Opinion
No. CIV 09-2179-PHX-RCB(DKD)
03-12-2012
James K. Trueman, Plaintiff, v. Jason Johnson, Unknown Avena, and Unknown Molina, Defendants.
ORDER
Currently pending before the court is a motion by plaintiff pro se, James K. Trueman, "requesting" the court's "assist[ance]" in "obtain[ing] the names and addresses of the defendants [Unknown Avena, Jason Johnson, and Unknown Molina] from Compass Group USA, Inc. d/b/a[] Canteen Correctional Services ["CCS"] for service of process[.]" Pl.'s Mot. (Doc. 33) at 1 (emphasis omitted). Obviously there has not been, nor will there be, any response by these as yet unserved defendants. The court thus will proceed to resolve this matter based upon plaintiff's motion and the prior proceedings herein.
Background
In determining whether to grant an extension of time to serve under Fed.R.Civ.P. 4(m), this court "[e]ngag[ed] in the two-step analysis which the Ninth Circuit requires[.]" Ord. (Doc. 32) at 2:2-3 and at 6:6-7 (internal quotation marks and citation omitted). After so doing, on December 21, 2011, the court granted plaintiff sixty days from the date of that order, i.e., or until February 19, 2012, in which to "conduct discovery for the limited purpose of ascertaining . . . the full names and . . . the addresses of" the three defendants identified above. Id. at 17:11-16. Additionally, the court required plaintiff "[w]ithin that sixty day time frame" to "file with the court a notice indicating either: (1) that he has ascertained the names of defendants and their addresses; (2) or that he has not." Id. at 17:16-19. Following the provision of those names and addresses, the court indicated that it would "issue an order directing service." Id. at 17:21.
Plaintiff has been unable to ascertain those names and addresses, despite having written "a letter to [CCS] requesting" that information. Pl.'s Mot. (Doc. 33) at 1, ¶ 1. Plaintiff claims that he was "told that they [the three unserved defendants] [are] 'no longer are employees for [CCS].'" (emphasis in original). It is unclear as to when that letter was written and the response received, as plaintiff did not provide a copy of either. In any event, given CCS' purported response, plaintiff now claims to be "at [a] los[s] as to how [to] comply with" this court's prior order. Id. at 1, ¶ 2. Given that plaintiff filed the pending motion, setting forth his efforts in conducting the allowed discovery, within the 60 day time frame, the court finds that he has complied with this court's prior order in terms of timely notification.
The court further finds and ORDERS that plaintiff shall be allowed to conduct limited discovery as follows:
(1) in accordance with Fed.R.Civ.P. 31, as modified by this order, plaintiff may take the deposition by written questions of Canteen Correctional Services, through its corporate parent, the Compass Group;
(2) plaintiff shall be strictly limited to seeking from that entity the full names and the last known home addresses or locations of defendants Unknown Avena; Jason Johnson; and Unknown Molina;
(3) plaintiff shall have thirty (30) days from the date of entry of this order within which to serve and file his written questions;
(4) within that same thirty (30) day time frame, plaintiff shall also "deliver to the officer[,]" herein designated, i.e., the Electronic Court Recorder/Courtroom Deputy for this court, "a copy of all the questions served[.]" See Fed.R.Civ.P. 31(b). That officer shall then fully comply with Fed.R.Civ.P. 31(b) in its entirety. In that regard, if Canteen Correctional Services, through its corporate parent, the Compass Group, deems it be more expeditious to respond telephonically, that can be arranged;
This provision is included because Canteen Correctional Services' corporate headquarters is in North Carolina.
(4) regardless of the manner provided, defendants' home addresses or locations shall be placed under seal with the court;
(5) when it appears to the court that the discovery which this order permits has been completed, it shall issue an order directing service;
(6) if plaintiff does not comply with the time frame herein for commencing this limited discovery, this case shall be dismissed "without prejudice," subject to any statute of limitations defense.
____________________________
Robert C. Broomfield
Senior United States District Judge
Copies to counsel of record and plaintiff pro se