Case No. CV 08-476-PHX-MHM.
May 28, 2008
Currently before the Court is Plaintiff ACE American Insurance Company's (Plaintiff's) ex parte motion to permit discovery prior to the Rule 26(f) conference (Dkt. #7), and Plaintiff's motion for extension of time to effect service of process on Defendant Uchino Keiicmiro (Dkt. #8).
The instant litigation is a subrogation action for workers' compensation benefits paid by Plaintiff, and the underlying claim arises out of an automobile accident that occurred in Phoenix, Arizona on or around March 13, 2006. (Dkt. #7, p. 1; Ex. 1). Plaintiff alleges that Defendant Keiicmiro, a Japanese national and named defendant, struck the vehicle in which Plaintiff's insured was a passenger; the accident injured Plaintiff's insured, which required that Plaintiff pay workers' compensation benefits on behalf of its insured. (Dkt. #7, p. 1). At the time of the motor vehicle accident, Defendant Keiicmiro was driving a car rented from Southern United Rent-A-Car, d/b/a Sakura Rent-A-Car ("Sakura"), and insured by Zurich Insurance ("Zurich") or its subsidiary, Empire Fire and Marine Insurance Company ("Empire"). (Id.).
Plaintiff stated that it served Zurich, Empire, and Sakura with subpoenas duces tecum, requesting production of records relating to the rental of the vehicle driven by Defendant Keiicmiro at the time of the accident. (Dkt. #7, p. 2). However, counsel for Zurich, who responded on behalf of Zurich, Empire, and Sakura, stated that her clients would not provide the requested documents until after the Rule 26(f) conference took place and discovery was initiated in this litigation. (Dkt. #7; Ex. 2). As such, Plaintiff filed the instant action requesting that the Court issue an ex parte order authorizing Plaintiff to undertake prelitigation discovery pursuant to Rule 26(d).
However, Rule 26(d) only provides that parties may conduct discovery prior to their Rule 26(f) conference if "the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise. . . ." Although Rule 26(d) may allow the Court, based on a showing of good cause, to order discovery prior to the parties' Rule 26(f) conference "for the convenience of the parties and witnesses and in the interests of justice," Plaintiff cites the Court to no authority that would permit the Court to allow the requested discovery prior to the completion of service of process under Rule 4 of the Federal Rules of Civil Procedure. The Court is unaware of any authority that would permit it to order prelitigation discovery other than in relation to issues of jurisdiction and venue, including jurisdiction over the person and the legal sufficiency of service of process. See 23 Am. Jur. 2d Depositions and Discovery § 31 ("A Federal District Court has the inherent and legitimate authority to issue orders of discovery directed to nonparty witnesses, as necessary for the court to determine and rule upon its own jurisdiction, including jurisdiction over the subject matter."). However, in the instant action, it appears that Plaintiff's ex parte motion seeking prelitigation discovery is directed to the production of certain nonparties' records related to the rental of the vehicle driven by Defendant Keiicmiro at the time of the accident.
Ex parte motions are rarely justified, and to be justified, the evidence must show that the moving party's cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures. Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613 (D.Ariz. 2001). Plaintiff contends that its ex parte motion should be granted "[i]n the interests of expeditiously resolving this matter, minimizing unnecessary litigation expenses, and keeping in mind the interests of judicial economy," because otherwise Plaintiff would have to serve Defendant Keiicmiro with process according to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters pursuant to Rule 4(f) of the Federal Rules of Civil Procedure. (Dkt. #7, p. 2). Although the Court acknowledges that this litigation may turn on the seemingly simple issues of the applicable insurance policy limits for the rental car that Defendant Keiicmiro was driving during the accident and the availability of other insurance, Plaintiff has offered no evidence to indicate that adherence to the procedures contemplated by Rule 4 of the Federal Rules of Civil Procedure would somehow prejudice Plaintiff's case or cause undue expense. As such, the Court denies Plaintiff's ex parte motion to conduct prelitigation discovery at this time.
Service of process by international mail is not prohibited under Article 10(a) of the Hague Convention, as long as receiving country does not object and the law of the forum affirmatively authorizes service by international mail. See Brockmeyer v. May, 383 F.3d 798, 808-09 (9th Cir. 2004).
IT IS HEREBY ORDERED that Plaintiff's Ex Parte Motion to Permit Discovery Prior to Rule 26(f) Conference (Dkt. #7) is DENIED. IT IS FURTHER ORDERED that Plaintiff's motion for extension to time to effect service of process on Defendant (Dkt. #8) is GRANTED IN PART. Plaintiff is directed to effect service of process on Defendant(s) pursuant to Rule 4(f) within 120 days of this order.