducting an ENE before Defendant files an 8 answer will reduce the expense and delay of litigation. In fact, conducting an ENE before 9 Defendant files an answer could delay resolution of the case and increase the expense of 10 litigation, especially since there are two motions pending. See e.g., Azco Biotech v. Qiagen, 11 N.V., No. 12cv2599-BEN-DHB, 2013 WL 3283841 , at *4 (S.D. Cal. June 26, 2013) 12 (denying plaintiff’s request for an expedited ENE because, though one defendant answered, 13 the remaining four defendants filed motions to dismiss, explaining that “an Early Neutral 14 Evaluation Conference is not appropriate at this time prior to resolution of Defendants’ 15 motion to dismiss. Indeed, it is unlikely that fruitful settlement discussions will occur given 16 that four of the five Defendants anticipate being dismissed from this case”); Seoane, 2011 17 WL 2132844 , at *1–*2 (denying the plaintiff’s motion for an expedited ENE because the 18 defendant had not filed an answer and because a motion to dismiss was pending, noting 19 that “[f]urthermore, ordering the Defendants to participate in an expedited ENE despite 20 their unwillingness to do so would likely increase costs and delay”). As such, Plaintiff’s 21 request for a pre-answer ENE is DENIED. 22 B. Plaintiff’s Request for Discovery 23 Plaintiff requests a pre-answer ENE “to begin the discovery process swiftly.” ECF 24 No. 8 at 2. Though the Court has denied Plaintiff’s request for an ENE, it will consider 25 Plaintiff’s request for early discovery. 26 Since Defendants have not answered, no ENE has been scheduled and no Rule 26(f) 27 conference has occurred. See CivLR 16.1(c) (ENEs occur within 45-days of the 28 defendant’s answer and the case management conference, preceded by the Rule 26(f) 1 conference, is held within 30-days of the ENE). “A party is generally not permitted to 2 obtain discovery without a court order before the parties have conferred pursuant to Federal 3 Rule of Civil Procedure 26(f).” Satmodo v. Whenever Commc’ns, No. 17cv192-AJB-NLS, [4] 2017 WL 4557214 , at *3 (S.D. Cal. Oct. 12, 2017) (citing FED. R. CIV. P. 26(d)(1)). 5 However, the Court has discretion to permit early or expedited discovery upon a showing 6 of good cause. See Fluke Elecs. Corp. v. CorDEX Instruments, No. C12-2082-JLR, 2013 7 WL 566949 , at *10 (W.D. Wash. Feb. 13, 2013) (“Courts within the Ninth Circuit 8 generally use a ‘good cause’ standard to determine whether to permit discovery prior to a 9 Rule 26(f) conference”); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273 , 275– 10 76 (N.D. Cal. 2002) (applying “the conventional standard of good cause in evaluating 11 Plaintiff's request for expedited discovery”); see cf. In re Morning Song Bird Food Litig., 12 No. 12cv1592-JAH-RBB, 2013 WL 12143947 , at *2 (S.D. Cal. Jan. 25, 2013) (“The 13 burden is on Plaintiffs to show a need for pre-Rule 26(f) discovery.”), aff’d & objections 14 overruled by, 2013 WL 12143948 (S.D. Cal. Apr. 2, 2013). 15 Good cause exists “where the need for expedited discovery, in consideration of the 16 administration of justice, outweighs the prejudice to the responding party.” Semitool, 208 17 F.R.D. at 276. “The court must perform this evaluation in light of ‘the entirety of the record 18 ... and the reasonableness of the request in light of all the surrounding circumstances.’” 19 Facebook v. Various, Inc., No. C-11-01805-SBA DMR, 2011 WL 2437433 , at *2 (N.D. 20 Cal. June 17, 2011) (quoting Semitool, 208 F.R.D. at 275 ). In determining whether good 21 cause justifies expedited discovery, courts commonly consider factors including: 22 “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery requests; 23 (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants to 24 comply with the requests; and (5) how far in advance of the typical discovery process the 25 request was made.” Apple Inc. v. Samsung Elecs., 768 F. Supp. 2d 1040, 1044 (N.D. Cal. 26 2011) (citing American LegalNet v. Davis, 673 F.Supp.2d 1063, 1067 (C.D. Cal. 2009)); 27 see, e.g., Zappia v. World Sav. Bank FSB, No. 14cv1428-WQH-DHB, 2015 WL 1608921 , 28 at *2–*3 (S.D. Cal. Apr. 10, 2015) (using the American LegalNet factors to determine 1 whether good cause justified permitting discovery before the Rule 26(f) conference); 2 Richards Indus. Park v. FDIC, No. 11cv2059-LAB-DHB, 2014 WL 12899121 , at *4–*8 3 (S.D. Cal. Oct. 6, 2014) (same). 4 The Court finds that Plaintiff has not demonstrated the administration of justice is 5 outweighed by the prejudice to Defendants sufficient to permit expedited discovery.1 6 Particularly relevant to the Court’s finding is (1) the timing of the request, (2) that no 7 preliminary injunction is pending, (3) the purpose for requesting expedited discovery, and 8 (4) volume of the discovery requested. 9 Plaintiff’s request for discovery was made, at a minimum, four months2 in advance 10 of the typical discovery process. See Human Rights Watch v. Drug Enf’t Admin., No. 11 15cv2573-PSG-JPRx, 2015 WL 13648069 , at *2 (C.D. Cal. July 10, 2015) (noting that 12 “[t]his case is in its early stages, having just been filed three months ago,” which weighed [14] 1 The Court notes that Plaintiff does not specifically request expedited discovery, and 15 instead requests a pre-answer ENE as a catalyst to begin discovery. See ECF No. 8 (“a preanswer ENE is imperative to begin the discovery process promptly”). To the extent this is [16] meant to circumvent the good cause standard, the Court finds that the outcome would be 17 the same. See Contentguard Holdings v. ZTE Corp., No. 12cv1226-CAB-MDD, 2013 U.S. Dist. LEXIS 197605 , at *4 (S.D. Cal. Jan. 16, 2013) (denying expedited discovery because [18] a motion to dismiss was pending, and explaining that “in their motion, Plaintiff is not 19 seeking expedited discovery pursuant to Rule 26(d). Instead, in an interesting deviation, Plaintiff seeks to compel Defendants to participate in a Rule 26(f) conference. … In this [20] way, Plaintiff would be able to obtain certain discovery in advance of the pleadings being 21 settled without showing ‘good cause’ under Rule 26(d). … This Court finds that there is no good cause to have the Rule 26(f) conference in this case precede the filing of the [22] answer. Nor is there good cause to advance the ENE. Until the motion to dismiss is 23 resolved, the actual claims and defenses at issue will be unclear. It would be inefficient and cause unnecessary expense for the parties to engage in discovery on claims that may not [24] survive and defenses and counterclaims that may not be asserted.”). [25] 2 See generally ECF No. 7 (setting briefing schedule on motions to dismiss, where the [26] motions will not be fully briefed until February 1, 2021); FED. R. CIV. P. 12(a)(4)(A) 27 (stating that if the court denies the motion to dismiss, the defendant must answer the complaint within 14 days); CivLR 16.1(c) (setting ENEs within 45 days after the defendant [28] 1 against granting expedited discovery). The Court notes that one motion to dismiss was filed 2 before Plaintiff’s instant motion (ECF No. 5), and another motion to dismiss was filed 3 thereafter (ECF No. 12). See In re Morning Song Bird Food Litig., 2013 WL 12143947 , at 4 *3 (denying plaintiff’s request for discovery before the Rule 26(f) conference, and 5 explaining that “the operative complaint is challenged by motion practice, delaying 6 discovery until the claims and defenses in the case are better defined reduces expenses, 7 minimizes the burden of unnecessary discovery, and conserves judicial resources”); see 8 also Celebrity Chefs Tour v. Macy’s, No. 13cv2714-JLS-KSC, 2014 WL 12165415 , at *2 9 (S.D. Cal. Aug. 29, 2014) (collecting cases that illustrate that “[t]his ruling is in keeping 10 with numerous other courts, which have denied parties’ requests to expedite discovery on 11 the same grounds when potentially dispositive motions are pending”). 12 Also, a preliminary injunction is not pending in this case and Plaintiff has not 13 expressed an intention to seek one. Compare Hall v. Mims, No. 11cv2047-LJO-BAM, 2012 14 WL 1498893 , at *4 (E.D. Cal. Apr. 27, 2012) (“Unlike other instances where early 15 discovery was granted, a preliminary injunction currently is not at issue, and Plaintiffs have 16 not expressed an intention to seek one”) with Semitool, 208 F.R.D. at 276–78 (permitting 17 limited expedited discovery on claims of infringement and unfair competition because the 18 Plaintiff required such information to seek a preliminary injunction). 19 Here, Plaintiff seeks to “begin the discovery process promptly, as the discovery in 20 this case is going to be extensive … Defendants will likely obstruct and object to all 21 discovery. Months of delay should be avoided.” ECF No. 8 at 2. The Court finds this 22 argument unpersuasive. See Hall, 2012 WL 1498893 , at *3 (“While Plaintiffs’ discovery 23 requests may be relevant to prove their claims, Plaintiffs have not demonstrated the 24 requested information is needed on an expedited basis. … Indeed, Plaintiffs acknowledged 25 the underlying motivation to request early discovery was Plaintiffs’ desire to ‘move the 26 case forward,’ and to combat Defendants’ alleged ‘stall-tactics.’ The desire to move a case 27 forward in a timely manner, however, does not constitute a ‘need for expedited 28 discovery.’”). 1 Plaintiff also seeks discovery “to assist in responding to the Government’s 2 || forthcoming Rule 12 Motions[,]” because he “will soon be amending his complaint.” Jd.; 3 also ECF No. 10 (“discovery will also be needed in order to provide even further 4 amendments to the Complaint, in order to defeat the series of motions to dismiss’). Plaintiff 5 ||has provided the Court examples of 26 requests for production of documents served on 6 Defendants, which Plaintiff states are “specific examples, not exclusive, of the types of 7 ||documents and data discovery that will be needed, and will take months of years to fully 8 ||achieve.” ECF No. 8 at 2, 6-10. The Court finds that such voluminous discovery is not 9 || “narrowly tailored” so as to discover only the “minimum amount of information needed” 10 || to achieve its stated purpose. Human Rights Watch, 2015 WL 13648069 , at *3; see also 11 || Satmodo, 2017 WL 4557214 , at *4—*5 (denying expedited discovery when plaintiff sought 12 || voluminous discovery that would be costly and time consuming). 13 These considerations do not show the requisite good cause to permit expedited 14 || discovery. As such, Plaintiff's request for discovery at this stage is DENIED. 15 Hr. CONCLUSION 16 For the reasons set forth above, the Court DENIES Plaintiff's motion requesting a 17 || pre-answer ENE and expedited discovery. ECF No. 8. [18] 19 IT IS SO ORDERED. 20 Dated: December 30, 2020 _ Siow. Xion Honorable Allison H. Goddard 22 United States Magistrate Judge