Opinion
CV-22-01793-PHX-JJT
10-24-2022
FBN Contracting LLC, Plaintiff, v. Unknown Party, et al., Defendants.
ORDER
Honorable John J. Tuchi, United States District Judge
At issue is Plaintiff FBN Contracting, LCC (“FBN”)'s Motion for Expedited Discovery to Identify Defendants and Trace Funds (Doc. 3). Plaintiff filed the instant motion on the same day it filed a Verified Complaint (Doc. 1). The Verified Complaint alleges that an unknown Defendant (“Doe I”) or unknown Defendants (“Does I, II and III”) used deceptive business emails to induce Plaintiff to wrongfully misdirect a total of $248,946.06 via electronic funds transfers to Defendant(s)'s bank account. Plaintiff requests expedited discovery to attempt to uncover the identity of the unknown Defendant(s) and to trace the funds misdirected to them. The Court grants Plaintiff's request for the reasons and under the parameters set forth below.
A court may authorize early discovery before the parties have conferred as required by Rule 26(f) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 26(d). In the Ninth Circuit, courts use the “good cause” standard to determine whether discovery should be allowed to proceed prior to a Rule 26(f) conference. See, e.g., PushPay IP, Ltd. v. Does 1-10, Case No. CV-19-1322-TSH, 2019 WL 1332720, at *3 (N.D. Cal. Mar. 25, 2019); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 614 (D. Ariz. 2001). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002).
The Ninth Circuit has held that “where the identity of the alleged defendant is not known prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (cleaned up) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Accordingly, courts not infrequently authorize expedited discovery to identify unknown defendants. See, e.g., PushPay, 2019 WL 1332720, at *4; Riding Films, Inc. v. John Does I-CCL, Case No. CV-13-00299-PHX-DGC, 2013 WL 2152552, at *4 (D. Ariz. May 16, 2013).
At this juncture, the Court cannot say that discovery clearly would not uncover the identity of Defendant(s). Plaintiff has identified the email address and bank accounts used by Defendant(s) in perpetrating the alleged fraud. (See Doc. 1 ¶ 15 (identifying the email address “abelejelfe2@gmail.com” as the sender of phishing emails), ¶¶ 23-27, 39 (describing a bank account with Regions Bank to which Plaintiff transferred funds and another with Chase Bank which Defendant(s) referenced in a phishing email.)
Nor is it clear that the Verified Complaint would be dismissed on other grounds. At this stage, Plaintiff's factual allegations must be taken as true and construed in the light most favorable to Plaintiff. See Cousin v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). The Court cannot say that Plaintiff's allegations fail to state a facially plausible claim upon which relief could be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In consideration of the administration of justice, the Court finds that need for the limited discovery that Plaintiff seeks here outweighs the potential prejudice to the responding parties. Plaintiff states that “[t]he nature of the alleged wrong makes the potential defendants' identifies unknown and not easily knowable.” (Doc. 3 at 1.) Plaintiff asserts that expedited discovery is the only way for it to identify the party or parties who allegedly defrauded Plaintiff and to pursue this lawsuit against them. (Id. at 3.) Plaintiff's request is narrowly tailored and does not appear excessively burdensome; Plaintiff represents that it will seek information concerning one email address and accounts with two banks. Moreover, upon service of a Rule 45 subpoena, the responding parties will have an opportunity to raise objections through a motion to quash or to modify the subpoena.
IT IS THEREFORE ORDERED granting Plaintiff FBN's Motion for Expedited Discovery to Identify Defendants and Trace Funds (Doc. 3).
IT IS FURTHER ORDERED granting discovery limited to:
1. The identity of the account holders of the bank accounts used by Defendant(s) as alleged in the Verified Complaint (“Account Holders”);
2. Address, telephone number, email address, internet protocol (“IP”) address and electronic identifiers, and any related contact information, of the Account Holders;
3. Documents and information referring or relating to account applications regarding the Account Holders' accounts;
4. Transactions in the Account Holders' accounts from August 1, 2022 to October 15, 2022;
5. Email communications referring or relating to the Account Holders and FBN Contracting, LLC or any of its employees, or Jim Easterly, or The Boss II Construction, LLC; or moving funds out of the accounts; and
6. All email communications from, to, or referring to, “abelejelfe2@gmail.com.”
IT IS FURTHER ORDERED that Plaintiff may immediately serve subpoenas under Rule 45 of the Federal Rules of Civil Procedure for documents, information, and records concerning the aforementioned discovery to Regions Bank; Google; Chase Bank; and The Boss II Company, LLC, under the following parameters:
1. A copy of this Order and the Verified Complaint shall be attached to the subpoena.
2. Respondents each shall have 20 days from the date of service to file any motions in this Court contesting the subpoena, including a motion to quash or modify the subpoena. If that 20-day time-period lapses without Respondents contesting the subpoena, Respondents shall have 10 days thereafter to produce to Plaintiff the information responsive to the subpoena.
3. Respondents shall confer with Plaintiff before assessing any charge in advance of providing the information requested in the subpoena. If a Respondent elects to charge for the costs of production, they must provide Plaintiff with a billing summary and cost reports.
4. Respondents shall preserve all information responsive to the subpoena pending their delivery of such information to Plaintiff or the final resolution of a timely filed and granted motion to quash the subpoena with respect to such information.
5. Any information disclosed to Plaintiff in response to a subpoena may not be used for any improper purpose and may be used solely for the purposes of serving and identifying Defendant(s) and prosecuting the claims asserted in the Verified Complaint.