Flores v. C.A.R & Associates

Background

The court had granted Jorge Flores’s application to proceed without paying filing fees and directed the U.S. Marshal to serve C.A.R & ASSOCIATES. The Marshal attempted service at 135 South State College Blvd., Suite 200, Brea, California 92821, but the building manager said that C.A.R & ASSOCIATES no longer leased space there.

Flores sought permission to conduct discovery before the required Rule 26(f) conference. He wanted to identify C.A.R & ASSOCIATES’s true legal name, if any, its owners or operators, and an address where the summons and complaint could be served. The complaint described “C.A.R & Associates” as an entity or fictitious business name of unknown origin and physical address, associated with a shared or virtual office address and the website resolutionsdepartment.com.

Flores stated that the name was not registered as an entity with the California Secretary of State, could not be found as a registered fictitious business name, and could not be positively identified through the databases and methods his counsel generally used to identify debt collectors. He proposed serving subpoenas on the virtual office, the webhosting service provider or domain registrar, and the telephone service provider.

Court’s analysis

Federal Rule of Civil Procedure 26(d) permits a court to authorize discovery before the usual conference when appropriate. Courts in the Ninth Circuit generally require “good cause,” meaning that the need for expedited discovery, considering the administration of justice, outweighs prejudice to the responding party.

The court applied factors concerning whether the plaintiff identified an unknown defendant specifically enough to show that the defendant could be sued in federal court, described efforts to locate the defendant, showed that the case could withstand a motion to dismiss, and demonstrated that the discovery was likely to produce information permitting service. The court noted that early discovery is routinely allowed to determine a defendant’s identity and address. It found that Flores had made a good-faith effort to identify the defendants and that good cause existed.

Order

The court granted Flores permission to serve the virtual office, webhosting service provider or domain registrar, and telephone service provider with Rule 45 subpoenas seeking the defendant’s true name and address. Flores must attach a copy of the order to each subpoena.

The order requires special notice if a provider qualifies as a “cable operator” under 47 U.S.C. § 522(5). Providers must serve the subscriber with copies of the subpoena and order within 30 days after service. Each subscriber and provider has 30 days after service to file a motion contesting the subpoena, including a motion to quash or modify it. If no timely challenge is filed, the provider has 10 days to produce the responsive information. Providers must preserve the subpoenaed information while awaiting production or resolution of a timely motion.

Flores may use information disclosed in response to the subpoenas only to protect and enforce the rights described in the complaint. Pending service, the court vacated the May 9, 2024 case-management conference. It also terminated as moot Flores’s counsel’s motion to appear by telephone.