Opinion
CIV. NO. 04-256 MV/DJS
March 9, 2004
ORDER
THIS MATTER comes before the Court upon Plaintiffs Ex-Parte Motion for Expedited Discovery and to Permit Entry and Inspection of Land and Tangible Things filed March 8, 2004 (Docket No. 4). Plaintiff seeks an order giving its agents permission to enter Defendant's property and structures located at 802 11th Street, Eunice, New Mexico. to inspect, photograph, test, and sample any metal building components thereon. As grounds, Plaintiff states that it needs to determine the quantity of its property in Defendant's possession and to insure that Defendant does not conceal or dispose of property which rightfully belongs to Plaintiff. The underlying action is a suit alleging conversion and unjust enrichment and seeking an accounting which is filed in federal court on the basis of diversity.
Fed.R.Civ.P. 26(d) provides in part as follows:
Except when authorized under these rules or by local rule, order, or agreement of the parties, a party may not seek discovery from any source before the parties have met and conferred as required by subdivision (f).
While generally precluding disco. very until the Rule 26(f) meeting,see Epps v. Lauerdale County, 139 F. Supp.2d 859, 868 (W.D.Tenn. 2000), the rule nonetheless permits the court to set the timing of discovery "for the convenience of the parties and the witnesses and in the interests of justice." Fed.R.Civ.P. 26(d). The rule allows the district court to order discovery early in the case and to order expedited discovery upon a showing of good cause. See Yokohama Tire Corp. v. Dealers Tire Supply. Inc., 202 F.R.D. 612, 614 (D.Ariz. 2001). Further, there is authority for the proposition that the adverse party is presumptively entitled to notice and an opportunity to be heard prior to any ruling on a motion for expedited discovery.Id. (citing Wirtz v. Rosenthal, 388 F.2d 290 (9th Cir. 1967); and Johnson v. Mammoth Recreations. Inc., 975 F.2d 604 (9th Cir. 1992)).
The district court in Ellsworth Associates. Inc. v. United States commented that "[e]xpedited discovery is particularly appropriate when a plaintiff seeks injunctive relief because of the expedited nature of injunctive proceedings." 917 F. Supp. 841, 844 (D.D.C. 1996) (citing Optic-Electronic Corp. v. United States, 683 F. Supp. 269, 271 (D.D.C. 1987); Onan Corp. v. United States, 476 F. Supp. 428, 434 (D.Minn. 1979)). In this case, Plaintiff has applied for and obtained a temporary restraining order preventing Defendant from moving, concealing, selling or transferring any of Plaintiff's assets in Defendant's possession. Plaintiff's application for a preliminary injunction is set for a hearing before the Honorable Martha Vazquez, Chief United States District Judge, on March 12, 2004. In Plaintiff's motion, it does not assert that inspection is necessary for the hearing on the application for preliminary injunction.
In Yokohama Tire Corp., supra, the Magistrate Judge referred to Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982), wherein the district court enumerated four factors for determining the propriety of expedited discovery: (1) irreparable injury, (2) some probability of success on the merits, (3) some connection between expedited discovery and the avoidance of the irreparable injury, and (4) some evidence that the injury that will result without expedited discovery looms greater than the injury that the defendant will suffer if the expedited relief is granted. Yokohama Tire Corp. 202 F.R.D. at 612-13; see also Twentieth Century Fox Film Corp. v. Mow Trading Corp., 749 F. Supp. 473, 475 (S.D. N.Y. 1990) (applying same test for allowing expedited discovery). Applying that test, Plaintiff fails the first leg. Plaintiff has not shown that it will suffer irreparable injury if it is not permitted expedited discovery. Plaintiff does allege that the material appropriated by Defendant is unique or irreplaceable. More importantly, Plaintiff does not allege that proof of Defendant's alleged conversion is only available through entrance upon Defendant's property and inspection of that property and materials therein. Inventory and examination of Plaintiff's own materials and records should reveal the disappearance of building materials in the amount alleged in the complaint.
Given the conclusion above, this Court does not reach the substantial question of whether notice and an opportunity to be heard is required before granting a motion for expedited discovery.
IT IS THEREFORE ORDERED that Plaintiff's Ex-Parte Motion for Expedited Discovery and to Permit Entry and Inspection of Land and Tangible Things is denied.