DONNA M. RYU, Magistrate Judge.
Plaintiff Patent Technology LLC
This lawsuit stems from Plaintiff's attempts to ship a trunk believed to contain $1.2 million in cash from Malaysia to the United States.
On April 5, 2013, Plaintiff and a person named Marry Juliet Smith
From April until August 2013, numerous individuals and entities ostensibly associated with the shipment of the trunk requested money from Plaintiff for the purposes of enabling the shipment, and Plaintiff sent money to various bank accounts in various amounts. Plaintiff became "significantly concerned that this was a scam operation," but despite this concern continued to send money toward the payment of fees and taxes associated with the shipment of the trunk. See, e.g., id. at ¶¶ 70, 76, 80, 82. The transactions described below represent only a sample of the payments that were requested and that Plaintiff made.
Eventually, Plaintiff refused to make any additional payments associated with the delivery of the trunk. Id. at ¶ 108. The trunk was never delivered to Plaintiff.
Plaintiff brings three causes of action against Defendants GT, PT, Woodman, and Olagoke: (1) breach of contract; (2) money had and received; and (3) fraud. Id. at ¶¶ 119-135. The total amount paid by Plaintiff for the delivery of the trunk is not clearly explained in the Amended Complaint. However, Plaintiff's breach of contract claim alleges that Defendants PT and Woodman became "indebted to Plaintiff in the sum of $470,000 USD plus allowable interest for breaching their written promises to deliver the consignment trunk," that GT owes $9,720 to Plaintiff, and Olagoke owes $38,000 to Plaintiff. Id. at ¶¶ 119-121.
The Amended Complaint also alleges the involvement of a person named "Mr. McCandles," whom Plaintiff believes to be the property lawyer for Smith's deceased father. Id. at ¶ 45.
Around May 8, 2013, Smith informed Plaintiff that she had rights to real property in Las Cruces, New Mexico and in Maumee, Ohio, but that the Ohio properties were under the control of McCandles. Id. Plaintiff asked Smith to request help from McCandles for the payment of some of the assorted fees and taxes that Plaintiff had been asked to provide to PT, but Smith stated that McCandles could not help. Id. at ¶ 100. Some time later, Plaintiff persuaded Smith to allow Plaintiff to contact McCandles to resolve the delivery of the trunk. On July 1, 2014, McCandles "contacted Michael Klicpera by email and confirmed that he sent $10,000 USD to Ms. Mary Juliet Smith but cannot help her any more without her presence in the United States." Id. at ¶ 113. The email does not indicate the identity of the sender: it is addressed from "pro-propertieschamber@outlook.com" to Klicpera, and signed by "PROPROPERTY LAWCHAMBER." See Compl. at Ex. 73.
Plaintiff has filed six motions that are pending before the court. Docket Nos. 17, 24, and 25 regard Plaintiff's request that certain portions of its other two motions be filed under seal and Docket No. 34 is Plaintiff's motion to extend the period for service of process; these motions will be addressed at the end of this order. The court first addresses Docket Nos. 18 and 20, in which Plaintiff moves the court for an order requiring Santander Bank, Wells Fargo, Bank of America, Microsoft, and the State of New Mexico to provide Plaintiff with information to assist it in identifying and locating Defendants and potential Defendants for service.
Generally, a party may not initiate discovery before the parties have met and conferred pursuant to Federal Rule of Civil Procedure 26(f). However, a court may authorize earlier discovery "for the convenience of parties and witnesses and in the interests of justice." Fed. R. Civ. P. 26(d). Courts have permitted "limited discovery . . . after [the] filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant." Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). See also Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (when true identity of defendant is not known before complaint is filed, a plaintiff "should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds"); Zoosk Inc. v. Doe 1, No. C 10-04545 LB, 2010 WL 5115670, at *2 (N.D. Cal. Dec. 9, 2010) (permitting plaintiff to serve early discovery on third-party internet service providers to discover identity of unknown Internet communicators).
The plaintiff must demonstrate good cause for earlier discovery. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). In evaluating whether a plaintiff establishes good cause to learn the identity of the defendants through early discovery, courts examine whether the plaintiff (1) identifies the unknown party with sufficient specificity that the court can determine that the party is a real person who can be sued in federal court, (2) recounts the steps taken to locate and identify the party, (3) demonstrates that the action can withstand a motion to dismiss, and (4) demonstrates a reasonable likelihood that the discovery will lead to identifying information that will permit service of process. Columbia, 185 F.R.D. at 578-780.
In Docket No. 20, Plaintiff moves the court for an order requiring non-party Microsoft Corporation to produce information regarding the Yahoo, Skype, and/or Outlook
First, Plaintiff has identified Smith and McCandles with sufficient specificity that the court can determine that they are real people who can be sued in federal court. Specifically, Plaintiff has demonstrated that Smith and McCandles communicated with Plaintiff through various means, including email and Skype, requesting payment of fees associated with the delivery of the trunk. Plaintiff identifies Smith as the owner of the Skype accounts ("juliet.smith85" and "marry.juliet33") through which Smith and Plaintiff communicated and McCandles as the owner of the Outlook account "proproperty-lawchamber@outlook.com" that sent messages to Klicpera's email address. Plaintiff has therefore accused Smith and McCandles of "specific acts of misconduct that could only have been perpetrated by actual people, as opposed to a mechanical process." G.N. Iheaku & Co. Ltd. v. Does 1-3, No. C 14-02069 LB, 2014 WL 2759075, at *2 (N.D. Cal. June 17, 2014). Accord Zoosk, 2010 WL 5115670, at *2 ("Zoosk identified the possible Doe defendants with sufficient specificity by identifying the eight IP addresses using the Twitter account `Squirrel Juice'").
Second, Plaintiff has recounted the steps it has taken to locate and identify Smith and McCandles. All of the communications between Plaintiff and Smith and McCandles are alleged to have occurred via email or Skype. Plaintiff states that it requested identifying information from Smith, including her driver's license and passport information but she refused to provide the information. Plaintiff also contacted McCandles for information about McCandles and Smith, but McCandles "was vague or protective and would not provide any specific information." Docket No. 20 at 4-5. Plaintiff states that it "never could completely verify the true identification" of Marry Juliet Smith nor "property attorney Mr. McCandles" and requires the requested information from Microsoft in order to identify them. Id. at 3.
Third, Plaintiff has also pleaded at least its fraud claim with sufficient particularity. "A cause of action for fraud [under California law] requires the plaintiff to prove (a) a knowingly false misrepresentation by the defendant, (b) made with the intent to deceive or to induce reliance by the plaintiff, (c) justifiable reliance by the plaintiff, and (d) resulting damages." Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192 (9th Cir. 2001) (quoting Wilkins v. Nat'l Broadcasting Co., Inc., 71 Cal.App.4th 1066, 1082 (1999)). The Amended Complaint sufficiently alleges that the named and unknown defendants (including potentially Smith and McCandles) made misrepresentations to Plaintiff, "had no intention to deliver the consignment trunk[,] and created a scheme to defraud the Plaintiff," causing Plaintiff to be injured through the loss of his money. Am. Compl. at ¶¶ 127-135.
Finally, information about the true names and contact information for the owners of the Skype and Outlook accounts ostensibly belonging to Smith and McCandles could lead to identifying information that will permit service of process.
For the above reasons, the court finds that good cause exists to permit some limited early discovery of that information, and
Also in Docket No. 20, Plaintiff moves the court for an order directing the New Mexico Department of Health to provide information about Smith's birth and family records.
While the first three factors in the Columbia standard are satisfied for the above-stated reasons, Plaintiff has not met the fourth factor by demonstrating that discovery from the State of New Mexico is likely to lead to identifying information about Defendants or the unknown defendants. Plaintiff's motion is disjointed and incomplete, and contains almost no information justifying the discovery sought. For example, Plaintiff believes that Smith was born in Las Cruces on February 10, 1981, but gives no explanation or basis for this belief. Docket No. 20-4 at 2. Nor has Plaintiff explained why a subpoena directed to the State of New Mexico is the proper means through which to discover information regarding Plaintiff's birth records. Without more, the court cannot conclude that there is good cause to permit early discovery. The court therefore
In Docket No. 18, Plaintiff moves the court for an order requiring the banks involved in transactions with Defendants Woodman and PT to provide information about accounts believed to be associated with those Defendants. Docket No. 18 at 1. Plaintiff also seeks information from Wells Fargo in order to identify and contact AIG. Docket No. 18 at 3.
With respect to the first Columbia factor, Plaintiff has demonstrated that Woodman and PT are real individuals or entities that can be sued in federal court. Plaintiff has alleged that Woodman and PT communicated with Plaintiff regarding the shipment of the trunk. They provided Plaintiff with information about requested payments, responded to his inquiries, and accepted the payments that Plaintiff sent. See, e.g., Compl. at Ex. 10 (email from Lawrence Woodman from PT updating Plaintiff on the shipment of the trunk and giving instructions for payment of customs fees). Plaintiff has also demonstrated that AIG is a real entity that can be sued in federal court, as Plaintiff has alleged that he completed a payment to a Wells Fargo account owned by AIG.
Second, Plaintiff has recalled the steps it has taken to locate Woodman and PT. Plaintiff hired a British process server who attempted to serve Woodman and PT at the British address provided by Woodman in his emails with Plaintiff, and attempted to contact those Defendants using the email addresses through which Plaintiff communicated with them and using the British phone numbers listed in Woodman's emails. Docket No. 18 at 4-5. The process server was unable to locate Woodman or PT using any of these means, and in fact found that the email addresses and phone numbers were no longer in use and the address led to residential flats that were not connected to Woodman or PT. Id. at 5.
However, Plaintiff has not sufficiently recounted the steps it took to locate and identify AIG. Plaintiff explains that it searched publically-available documents and discovered that "a company listed as AIG Imports and Exports was established in February 22, 2013 in Bronx, New York." Docket No. 18 at 3. Plaintiff attaches to its motion an unverified, unexplained document that appears to be a printout from the New York State Department of Corporations database showing an address at 3673 3rd Avenue in the Bronx for "AIG Imports & Exports Corporation." Docket No. 18 at Ex. A. Plaintiff states that it needs early discovery "to establish a connect [sic] between the bank deposit tendered and this potential defendant." Id. at 3. But Plaintiff has a corporate address for AIG Imports that is ostensibly registered with the State of New York. The second Columbia factor is "aimed at ensuring that plaintiffs make a good faith effort to comply with the requirements of service of process and specifically identifying defendants." Columbia, 185 F.R.D. at 579. Plaintiff has not met this factor because it has not attempted to serve AIG at this address, or explained why it is not possible to serve AIG at this address. The court therefore finds that Plaintiff has not demonstrated good cause to subpoena Wells Fargo for information about AIG's location in order to serve AIG, because Plaintiff may be able to serve AIG without this discovery.
As to the third Columbia factor, as discussed above, Plaintiff has sufficiently pleaded at least its fraud claim against PT, Woodman, and the unknown Defendants.
Analysis of the fourth Columbia factor—i.e., whether the discovery requested is likely to lead to identifying information that will permit service of process—requires the court to decipher the disorganized statements in Plaintiff's numerous filings. The motion for early discovery does not specify the banks from which Plaintiffs intends to seek early discovery. However, attached to the motion are three proposed orders directing Santander Bank, Wells Fargo, and Bank of America to provide documents to Plaintiff. See Docket Nos. 18-1 to 18-3. See also Docket Nos. 17-2 to 17-7 (redacted and unredacted copies of same proposed orders). The court therefore understands Plaintiff to be requesting early third-party discovery from only these three banks, for one account number per bank. Plaintiff's motion does not connect these three banks accounts to the allegations in the Amended Complaint, but the court has reviewed the Amended Complaint and finds that the allegations therein sufficiently draw a nexus between the three banks, the listed account numbers, and the named Defendants or unknown Defendants in this action:
As discussed above, because Plaintiff has unjustifiably failed to attempt service on AIG on its known address in the Bronx, Plaintiff has not demonstrated good cause for early discovery from Wells Fargo for information about AIG.
However, Plaintiff's requests are overbroad: Plaintiff seeks (1) the personal and/or corporate names and the addresses of the owners of the account numbers; (2) names and addresses for any accounts "associated with Defendant Lawrence Woodman, PT Express and Security Company, and/or AIG"; (3) copies of all statements sent to and received from the owners of the identified account number for the period between April 23, 2013 and July 23, 2013; (4) any emails or mail sent to or received from the owners of the identified account number; and (5) any information regarding the receipt and distribution of $28,455 by the Santander bank account on May 30, 2013 and $11,500 by the Bank of America account on April 22, 2013. Only the first and fifth category of information is properly requested. Compare G.N. Iheaku & Co. Ltd. v. Does 1-3, No. C 14-02069 LB, 2014 WL 2759075, at *3 (N.D. Cal. June 17, 2014) (in case where plaintiff wired $270,000 to bank account of suspected scammer whose true name was unknown, granting motion for early discovery in form of subpoena on bank, but noting that plaintiff's "requests for production of documents that are more suited for the merits discovery stage and exceeds the scope sufficed for learning the identities of the Doe defendants" and therefore limiting discovery to contact information and information about specifically identified money transfers on certain dates); Specialized Bicycle Components, Inc. v. Barton, No. C10-05725 HRL, 2011 WL 1599653, at *1 (N.D. Cal. Apr. 28, 2011) (permitting plaintiff bicycle manufacturer to subpoena website for early discovery about contact and sales information for seller of counterfeit bicycle components, but not permitting early discovery of bank account information). The other information Plaintiff seeks is not directed toward discovering the identities and contact information for the Defendants, and is more properly sought in the course of ordinary rather than early discovery.
The court therefore
Associated with Plaintiff's requests for early third-party discovery are several motions to seal. [Docket Nos. 17, 20, 24, 25.] Civil Local Rule 79-5(b) states that "no document may be filed under seal (i.e., closed to inspection by the public) except pursuant to a court order that authorizes the sealing of the particular document, or portions thereof. A sealing order may issue only upon a request that establishes that the document, or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under the law (hereinafter referred to as `sealable')." "The request must be narrowly tailored to seek sealing only of sealable material, and must conform with Civil L.R. 79-5(d)." Id.
In Docket No. 17, Plaintiff seeks to seal the Sovereign Bank account number, the Bank of America account number, and the last four digits of the Wells Fargo account number as they appear in the "proposed orders" Plaintiff attached as exhibits to Docket No. 18. However, Plaintiff makes no contention that this material is confidential, privileged, protectable as a trade secret, or otherwise sealable. Instead, Plaintiff simply notes that the exhibits will "provide identification and address information for conduct [sic] process serving." Docket No. 17-1 at 2. Because Plaintiff has failed to meet its burden of showing that the material sought to be sealed is sealable, the court
Docket No. 20, which is Plaintiff's motion for third-party early discovery from Microsoft and the State of New Mexico, also appears to include a request to seal.
Docket Nos. 24 and 25 are styled as "Protection and Document Sealing Orders" purporting to relate to Plaintiff's request that the court permit early discovery from third parties. But these "motions" are simply the court's model protective order, followed by Plaintiff's declaration that it "promises" that it will not use material designated as "Confidential" under the protective order for inappropriate purposes. See, e.g. Docket No. 24-1 at ¶ 3 ("I promise that I will use any and all `Confidential' or `Confidential — For Counsel Only' information, as defined in the Protective and Document Sealing Order, given to me only in a manner authorized by the Protective and Document Sealing Order, and only to assist counsel in the litigation of this matter."). The model protective order is simply an exemplar for parties litigating in this district, not an order with any governing authority. Plaintiff's declaration is meaningless because no documents have been designated as "Confidential" or "Confidential — For Counsel Only"—because there is no stipulated protective order under which such designations may be made. Furthermore, Docket Nos. 24 and 25 refer back to Docket Nos. 17, 18, and 20, and seek to seal the same information that Plaintiff's redundant earlier-filed motions to seal covered, i.e., the account numbers for the Santander, Wells Fargo, and Bank of America accounts and the alleged birth date of Marry Juliet Smith. As before, Plaintiff makes no contention that this material is sealable. Docket Nos. 24 and 25 are therefore
Plaintiff moves to extend time for serving Defendants PT and Woodman. [Docket No. 34.] Federal Rule of Civil Procedure 4(m) provides: "If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time." However, "if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m). See also Fed. R. Civ. P. 6(b)(1) ("When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect.").
Plaintiff's motion recounts Plaintiff's many efforts to serve PT and Woodman using the British phone numbers and addresses provided on tthe emails those Defendants sent to Plaintiff between April and July of 2013. Plaintiff hired a British process server to investigate the phone numbers and addresses; the process server reported to Plaintiff that those addresses and numbers did not exist or did not lead to PT or Woodman. See Docket No. 34 at 2-6. Given these attempts to contact PT and Woodman, and given that Plainttiff's motionns for early discovery are directed to uncovering the information about the identities of and contact information for these Defendants, the court finds that there is good cause for Plaintiff's failure to serve Defendants PT and Woodman within 120 days of the filing of the complaint.
Accordingly, the court
To summarize, Docket No. 18 is
Docket No. 20 is
Docket Nos. 20, 24, and 25 are
