Opinion
No. 00-MC-203-KHV
Filed April 19, 2000
MEMORANDUM AND ORDER
On March 1, 2000, Patrick MacCormack ("MacCormack") filed a verified Petition (doc. 1) pursuant to Fed.R.Civ.P. 27(a) requesting leave to proceed with depositions prior to filing a lawsuit. In support of his Petition, MacCormack states he expects to bring a lawsuit against numerous defendants for various acts of "misdeeds" and "slander" made against him, but he presently is "unable to bring [the lawsuit] or cause [the lawsuit] to be brought." MacCormack Petition at p. 1. For the reasons set forth below, the Court finds the Petition should be denied.
MacCormack seeks the depositions of an individual named R.W. Brooke as well as numerous other individuals to be named at a later date.
Discussion
Rule 27(a)(1) of the Federal Rules of Civil Procedure provides that "[a] person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition." Fed.R.Civ.P. 27(a)(1). Subsection (a)(3) of Rule 27 provides that an order allowing examination may be entered only "[i]f the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice. Fed.R.Civ.P. 27(a)(3).
"Among the requirements which must be met before leave will be granted for the taking of pre-complaint depositions under [Rule 27] are, first, that the action petitioner contemplates bringing would be cognizable in a court of the United States and second, that a substantial danger exists that the testimony sought to be preserved by deposition would otherwise become unavailable before the complaint could be filed." In re Boland, 79 F.R.D. 665, 667 (D.D.C. 1978) (citations omitted.) MacCormack fails to meet the first or the second requirement.
Court of the United States
MacCormack asserts in his Petition that the action he contemplates bringing would be cognizable in a court of the United States; however, MacCormack fails to present any facts to support this conclusory assertion. As such, there is no basis to determine that federal jurisdiction will exist when the contemplated action is filed or that the matter currently is one that may be cognizable in any court of the United States.
Perpetuation of Testimony
In support of his request to take depositions prior to filing suit, MacCormack argues that permitting the depositions will allow him to discover relevant facts and thus provide an opportunity to evaluate the strengths and weaknesses of his prospective cause of action. MacCormack Petition at p. 2, 4 ("Most of the facts relevant to this civil action can be established and verified through depositions authorized by your court"; "[O]ne of the purposes of obtaining discovery through depositions is to evaluate and promote a settlement of the dispute . . . as well as to educate the parties involved as to the strengths and weakness of their positions.") MacCormack has not alleged, nor is there any basis for the Court to find, that the testimony of persons with knowledge of the material facts relevant to MacCormack's proposed lawsuit will be unavailable after a complaint is filed.
Instead, MacCormack's request rests solely on the basis that the depositions are needed to permit him to draft a proper complaint. It is well-settled, however, that Rule 27(a) "is not a method of discovery to determine whether a cause of actions exits; and, if so, against whom action should be instituted." Petition of Gurnsey, 223 F. Supp. 359, 360 (D.D.C. 1963); see also Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975); Petition of Ford, 170 F.R.D. 504, 507 (M.D.Ala. 1997); Petition of Gary Construction, Inc., 96 F.R.D. 432, 433 (Colo. 1983); In re Boland, 79 F.R.D. at 667; Petition of the State of North Carolina, 68 F.R.D. 410 (S.D.N.Y. 1975); 8 Wright and Miller, Federal Practice and Procedure, § 2071, pp. 332-33 (1973). Rule 27 is not a substitute for general discovery; instead, it is intended only for the perpetuation of testimony or other evidence. Ash v. Cort, 512 F.2d at 912. To that end, "Rule 27 properly applies only in that special category of cases where it is necessary to prevent testimony from being lost." Id.
Based on this discussion, the Court finds MacCormack's attempt to invoke Rule 27 is really an attempt to conduct discovery before filing suit; thus, he is not using Rule 27 to perpetuate testimony or "to prevent a failure or delay of justice." Fed.R.Civ.P. 27(a)(3). Accordingly, Petitioner's request for an order allowing him to take Rule 27(a) depositions is hereby DENIED and the Clerk of the Court is directed to terminate this matter from the Court's docket.
IT IS SO ORDERED.