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denying Rule 27 petition where petitioner sought to "remedy the deficiencies in his pleadings"
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10 Civ. 9086 (SAS).
August 5, 2011
Peter R. Ginsberg, Esq., Christina N. Burgos, Esq., Ginsberg Burgos P.L.L.C., New York, NY, Attorneys for Plaintiff.
John D. Clopper, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of New York, New York, NY, Attorney for Defendant.
OPINION AND ORDER
I. INTRODUCTION
When the Court dismissed Enrico Frigerio's malicious prosecution claim in its July 21, 2011 Opinion and Order, it granted leave to replead if there is a "sound basis to allege that the agents pressured the U.S. Attorneys to continue the prosecution." Frigerio now seeks jurisdictional discovery — specifically, to depose the Federal Bureau of Investigation ("FBI") Agents and Assistant United States Attorney ("AUSA") who handled his prosecution — to determine whether there exists such a basis for an Amended Complaint. For the reasons discussed below, Frigerio's request is denied.
Frigerio v. United States, No. 10 Civ. 9086, 2011 WL 3163330, at *12 (S.D.N.Y. July 22, 2011).
II. APPLICABLE LAW
III. DISCUSSION
See In re Backer, No. 10 Civ. 0862, 2010 WL 2816789, at *5 n. 5 (S.D.N.Y. July 16, 2010) (denying discovery request when plaintiff's "application can only be read as an attempt to evade the federal limitations on pre-complaint discovery"); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 379 F. Supp. 2d 348, 370-71 (S.D.N.Y. 2005) ("[P]laintiffs' claims cannot survive these motions to dismiss based on the mere possibility of plaintiffs identifying the manufacturer of the offending product during discovery. To accept this argument would be akin to granting pre-action discovery to plaintiffs, which would impose onerous burdens on defendants and would encourage strike suits against participants in certain industries."); In re Petition of Allegretti, 229 F.R.D. 93, 96-97 (S.D.N.Y. 2005) ("Rule 27 may not be used as a vehicle for discovery prior to filing a complaint."); Petition of Gurnsey, 223 F. Supp. 359, 360 (D.D.C 1963) (holding that Rule 27 discovery "is not a method of discovery to determine whether a cause of action exists").
8A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane Richard L. Marcus, Federal Practice and Procedure § 2071 (3d ed.) (quoting Martin v. Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir. 1961).
Daventree Ltd. v. Republic of Azerbaijan, 349 F. Supp. 2d 736, 761 (S.D.N.Y. 2004), opinion clarified on denial of reconsideration, No. 02 Civ. 6356, 2005 WL 2585227 (S.D.N.Y. Oct. 13, 2005).
See Gualandi v. Adams, 385 F.3d 236, 244-45 (2d Cir. 2004) (stating that "courts generally require that plaintiffs be given an opportunity to conduct discovery on these jurisdictional facts," but only once they are seeking to defeat a Rule 12(b)(1) motion to dismiss an otherwise valid Complaint); Filus v. Lot Polish Airlines, 907 F.2d 1328 (2d Cir. 1990) (analyzing whether Foreign Sovereign Immunity Act provisions granting court personal and subject-matter jurisdiction over a foreign nation had been met); In re Terrorist Attacks on Sept. 11, 2001, 689 F. Supp. 2d 552, 567-68 (S.D.N.Y. 2010) (examining personal jurisdiction discovery after a Complaint had been filed); Daventree Ltd., 349 F. Supp. 2d at 761 (stating, after an apparently otherwise valid complaint had been filed, that "[i]f a plaintiff has identified a genuine issue of jurisdictional fact, jurisdictional discovery is appropriate even in the absence of a prima facie showing as to the existence of jurisdiction").
IV. CONCLUSION
For the foregoing reasons, plaintiffs request for jurisdictional discovery is denied.
SO ORDERED: