Freeman v. Santander Consumer USA, Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA [3] YAUSMENDA FREEMAN, ) 4 ) Plaintiff, ) Case No.: 2:21-cv-01041-GMN-BNW 5 vs. ) ) ORDER [6] SANTANDER CONSUMER USA, INC., ) 7 ) Defendant. ) 8 ) [9] 10 Pending before the Court is Plaintiff Yausmenda Freeman’s (“Petitioner’s”) Objection, 11 (ECF No. 14), to the Magistrate Judge’s Report and Recommendation, (ECF No. 13), 12 recommending that the Court deny Petitioner’s Motion for Leave to File Amended Verified 13 Petition, (ECF No. 12), and deny as moot Defendant Santander Consumer USA, Inc.’s 14 (“Respondent’s”) Motion to Strike, (ECF No. 2). 15 Further pending before the Court is Respondent’s Motion to Strike, (ECF No. 2). 16 Petitioner filed a Response, (ECF No. 6), and Respondent filed a Reply, (ECF No. 9). 17 Also pending before the Court is Petitioner’s Motion for Leave to File Amended 18 Verified Petition, (ECF No. 12). 19 Further pending before the Court is Petitioner’s Motion to Vacate, (ECF No. 16).1 20 Respondent filed a Response, (ECF No. 17), and Petitioner filed a Reply, (ECF No. 18). 21 For the reasons discussed below, the Court DENIES Petitioner’s Objection and Motion 22 for Leave to File Amended Verified Petition, ADOPTS in part and REJECTS in part the [24] 25 1 Petitioner’s Motion to Vacate is effectively moot because the Court denies Plaintiff’s Objection and adopts the Magistrate Judge’s Report and Recommendation regarding denying Petitioner’s Motion for Leave to File Amended Verified Petition. Accordingly, the Court denies as moot Plaintiff’s Motion to Vacate. 1 Report and Recommendation, DENIES as moot Petitioner’s Motion to Vacate, and GRANTS 2 Respondent’s Motion to Strike. 3 I. BACKGROUND 4 This action arises from a former miscellaneous case, bearing the case number 2:21-ms5 00029. On May 10, 2021, Petitioner filed a miscellaneous document, consisting of an Affidavit 6 in Support of Notice and Demand. (See generally Aff., ECF No. 1). In the Affidavit, Petitioner 7 demands Respondent pay her $4,242,157.83 for various causes of action. (See id. at 10–11). 8 On June 2, 2021, the Court converted the case to the regular civil docket when Respondent 9 contested it by moving to strike Petitioner’s Affidavit as fugitive and for failing to follow 10 several Federal Rules of Civil Procedure. (See Mot. Strike 1:19–2:2, ECF No. 2); (see also 11 Min. Order, ECF No. 4). Petitioner responded but does not address the substantive issues 12 raised in the Motion to Strike. (See generally Resp. Mot. Strike, ECF No. 6). Later, Petitioner 13 filed a Petition to Perpetuate the Testimony (“Petition”) of Respondent pursuant to Fed. R. Civ. 14 P. 27 . (See Pet. Perpetuate Testimony (“Pet.”) 2:9–11, ECF No. 8). Petitioner also filed a 15 Motion for Leave to File Amended Verified Petition. (See generally Mot. Leave File Am. 16 Verified Pet. (“Mot. Leave”), ECF No. 12). In the Motion for Leave to File, Petitioner 17 acknowledges certain defects in her prior filings and requests leave to cure those deficiencies 18 by amending the Petition. (Id. at 2–3). The Magistrate Judge, through a Report and 19 Recommendation (“R&R”), recommends the Court to deny the Motion for Leave to File and to 20 deny as moot Respondent’s Motion to Strike. (R&R 3:27–4:2, ECF No. 13). 21 II. LEGAL STANDARD 22 When reviewing the order of a Magistrate Judge, the order should only be set aside if the 23 order is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 U.S.C. § 24 636(b)(1)(A); Laxalt v. McClatchy, 602 F. Supp. 214, 216 (D. Nev. 1985). A Magistrate 25 Judge’s order is “clearly erroneous” if the court has “a definite and firm conviction that a 1 mistake has been committed.” See United States v. United States Gypsum Co., 333 U.S. 364 , 2 395, 68 S. Ct. 525 , 92 L. Ed. 746 (1948); Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 (9th 3 Cir. 1992). “An order is contrary to law when it fails to apply or misapplies relevant statutes, 4 case law or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., No. 2:145 cv-00224-RCJ, 2014 U.S. Dist. LEXIS 129489 , 2014 WL 4635882 , at *1 (D. Nev. Sept. 16, 6 2014). When reviewing the order, however, the Magistrate Judge “is afforded broad discretion, 7 which will be overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 , 8 446 (C.D. Cal. 2007). The District Judge “may not simply substitute its judgment” for that of 9 the Magistrate Judge. Grimes v. City and County of San Francisco, 951 F.2d 236, 241 (9th Cir. 10 1991) (citing United States v. BNS, Inc., 858 F.2d 456, 464 (9th Cir. 1988)). 11 III. DISCUSSION 12 The Magistrate Judge recommends that the Court should deny as moot Respondent’s 13 Motion to Strike. (See R&R 4:1–2). The R&R also recommends that the Court should deny 14 Petitioner’s Motion for Leave to File because the Motion does not comport with the procedural 15 requirements of Fed. R. Civ. P. 27. (See id. 1:24–2:19, 3:1–25). Petitioner objects, arguing the 16 R&R erroneously analyzed her Motion for Leave to File under Rule 27(a), but instead should 17 have analyzed it under Rule 27(c). (Obj. 2:16–26, ECF No. 14). The Court turns first to the 18 Motion to Strike and then addresses the Motion for Leave to File. 19 a. Motion to Strike 20 The R&R recommends that the Court should deny as moot Respondent’s Motion to 21 Strike. The Court may strike “from a pleading an insufficient defense or any redundant, 22 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function of a Rule 23 12(f) motion to strike is to avoid the expenditure of time and money that must arise from 24 litigating spurious issues by dispensing with those issues prior to trial. . . .” Sidney–Vinstein v. 25 A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The decision to grant or deny a motion to 1 strike is vested in the trial judge’s sound discretion. Cal. Dept. of Toxic Substances Control v. 2 Alco Pacific, Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). However, federal courts 3 disfavor motions under Rule 12(f) and generally view them as a drastic remedy. See, e.g., 4 Freeman v. ABC Legal Servs., Inc., 877 F. Supp. 2d 919, 923 (N.D. Cal. 2012); Mag 5 Instrument, Inc. v. JS Products Inc., 595 F. Supp. 2d 1102, 1006 (C.D. Cal. 2008); Sorenson v. 6 Countrywide Home Loans, Inc., 2010 WL 308794 , at *2 (E.D. Cal. Jan. 12, 2010). Further, 7 “[t]he court is to strike ‘fugitive documents,’ which are those papers ‘not allowed’ by the Local 8 or Federal Rules.” Jones v. Skolnik, No. 3:10-cv-00162-LRH, 2015 WL 685228 , at *2 (D. Nev. 9 Feb. 18, 2015) (citing Reiger v. Nevens, No. 3:12-cv-00218-MMD-VPC, 2014 WL 537613 , at 10 *3 (D. Nev. Feb. 14, 2014)) 11 Here, the Magistrate Judge clearly erred by not explaining why it recommends denying 12 as moot the Motion to Strike. In its Motion, Respondents argue the Court should strike 13 Petitioner’s Affidavit because it does not comply with several rules of civil procedure. (Mot. 14 Strike 1:25–2:26). Petitioner responds that her Affidavit complies with Rule 27(c). (Resp. to 15 Mot. Strike 2:27–3:1). However, Petitioner’s Affidavit runs afoul of Fed. Rs. Civ. P. 3 and 27. 16 In her Affidavit, Petitioner makes various allegations and seeks monetary damages against 17 Respondents, but the proper way to commence a civil action is by “filing a complaint with the 18 court.” Fed. R. Civ. P. 3; (see also Aff. 2:2–9:21). Even if the Court construes Petitioner’s 19 Affidavit as a petition to perpetuate testimony, as discussed in detail below, it fails to comport 20 with Fed. R. Civ. P. 27(a). (See generally Aff.). Since Petitioner’s Affidavit violates several 21 rules of civil procedure, the Court will strike the filing from the docket. Accordingly, the Court 22 rejects the Magistrate Judge’s recommendation with respect to denying as moot Respondent’s 23 Motion to Strike and grants the Motion to Strike. The Court turns now to the Petition. [25] 1 b. Petition to Perpetuate Testimony 2 Petitioner argues the R&R incorrectly applied the procedural requirements of Rule 27(a) 3 to her Petition because she filed it under Rule 27(c). (See Obj. 6:1–27). Rule 27(c) “was not 4 intended to expand the applicability of the other provisions of the Rule.” Nev. v. O’Leary, 63 5 F.3d 932 , 936–37 (9th Cir. 1995). The required showing is the same regardless of whether a 6 petitioner relies on Rule 27(a) or Rule 27(c). See Cole v. Bank of Am., LLC, 2011 WL 7 13240402, at *2 n.1 (D. Nev. Sept. 7, 2011); see also 6 MOORE’S FEDERAL PRACTICE, § 27.51 8 (3d ed.) (whether a request is brought under Rule 27(a) or Rule 27(c), the required showing is 9 “almost identical”). These requirements have been found to apply in the context of Rule 27(c). 10 See, e.g., Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 440 (7th Cir. 1994) (discovery 11 may be obtained under Rule 27(c) for documents “if they are competent records, material to the 12 matter in controversy, that cannot be obtained in ordinary discovery because the plaintiff is not 13 yet in a position to initiate such an action, but that might be lost if the plaintiff cannot now 14 obtain them”). 15 To perpetuate testimony by taking a deposition before an action is filed, a petitioner 16 must show that 17 (A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought; 18 (B) the subject matter of the expected action and the petitioner's interest; (C) the facts that the petitioner wants to establish by the proposed [19] testimony and the reasons to perpetuate it; 20 (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and 21 (E) the name, address, and expected substance of the testimony of each deponent. [22] 23 Fed. R. Civ. P. 27(a)(1)(A); O’Leary, 63 F.3d at 935. The inability to presently bring an 24 action or cause it to be brough cannot be premised on a lack of evidence that the deposition is 25 meant to cure; the deposition cannot be used to gather facts to bring suit. See, e.g., Cole, 2011 WL 13240402 , at *2. Moreover, a petitioner must plead with particularity the risk that the 1 testimony sought will be lost if not obtained immediately. See Calderon v. U.S. Dist. Ct. for N. 2 Dist. of Cal., 144 F.3d 618, 621 (9th Cir. 1998); Cole, 2011 WL 13240402 , at *2. 3 In the present case, the Magistrate Judge did not clearly err by recommending the Court 4 should deny the Motion for Leave to File because it does not comply with Rule 27(a). 5 Although Petitioner brought the Petition under Rule 27(c), it must comport with the procedural 6 requirements of Rule 27(a), which it does not do. See O’Leary, 63 F.3d at 936–37; Cole, 2011 7 WL 13240402 , at *2 n.1. Petitioner explains she cannot presently bring an action because she 8 is in the middle of an audit with the Internal Revenue Service. (Obj. 11:25–12:8). However, as 9 the Magistrate Judge correctly reasons, this is not a valid reason not to commence a civil action 10 against Respondent through a complaint. (R&R 3:1–9). Petitioner can properly commence her 11 action and obtain the testimony she seeks through the ordinary course of discovery. See Green 12 v. Robinson, 53 F.3d 338 (9th Cir. 1995) (ruling that it is inappropriate to invoke Rule 27 to 13 perpetuate testimony if a petitioner is “presently able to bring [an] action and will be able to 14 conduct discovery subsequently”). 15 Further, Petitioner contends that without perpetuating testimony, evidence to support a 16 future claim will be lost because Respondents are currently implementing new recordkeeping 17 procedures. (Obj. 7:10–20). However, Petitioner does not plead with particularity how 18 implementing new recordkeeping procedures leads to the “inevitable possibility that the 19 previous errors in [Respondent’s] reporting and files will be lost, not acknowledged, or simply 20 claimed to have been fixed to fall into compliance.” (Pet. 4:1–5:2). Petitioner claims 21 Respondents may lose her files by alleging that Respondent has changed the language of how 22 they report “70 charge offs on my credit profile.” (Id. 4:20–22). However, changing language 23 of “charge offs” did not lead to any of Petitioner’s records being lost; these changes do not 24 indicate Respondents will lose Petitioner’s records. (See id. 4:1–5:2). As such, the Petition 25 does not satisfy the procedural requirements of Rule 27(a). Thus, the Court denies Petitioner’s 1 Objection and adopts the R&R as to its recommendation that the Court deny Petitioner’s 2 Motion for Leave to File Amended Verified Petition. 3 In sum, Petitioner improperly commenced this action; she can properly commence an 4 action and obtain the sought testimony through the normal discovery process. Accordingly, the 5 Clerk is instructed to close the case. If Petitioner would like to commence a proper action, the 6 Court instructs her to file a new action via complaint and not file anything further in this case. 7 IV. CONCLUSION 8 IT IS HEREBY ORDERED that Plaintiff’s Objection, (ECF No. 14), is DENIED. 9 IT IS FURTHER ORDERED that the Report and Recommendation, (ECF No. 13), is 10 ADOPTED in part and REJECTED in part. 11 IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Amended 12 Verified Petition, (ECF No. 12), is DENIED. 13 IT IS FURTHER ORDERED that Plaintiff’s Motion to Vacate, (ECF No. 16), is 14 DENIED as moot. 15 IT IS FURTHER ORDERED that Defendant’s Motion to Strike, (ECF No. 2), is 16 GRANTED. 17 IT IS FURTHER ORDERED that this case is DISMISSED with prejudice. 18 IT IS FURTHER ORDERED that the Clerk is instructed to close the case. 19 DATED this __2_1__ day of March, 2022. [20] 21 ___________________________________ Gloria M. Navarro, District Judge [22] UNITED STATES DISTRICT COURT