Opinion
2:20-cv-01034-MCE-AC
08-11-2023
DIANA AKKAWI, et al., Plaintiffs, v. KASRA SADR, et al., Defendants.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR. SENIOR UNITED STATES DISTRICT JUDGE
Through this action, Plaintiffs Diana Akkawi, Yasmin Akkawi, Katelyn J. Button, Eric Stell, Steve W. Fox, and Edmond Tarverdian (collectively, “Plaintiffs”) seek to recover damages and obtain injunctive relief against Defendants Kasra Sadr (“Sadr”), the Car Law Firm (“CLF”), the Sadr Law Firm (“SLF”), and Nationwide VIN Marketing (“Nationwide”) (collectively, “Sadr Defendants”), as well as Defendant Ryan Bancaya (“Bancaya”). Plaintiffs allege, inter alia, that all Defendants conspired to acquire Plaintiffs' personal and private records from the California Department of Motor Vehicles (“DMV”) in order to solicit representation for litigation. See First Am. Compl., ECF No. 101, at 2 (“FAC”).
The DMV was a previous Defendant to this action before it was voluntarily dismissed by all Plaintiffs. See ECF Nos. 9-10.
Presently before the Court are the following motions: (1) Sadr Defendants' Motion for Summary Judgment, ECF No. 137; (2) Plaintiffs' second Administrative Motion for an Order Vacating the Current Discovery Cut-off, ECF No. 140; and (3) Plaintiffs' Motions for Alternative Service of Non-Party Witnesses Nima Heydari (“Heydari”) and Narissa Nelson (“Nelson”), ECF Nos. 171-72. Additionally, on July 14, 2023, this Court ordered Plaintiffs “to show cause in writing as to whether Defendant Ryan Bancaya was properly served in accordance with Federal Rule of Civil Procedure 4(f) and the Hague Convention” (“OSC”). ECF No. 183. Plaintiffs timely filed a response to the OSC on July 24, 2023, and Defendants filed objections thereto on July 28, 2023. ECF Nos. 184-85.
For the following reasons, Sadr Defendants' Motion for Summary Judgment is DENIED without prejudice, Plaintiffs' Motions for Alternative Service are each GRANTED in part and DENIED in part, Plaintiffs' Administrative Motion for an Order Vacating the Current Discovery Cut-off is GRANTED in part and DENIED in part, and the OSC is DISCHARGED.
Because oral argument would not have been of material assistance, the Court ordered these matters submitted on the briefs. E.D. Local Rule 230(g).
BACKGROUND
A. Procedural History
On May 20, 2020, Plaintiffs filed their initial Complaint in this Court, alleging the following causes of action against Sadr Defendants: (1) Violations of the Driver's Privacy Protection Act (18 U.S.C. §§ 2721 et seq.); (2) Violations of California Vehicle Code §§ 1808 et seq.; (3) Conversion; (4) Trespass to Personal Property; (5) Intrusion into Private Affairs; (6) Negligence; (7) Civil Conspiracy; (8) Unjust Enrichment; (9) Violations of California's False Advertising Law (California Business and Professions Code §§ 17500 et seq.); (10) Violations of California's Unfair Competition Law (id. §§ 17200 et seq.); (11) Violation of the Federal Right to Privacy; and (12) Declaratory Relief. ECF No. 1. About a month later, on June 22, 2020, Plaintiffs filed a Motion for a Temporary Restraining Order and Motion for Preliminary Injunction, which this Court denied. ECF Nos. 12, 28.
On July 7, 2020, Sadr Defendants filed Motions to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and the Anti-SLAPP (Strategic Lawsuit Against Public Participation) provisions of California Code of Civil Procedure § 425.16(b). See ECF Nos. 21-22. The Court denied both Motions in their entirety on September 1, 2021. ECF No. 30. Sadr Defendants subsequently filed their Answer on October 1,2021. ECF No. 32. The deadline to complete non-expert discovery was October 1,2022. See ECF No. 5, at 2 (“All discovery, with the exception of expert discovery, shall be completed no later than three hundred sixty-five (365) days from the date upon which the last answer may be filed with the Court pursuant to the Federal Rules of Civil Procedure.”).
All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure.
Plaintiffs obtained information relating to Bancaya through Sadr's deposition on February 10, 2022, and through the production of documentation showing Sadr's monthly payments to Bancaya on April 15, 2022. See ECF No. 35, at 8-9. On April 28, 2022, Plaintiffs filed a Motion for Leave to File the FAC, which sought to add Bancaya as a Defendant. See id. A couple months later, on July 1,2022, the assigned magistrate judge denied a motion for a protective order filed by Sadr Defendants on procedural grounds. ECF No. 63. The magistrate judge also denied four of Plaintiffs' motions to compel discovery responses on procedural grounds on July 5, 2022. ECF No. 64.
Plaintiffs filed their first Administrative Motion for an Order Vacating the Current Discovery Cut-off on September 6, 2022. ECF No. 82. This Court granted that Motion and Plaintiffs' Motion for Leave to File the FAC on September 21,2022, and the deadline to complete non-expert discovery was extended by 180 days to March 21, 2023. See ECF No. 97. Plaintiff subsequently filed the operative FAC on September 27, 2022. ECF No. 101. That same day, the magistrate judge granted in part and denied in part Plaintiffs' motions to compel discovery responses and denied Sadr Defendants' motion for a protective order. ECF Nos. 102-03.
On October 18, 2022, Sadr Defendants filed a Motion to Dismiss the FAC, which was fully briefed. ECF Nos. 107, 115, 118. The magistrate judge granted another motion to compel filed by Plaintiffs on February 9, 2023. ECF No. 129. Plaintiffs subsequently filed a motion for sanctions on February 10, 2023, and noticed it before the magistrate judge, but a ruling has not yet issued. ECF No. 130; see ECF No. 176 (vacating hearing on the motion for sanctions in light of the Court's order staying the case).
On February 16, 2023, before the Court could issue an order on the Motion to Dismiss, Sadr Defendants filed a Motion for Summary Judgment, which stated that they withdrew their Motion to Dismiss as a result. ECF No. 137, at 2. Plaintiffs filed their second Administrative Motion to Vacate the Current Discovery Cut-off on the same day following Sadr Defendants' refusal to stipulate to extend the discovery deadline. ECF No. 140; see also Ex. 3, id., at 29-35 (emails between counsel).
On March 9, 2023, the magistrate judge denied Plaintiffs' motion to compel responses to a second set of requests for production. ECF No. 151. Sadr Defendants filed a request for entry of default against Bancaya on March 13, 2023, which was declined by the Clerk of Court on grounds that Bancaya “is a resident of a foreign country whose 90 day response time has not yet expired.” ECF Nos. 156, 158. On March 17, 2023, the magistrate judge denied Plaintiffs' motion to compel a non-party to respond to a subpoena on procedural grounds. ECF No. 168. Days later, on March 27, 2023, Plaintiffs filed their Motions for Alternative Service of subpoenas on non-parties Heydari and Nelson. ECF Nos. 171-72. In light of the numerous pending motions, the Court stayed the case on April 5, 2023. ECF No. 175.
B. Attempted Service of Subpoenas on Heydari and Nelson
1. Heydari
Heydari is an attorney at CLF and works with Sadr. See Ex. 4, Sadr Dep., ECF No. 171, at 39-41. On August 29, 2022, Heydari was personally served at his residence in San Diego, California, with the first “Subpoena to Testify at a Deposition in a Civil Action” and an attachment containing requests for production of documents. See Ex. 3, Sifers Decl., id., at 36. Heydari subsequently filed a motion to quash the subpoena, which the magistrate judge granted on December 15, 2022. See ECF Nos. 110, 122.
On January 6, 2023, Plaintiffs issued their second “Subpoena to Testify at a Deposition in a Civil Action” with an appearance date of February 10, 2022, and Plaintiffs' counsel instructed the process server to personally serve Heydari at the same residence. Sifers Decl., ECF No. 171, at 13 ¶¶ 7-8. According to the process server's “Declaration of Reasonable Diligence,” the following attempts to personally serve Heydari at his residence were made, some of which Heydari disputes:
1. January 13, 2023, at 10:10 a.m.: “Attempted service, subject not home. Per concierge, subject is on vacation and is not sure when [he]'ll be back.” Heydari states he was on vacation.
2. January 16, 2023, at 11:13 a.m.: “Attempted service, subject not home per concierge. Not sure if back from vacation.” Heydari states he was on vacation.
3. January 23, 2023, at 5:20 p.m.: “Attempted service, there was no answer[.]” Heydari states he “was out for work, and hadn't returned home yet.”
4. January 28, 2023, at 8:20 a.m.: “Attempted service, there was no answer. No movement, no response, no activity.” Heydari states that this attempt was made “during work hours[.]”
5. January 30, 2023: “STAKEOUT AT RESIDENCE (2hrs): 7:30 AM - 9:30 AM - No activity throughout stakeout. Attempted service, there was no answer. No one left or entered the unit.” Heydari disputes this, claiming that the process server could not “know whether or not any activity occurs at [his] unit door without getting past the concierge at the entrance to [the] complex, much less conduct a two-hour stake-out as they have claimed.”See Ex. 6, Sifers Decl., id., at 51-52; Heydari Decl., ECF No. 178, at 6-7. On March 2, 2023, Plaintiffs' counsel emailed the subpoena to Heydari, but he did not respond. See Ex. 7, Sifers Decl., ECF No. 171, at 54.
2. Nelson
Nelson is the office manager at CLF. See Ex. 1, Sadr Dep., ECF No. 172, at 2324. On September 30, 2022, after multiple attempts, Nelson was personally served at her residence in San Diego, California, with the first “Subpoena to Testify at a Deposition in a Civil Action” and an attachment containing requests for production of documents. See Exs. 3-4, Sifers Decl., id., at 42-48. Like Heydari, Nelson also filed a motion to quash the subpoena, which the magistrate judge granted on December 15, 2022. See ECF Nos. 108, 122.
On January 6, 2023, Plaintiffs issued their second “Subpoena to Testify at a Deposition in a Civil Action” with an appearance date of February 10, 2022, and Plaintiffs' counsel instructed the process server to personally serve Nelson at the same residence. Sifers Decl., ECF No. 172, at 14 ¶¶ 7-8. According to the process server's “Not Found or Non Service Return” form, the following attempts to personally serve Nelson at her residence were made, most of which Nelson disputes based on the history of her doorbell camera with a motion detector:
1. January 12, 2023, at 4:51 p.m.: “Attempted service, A Caucasian/F[emale] about 13-15 [years old] said the subject doesn't live here, then told [the server] to get off her property. There is a silver SUV in the driveway, [license omitted]. They were avoiding before.” Nelson states that her
niece “answered and told the man [Nelson] was not home. Since she was there alone, she told him to leave.” Furthermore, Nelson generally claims that she has five vehicles and that she “utilize[s] more than one,” so “[j]ust because the SUV is there, does not mean” she is.
2. January 14, 2023, at 7:40 a.m.: “Attempted service, there was no answer.” Nelson claims that “no motion was detected and no one rang the doorbell around” this time.
3. January 15, 2023, at 4:15 p.m.: “Attempted service, there was no answer. Gate is locked, car is here.” Nelson again claims that “no motion was detected and no one rang the doorbell around” this time.
4. January 16, 2023, at 7:19 a.m.: “Attempted service, there was no answer. No changes, same car in driveway.” Nelson does not address this in her declaration.
5. January 18, 2023, at 2:45 p.m.: “Attempted service, there was no answer. Heard someone talking inside. Evading service.” Nelson again claims that “no motion was detected and no one rang the doorbell around” this time.
6. January 20, 2023, at 6:05 p.m.: “Attempted service, there was no answer. The SUV is present.” Nelson claims that she “was out at an appointment” but that “no motion was detected and no one rang the doorbell around” this time.
7. January 21,2023, at 7:13 a.m.: “Attempted service, there was no answer. No change.” Nelson again claims that “no motion was detected and no one rang the doorbell around” this time.
8. January 27, 2023, at 6:10 a.m.: “STAKEOU[T] AT RESIDENCE (2hrs): Lights inside garage. Her car is in the driveway. House dark. / 7:00[] AM No activity / 8:10 AM - Attempted service, there was no answer, nobody left.” Nelson claims that “it would have been impossible if someone was
outside on a stakeout not to have seen [her] leave taking the kids to school.”
9. January 28, 2023, at 7:04 a.m.: “Attempted service, there was no answer.” Nelson again claims that “no motion was detected and no one rang the doorbell around” this time.
10. January 29, 2023, at 7:10 p.m.: “Attempted service, there was no answer.” Nelson claims that she “was at an appointment[.]”See Ex. 7, Sifers Decl., id., at 67; Nelson Decl., ECF No. 169, at 6-7. On March 2, 2023, Plaintiffs' counsel emailed the subpoena to Nelson, but she did not respond. See Ex. 8, Sifers Decl., ECF No. 172, at 70.
C. Service on Bancaya
On April 13, 2022, Plaintiffs' counsel states that he located Bancaya's LinkedIn profile, which listed an address in the Philippines. Sifers Decl., ECF No. 184, at 11 ¶ 3; see Ex. 2, id., ECF No. 184-2 (screenshot of a LinkedIn profile for Ryan Bancaya). As previously stated, this Court granted Plaintiffs' Motion for Leave to File the FAC to add Bancaya as a Defendant on September 21,2022, and Plaintiffs filed the FAC on September 27, 2022. ECF Nos. 97, 101. Plaintiffs' counsel states that his office began their attempts to serve Bancaya in the Philippines in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) and the Filipino Guidelines and Rules of Civil Procedure. See Sifers Decl., ECF No. 184, at 12 ¶ 8.
On October 18, 2022, Plaintiffs' counsel submitted the Summons and FAC, Request for Service Abroad of Judicial or Extrajudicial Documents, and confirmation of payment to the Service Convention Unit for the Office of the Court Administrator of the Supreme Court of the Philippines (“Service Convention Unit”). Id. at 13-14 ¶ 12. The Service Convention Unit confirmed receipt of the documents on October 30, 2022. Id. at 14 ¶ 13.
On December 16, 2022, and January 5, 2023, Plaintiffs' counsel reached out to the Regional Trial Court in Silay City, Negros Occidental (“Regional Trial Court”) for a status update. Id. at 14 ¶ 15. On January 9, 2023, the Regional Trial Court sent the following email:
Please send us the exact address of Ryan Bancaya for the following reasons:
1. There are many Bancayas in Silay City
2. After diligent efforts, we could not trace his whereabouts
Ex. 13, id., ECF No. 184-13, at 2-3. The next day, on January 10, 2023, Plaintiffs' counsel emailed the address found on the LinkedIn profile to the Regional Trial Court. Id. at 2. Plaintiffs' counsel states the following:
I believe that the Regional Trial Court, using the address we provided, was able to use its[] resources to determine that Defendant Bancaya resided at Centerville. The Centerville address is located within three miles of the address I provided from Defendant Bancaya's LinkedIn profile. Shortly thereafter, I believe a process server was assigned to effectuate service on Defendant Bancaya.Sifers Decl., ECF No. 184, at 14-15 ¶ 15.
Between January 17 and February 3, 2023, Plaintiffs' counsel states that his office “made multiple inquiries as to the status on the service of Defendant Bancaya and [counsel] was informed that the Regional Trial Court had been unable to effectuate service.” Id. at 15 ¶ 17. On February 6, 2023, the Regional Trial Court stated in an email that personal service was attempted on January 27, February 2, and February 6, but Bancaya was “not around.” Ex. 15, id., ECF No. 184-15, at 2. However, on February 7, 2023, Plaintiffs' counsel states that his office received confirmation that Bancaya was served. Sifers Decl., ECF No. 184, at 15-16 ¶ 19. According to the proof of service filed with the Court on February 8, 2023, a Filipino process server says that he unsuccessfully made three attempts on different days to personally serve Bancaya, but on February 7, the summons was served on a housekeeper “with sufficient age and discretion” at the residence “who acknowledged recei[pt] [of] the summons and complaint with Annexes and refused to sign.” See ECF No. 128. On February 10, 2023, Plaintiffs' counsel “caused [his] office to serve” written discovery requests and a notice of deposition scheduled for March 16, 2023. Sifers Decl., ECF No. 140, at 9 ¶ 5. To date, Bancaya has not appeared in this action or responded to Plaintiffs' discovery requests.
STANDARDS
A. Motion for Alternative Service
Rule 45(b)(1) states that “[s]erving a subpoena requires delivering a copy to the named person[.]” “The majority rule is that Rule 45 requires personal service, as opposed to service by mail.” RP Golden State Mgmt., LLC v. Ohio Sec. Ins. Co., No. 1:19-cv-00600-DAD-JLT, 2020 WL 4748324, at *5 (E.D. Cal. Aug. 17, 2020) (collecting cases). “However, a growing but still minority trend among courts has been to allow substitute service of a Rule 45 subpoena via alternative methods, such as mail delivery pursuant to a court order.” Id. (collecting cases). “Courts are more inclined to grant such alternative service where the serving party has provided sufficient evidence of its earlier diligence in attempting to effectuate personal service.” Fujikura Ltd. v. Finisar Corp., No. 15-mc-80110-HRL (JSC), 2015 WL 5782351, at *5 (N.D. Cal. Oct. 5, 2015); see Hardy v. Moreno, No. 1:21-cv-00327-ADA-EPG (PC), 2022 WL 4667108, at *1 (E.D. Cal. Sept. 30, 2022) (finding service of the subpoena by mail appropriate due to the nonparty's refusal to accept service). Even if the Court grants alternative service, the method must still be “reasonably calculated to provide timely, fair notice and an opportunity to object or file a motion to quash.” Fujikura, 2015 WL 5782351, at *5.
B. Service Under Rule 4(f) and the Hague Service Convention
Rule 4(f)(1) provides, in relevant part, that
[u]nless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served at a place not within any judicial district of the United States:
by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents[.]
Under the Hague Service Convention, the Central Authority of the country where the defendant is located will effectuate service. See Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters arts. 3-5, Nov. 15, 1965, 20 U.S.T. 361,658 U.N.T.S. 163. Specifically,
[t]he Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either -
(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
(b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.Id. at art. 5. The Central Authority must complete a certificate which “shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.” Id. at art. 6. Both the United States and the Philippines are signatories to the Hague Service Convention. See Hague Conference on Private International Law, https://www.hcch.net/en/states/hcch-members/details1/?sid=121 (last visited August 7, 2023).
C. Motion to Vacate Current Discovery Cut-Off
Generally, the Court is required to enter a pretrial scheduling order within 90 days of service of the complaint. Fed.R.Civ.P. 16(b). The scheduling order “controls the course of the action” unless modified by the Court. Fed.R.Civ.P. 16(d). Orders entered before the final pretrial conference may be modified upon a showing of “good cause,” Fed.R.Civ.P. 16(b), but “[t]he court may modify the order issued after a final pretrial conference only to prevent manifest injustice.” Fed.R.Civ.P. 16(e); see also Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992).
Rule 16(b)'s “good cause” standard primarily considers the diligence of the party seeking the amendment. Id. at 609. The district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Id.; Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment). Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Johnson, 975 F.2d at 609. “Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id. (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)). If the moving party was not diligent, the Court's inquiry should end. Id.
ANALYSIS
A. Plaintiffs' Motions for Alternative Service
Because their process servers made numerous unsuccessful attempts to serve Heydari and Nelson with deposition subpoenas at their residences, Plaintiffs ask the Court to permit service of the subpoenas and copies of the Court's order by alternative means, specifically as follows: (1) delivery “by U.S. Mail, First Class, Postage Prepaid, and by Certified Mail, Return Receipt Requested, Postage Prepaid,” to Heydari and Nelson's residences; (2) delivery “by U.S. Mail, First Class, Postage Prepaid, and by Certified Mail, Return Receipt Requested, Postage Prepaid,” to their place of business located at 1455 Frazee Road, Suite 500, San Diego, California 92108; (3) delivery to their email addresses; and (4) personal delivery at their residences by “knock[ing] on the door and providing] a copy to any person answering,” but if no one answers the door, the process server shall leave copies of the documents “at the door in a conspicuous place.” See ECF Nos. 171, at 9; 172, at 9-10. Heydari and Nelson each filed near- identical oppositions to these Motions, both of which merely argue that service by publication is not appropriate. See ECF Nos. 169, at 4-5; 178, at 4-5. There is no request to serve by publication before the Court, however, so these arguments are irrelevant.
As previously stated, a minority of courts allow alternative service usually when “the serving party has provided sufficient evidence of its earlier diligence in attempting to effectuate personal service.” Fujikura, 2015 WL 5782351, at *5. Here, the process server made numerous attempts to serve Heydari and Nelson at their residences on multiple days and at different times. See Ex. 6, Sifers Decl., ECF No. 171, at 51-52; Ex. 7, Sifers Decl., ECF No. 172, at 67. While Heydari and Nelson have given various reasons as to why they were not present, the Court finds that Plaintiffs and their process server have been extremely diligent in trying to effectuate personal service, especially since Heydari and Nelson were personally served with the initial subpoenas at the same residences back in August and September 2022. See Ex. 3, Sifers Decl., ECF No. 171, at 36; Ex. 4, Sifers Decl., ECF No. 172, at 48. Neither Heydari nor Nelson have even addressed Plaintiffs' proposed alternative service plan, let alone attempted to explain why it would be insufficient or improper, other than to object to Plaintiffs' counsel emailing them. See Nelson Decl., ECF No. 169, at 7; Heydari Decl., ECF No. 178, at 6. In fact, both of them state in their declarations that Plaintiffs' counsel “can mail letters at [their] address[es], and [they] will get them.” See id.
Accordingly, the Court finds that in this instance, alternative service of the subpoenas on Heydari and Nelson is appropriate. However, the Court will only permit service of the subpoenas by mail to Heydari and Nelson's residences and office. Therefore, Plaintiffs' Motions for Alternative Service are GRANTED as to service by mail but DENIED as to the other alternative methods.
B. OSC as to Service on Bancaya
As previously stated, this Court ordered Plaintiffs to show cause in writing as to whether Bancaya was properly served. ECF No. 183. According to Plaintiffs' counsel, Filipino Rule of Civil Procedure 14, § 6, allows substituted service in the following instance:
If, for justifiable causes, the defendant cannot be served personally after at least three (3) attempts on two (2) separate dates, service may be effected:
(a) By leaving copies of the summons at the defendant's residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein[.]
Ex. 6, Sifers Decl., ECF No. 184-6, at 2. Because the Filipino authorities unsuccessfully attempted to personally serve Bancaya three times, Plaintiffs' counsel states it was proper to serve the housekeeper. See ECF No. 184, at 9. The Court agrees. Accordingly, because the Court finds that Bancaya was properly served in accordance with Rule 4(f), the Hague Service Convention, and the Filipino Rules of Civil Procedure, the OSC issued on July 14, 2023, is DISCHARGED.
C. Plaintiffs' Second Administrative Motion for Order Vacating the Current Discovery Cut-off
Like with their previous Motion, Plaintiffs once again ask the Court to continue the fact discovery deadline by six to eight months. See ECF No. 140, at 6. First, Plaintiffs argue that this is necessary “[g]iven the need to conduct discovery on the claims and parties to the [FAC], and the pending ruling on [Sadr] Defendants' Motion to Dismiss, which will likely result in Defendants filing an Answer and discovery being conducted on that Answer[.]” Id. at 5. However, Sadr Defendants withdrew their Motion to Dismiss and aside from adding Bancaya as a Defendant, the material allegations in the FAC are the same as those in the original Complaint. Sadr Defendants thus are “not required to file a new answer to an amended complaint when the allegations in the amended complaint do not ‘change the theory or scope of the case.'” KST Data, Inc. v. DXC Tech. Co., 980 F.3d 709, 715 (9th Cir. 2020) (citation omitted).
Plaintiffs also assert that Sadr Defendants “have failed and refused to respond to a number of discovery requests which will necessitate additional law and motion[.]” ECF No. 140, at 6 (stating that there are “various discovery disputes, namely Defendants' refusal to respond to some of Plaintiffs' written discovery” and that “there are a multitude of outstanding discovery issues to which the parties intend to seek Court intervention.”). Aside from these generic statements, Plaintiffs have not provided any indication as to what discovery from Sadr Defendants is still outstanding and why they have not been able to acquire it after three years of litigation. As set forth above, Plaintiffs have filed numerous motions to compel discovery responses over the course of this litigation and the magistrate judge has ruled on all of them except one pending motion for sanctions.
Lastly, Plaintiffs argue that a discovery extension is appropriate because Bancaya was just served. See id. at 6. However, Bancaya has not yet appeared in this action despite Plaintiffs serving him with the FAC, written discovery requests, and a notice of deposition. When a defendant fails to appear, the proper recourse for a plaintiff is to obtain an entry of default. See Fed.R.Civ.P. 55(a). Although Plaintiffs want Bancaya to respond to their discovery requests, this case cannot remain at a standstill waiting for one party who may or may not respond.
Because the Court is granting Plaintiffs' Motions for Alternative Service, fact discovery will need to be reopened to conduct the depositions of Heydari and Nelson. As a result, the Court is inclined to give Plaintiffs one last opportunity to obtain discovery from Bancaya. With that said, the Court finds that Plaintiffs have not demonstrated good cause to reopen all non-expert discovery for six to eight months. Therefore, the Court will extend the discovery deadline by ninety (90) days only for the limited purposes of (1) serving subpoenas on and conducting depositions of Heydari and Nelson and (2) obtaining discovery from Bancaya. No good reason has been presented and the Court will not extend the fact discovery deadline again.
D. Sadr Defendants' Motion for Summary Judgment
Because discovery is being reopened for limited purposes, Sadr Defendants' Motion for Summary Judgment, ECF No. 137, is DENIED without prejudice.
CONCLUSION
For the foregoing reasons, the Court orders the following:
1. Plaintiffs' Motions for Alternative Service, ECF Nos. 171-72, are each GRANTED in part and DENIED in part. Not later than seven (7) days from the issuance of this Memorandum and Order, Plaintiffs shall serve Heydari and Nelson a copy of the subpoena and a copy of this Memorandum and Order by mail delivery to their residences and office only.
2. The OSC issued on July 14, 2023, ECF No. 183, is DISCHARGED.
3. Plaintiffs' Administrative Motion for an Order Vacating the Current Discovery Cut-off, ECF No. 140, is GRANTED in part and DENIED in part. Discovery is reopened for ninety (90) days for the following limited purposes only: (a) serve subpoenas on and conduct depositions of Heydari and Nelson and (b) obtain discovery from Bancaya.
4. Sadr Defendants' Motion for Summary Judgment, ECF No. 137, is DENIED without prejudice.
5. The stay imposed on April 5, 2023, ECF No. 175, is LIFTED.
IT IS SO ORDERED.