Free Order on Motion to Expedite - District Court of California - California

Case 5:08-cv-01274-JW

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Filed 06/24/2008

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1 2 3 4 5 6 7 8 9 10 3A Entertainment Ltd, et al., Plaintiffs, v. 12 Constant Entertainment, Inc., et al., 13 Defendants. 14 15 3A Entertainment Ltd. ("3A") and Labcroft Ltd. (Labcroft) (collectively, "Plaintiffs") bring 16 this diversity action against Contstand Entertainment Inc. ("Constant") and Phillip Ho ("Ho") 17 (collectively, "Defendants") alleging, inter alia, breach of contract and fraud. Both defendants are 18 in default. (Docket Item No. 13.) Presently before the Court is Plaintiff's administrative request to 19 commence discovery. (Plaintiff's Case Management Statement, hereafter, "Statement," Docket Item 20 No. 14.) Plaintiff seeks the Court's authorization to begin discovery on the financial status of the 21 Defendants for purposes of alleging damages in a motion for default judgement. (Statement ¶ 4.) 22 Unless limited by court order, parties may obtain discovery regarding any nonprivileged 23 matter that is relevant to any party's claim or defense ­ including the existence, description, nature, 24 custody, condition, and location of any documents or other tangible things and the identity and 25 location of persons who know of any discoverable matter. Fed. R. Civ. P. 26(b)(1). For good cause, 26 the court may order discovery of any matter relevant to the subject matter involved in the action. Id. 27 28 / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 08-01274 JW ORDER GRANTING PLAINTIFFS' ADMINISTRATIVE REQUEST TO COMMENCE DISCOVERY

United States District Court

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For the Northern District of California

Case 5:08-cv-01274-JW

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Filed 06/24/2008

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The court may allow discovery even when parties have not conferred as required by Rule 26(f). Fed. R. Civ. P. 26(d)(2). The general rule of law is that upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977). While plaintiff may not serve requests for admission upon a non-answering defendant, plaintiff may use other discovery tools to obtain evidence to present a prima facie case at default judgment hearing, as, for example, by subpoenaing and taking deposition of non-parties such as defendant. In re Liu, 282 B.R. 904, 910 (C.D. Cal. 2002); Fed. R. Civ. P. 55(b)(2). However, a court may deny a plaintiff's request to conduct discovery in order to determine damages if plaintiff fails to identify any specific discovery that will lead to the determination of damages. Holmes v. Plath, 2007 WL 2782839, at *1 (E.D. Cal. September 24, 2007). In this case, Plaintiffs have made clear they are seeking information on the financial conditions of Defendants for purpose of gathering evidence to support a request for punitive damages. Although Plaintiffs may have difficulty obtaining compliance with discovery from Defendants who have yet to respond in any way, the Court finds it appropriate to allow Plaintiffs the opportunity to do so. Accordingly, the Court GRANTS Plaintiffs' request to commence discovery. Plaintiff may commence limited discovery into the financial status of Defendants for the purpose of proving punitive damages.

United States District Court

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For the Northern District of California

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Dated: June 24, 2008 JAMES WARE United States District Judge

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Case 5:08-cv-01274-JW

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Filed 06/24/2008

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: [email protected] [email protected] Dated: June 24, 2008 Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

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United States District Court

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For the Northern District of California

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