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Landwehr v. Federal Deposit Insurance Corp.

June 28, 2010

TIMOTHY LANDWEHR ET AL., PLAINTIFFS,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR INDYMAC BANK, F.S.B. AND INDYMAC FEDERAL BANK, F.S.B., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 56

MEMORANDUM OPINION DENYING THE PLAINTIFFS'MOTION FOR LEAVE TO CONDUCT IMMEDIATE, EXPEDITED DISCOVERY TO IDENTIFY THE "DOE"DEFENDANTS AND TO EXTEND THE TIME FOR SERVICE ON THOSE DEFENDANTS;DISMISSING WITHOUT PREJUDICE THE PLAINTIFFS' CLAIMS AGAINST THE "DOE"DEFENDANTS

I. INTRODUCTION

This matter is before the court on the plaintiffs' motion for leave to conduct immediate, expedited discovery to identify the "Doe" defendants and to extend the time for service of those defendants. For the reasons discussed below, the court denies the plaintiffs' motion and dismisses without prejudice the claims against the "Doe" defendants.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiffs are former employees of IndyMac Bank, F.S.B. ("IMB"), IndyMac Federal Bank, F.S.B. ("IMFB") and IndyMac Resources, Inc. ("IMR"). See 3d Am. Compl. ¶¶ 3-22. They commenced this action against the Federal Deposit Insurance Corporation ("FDIC"), in its capacity as receiver for IMB and IMFB, and against IMR to recover severance, deferred compensation and bonus payments to which they were allegedly entitled, and to prevent the defendants from taking any actions to seek the repayment of "retention loans" extended to the plaintiffs during their employment. See generally id.

In addition to naming the FDIC and IMR as defendants in this case, the complaint names as defendants "DOES 1-50," representing certain individuals whose true names and capacities are unknown to the plaintiffs. See id. ¶ 26. As set forth in the complaint, the plaintiffs "allege that each of the fictitiously-named [Doe] Defendants is responsible in some manner for the occurrences herein alleged, and that the damages of the Plaintiffs and the putative class members herein alleged were proximately caused by such Defendants." Id.

In April 2010, the plaintiffs filed this motion for leave to conduct immediate, expedited discovery to identify the "Doe" defendants and to extend the time for service of the "Doe" defendants. See generally Pls.' Mot. The plaintiffs assert that they require immediate discovery to identify the "Doe" defendants and request 120 days following the granting of the motion to effect service on these defendants. Id. at 1-6. In the alternative, the plaintiffs request that if their request for expedited discovery is denied, the court extend the deadline for serving the "Doe" defendants to at least 120 days after the commencement of discovery. Id. at 7-8.

The FDIC opposes the plaintiffs' motion.*fn1 See generally FDIC's Opp'n. It asserts that because the plaintiffs failed to move for an extension of time to serve the "Doe" defendants until after the 120-day period for service had expired, their motion must be scrutinized under a heightened standard. Id. at 3-4. Furthermore, the FDIC argues that the plaintiffs' motion should be denied because they failed to use reasonable diligence in attempting to identify the "Doe" defendants. Id. at 4-7. Finally, the FDIC contends that the plaintiffs are not entitled to conduct expedited discovery because they have not shown good cause and have not reasonably limited their request.*fn2 Id. at 8-9.

With the plaintiffs' motion now ripe for adjudication, the court first considers the plaintiffs' request for expedited discovery, and then turns to the plaintiffs' alternative request for leave to serve the "Doe" defendants up to 120 days after discovery commences.

III. ANALYSIS

A. The Court Denies the Plaintiffs' Request for Expedited Discovery

"As a general rule, discovery proceedings take place only after the defendant has been served; however, in rare cases, courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant." Chung v. U.S. Dep't of Justice, 2001 WL 34360430, at *7 (D.D.C. Sept. 20, 2001), rev'd in part on other grounds, 333 F.3d 273 (D.C. Cir. 2003); accord Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).

The Federal Rules of Civil Procedure do not provide a standard to govern requests for expedited discovery. In re Fannie Mae Derivative Litig., 227 F.R.D. 142, 142 (D.D.C. 2005); see also FED. R. CIV. P. 26. Courts have, however, developed "two common judicial approaches" to assessing requests for expedited discovery. Humane Soc'y of U.S. v. Amazon.com, Inc., 2007 WL 1297170, at *2 (D.D.C. May 1, 2007) (citing In re Fannie Mae, 227 F.R.D. at 142-43); ...


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