Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:07-cv-04946-JSW

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Filed 01/10/2008

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CHRISTOPHER COOKE, CA Bar #142342 STEPHEN S. WU, CA Bar # 205091 COOKE KOBRICK & WU LLP 177 Bovet Road, Suite 600 San Mateo, CA 94402 Email: [email protected] [email protected] Tel: (650) 638-2370 Fax: (650) 341-1395 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MEI-FANG LISA ZHANG, BAY AREA AFFORDABLE HOUSING, LLC, XUEHUAN GAO, YANG-CHUN ZHANG, CAROL JIAN DENG, and HAO LIANG, ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) WEI-MAN RAYMOND TSE, RUN PING ) ) ZHOU a.k.a. FLORA ZHOU, THERESA WONG, JAMES YU, BILL SHU WAI MA, ) ) MOLLY LAU, VICTOR SO, JIAN XIAO, ) CHRIST INVESTMENT SERVICE INC., CIS ) SERVICE, INC., PACIFIC BEST GROUP ) ) LTD. a.k.a. PACIFIC BEST COMPANY LTD., and SOUTH CHINA INVESTMENT ) ) INC., ) Defendants. ) Case No.: C-07-04946 JSW (Related to C-05-02641 JSW) ADMINISTRATIVE MOTION FOR LEAVE TO ISSUE SUBPOENAS AND MOTION FOR EXTENSION OF TIME TO SERVE COMPLAINT

Pursuant to Local Rules 7-11 and 6-3, and Fed. R. Civ. P. 6(b), Plaintiffs move this Court for (1) leave to issue subpoenas in aid of service of process on Theresa Wong and James Yu, and (2) an extension of time until March 31, 2008 to complete service of process on Ms. Wong and Mr. Yu, and in support thereof, states as follows: -1ADMINISTRATIVE MOTION FOR LEAVE TO ISSUE SUBPOENAS AND MOTION FOR EXTENSION OF TIME TO SERVE COMPLAINT Case No.: C-07-04946 JSW

Case 3:07-cv-04946-JSW

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I.

BACKGROUND This is an action, both in law and in equity, brought by victims of commodities fraud

udrh R ce e If ecd orp O gn ao A t" IO )n t C m oi net akt rnl ne C r t rai t n c( C " ad h o m d y e e u u zi R e t E cag A t" E " I t iC m ln Pa tfs tt thy r i i da w o xhne c( A ) n h r o p i , ln f teh t a n v ul h C . e a t i is a a e e d i s invested large sums of money with Defendants for foreign currency futures trading, but D f dn ' ui s s e w o y r dl t n D f dn s lPa tf i et et e nat bs es w r hl f uu n ad e nat t e ln f 'n s n . e s n e e l a e, e so i is v m s Plaintiffs filed their Complaint on September 24, 2007. Plaintiffs have diligently attempted to serve all the defendants in this case since filing their Complaint. They have served and filed returns of service for the following defendants: Wei-Man Raymond Tse, Run Ping Zhou a.k.a. Flora Zhou, Bill Shu Wai Ma, Molly Lau, Victor So, Jian Xiao, Christ Investment Service Inc., CIS Service Inc., and South China Investment Inc. They are preparing a return of service for Pacific Best Group Ltd. a.k.a. Pacific Best Company Ltd. The only remaining unserved defendants are Theresa Wong and James Yu. (See Declaration of Stephen Wu Supporting Administrative Motion for Leave to Issue Subpoenas and Motion for Extension of Time to Serve Complaint ¶¶ 2-14 [e i f r Wu el ao") hr n t " D c r i ] e ae a tn . As discussed in more detail in the Wu Declaration, many of the Defendants in this action have attempted to evade service of process. Theresa Wong has left the country on multiple occasions since her husband, Mr. Tse, was served. Plaintiffs believe she is still out of the country. (Wu Declaration ¶¶ 3-4, 8-11.) MoevrMrY s pe apa n aD f dn ' fcs n Pa tfhv be r e o , . u t pd per g t e nat of e ad ln f ae en o i e s i i is unable to find his home address. Plaintiffs believe that he works at the California Department of Mo r eie ( MV ) ut D t Vh l " o c s D " bth MViualt poi h hm ades i ot e s nb o rv e i o e dr wt u a e d s s h subpoena. (Wu Declaration ¶ 12.) To date, none of the Defendants has entered an appearance in this case, except for a letter from Defendant Molly Lau seeking a stay, which was granted. (Wu Declaration ¶ 15.) Therefore, Plaintiffs have been unable to meet and confer with Defendants about discovery or any other matters.

-2ADMINISTRATIVE MOTION FOR LEAVE TO ISSUE SUBPOENAS AND MOTION FOR EXTENSION OF TIME TO SERVE COMPLAINT Case No.: C-07-04946 JSW

Case 3:07-cv-04946-JSW

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II.

NEED FOR DISCOVERY CONCERNING THERESA WONG AND JAMES YU As set forth above, Plaintiffs have not been able to find the whereabouts of James Yu.

Plaintiffs know that he works at a DMV office, but the DMV will not release his home address without a subpoena. Plaintiffs seek to serve the DMV with a subpoena seeking the address and other contact information for James Yu. Plaintiffs believe a subpoena is necessary to find James Yu so that he can be served with a copy of the Summons and Complaint. N nt l sFdR CvP 2() ) rv e,A party may not seek discovery from oe e s e. . i .6d( poi s" he, . 1 d any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. "Because none of the Defendants has entered an appearance to defend this case, Plaintiffs have been unable to confer with Defendants as required by Rule 26(f). Plaintiffs, therefore, seek leave of the Court to issue subpoenas and otherwise conduct discovery to aid in locating the remaining unserved Defendants Ms. Wong and Mr. Yu, such as by serving a subpoena on the DMV to discover contact information for James Yu. Moreover, other discovery may be necessary to assist Plaintiffs in discovering the whereabouts of Theresa Wong and James Yu in order to complete service of process on them both. Thus, Plaintiffs seek an order permitting them to conduct discovery from any third parties concerning the whereabouts of Theresa Wong and James Yu and other facts reasonably necessary in aid of completing service of process on them. Pursuant to Fed. R. Civ. P. 26(d)(1), the Court has the authority to control the timing and sequence of discovery.

III.

NEED FOR EXTENSION OF TIME Under Fed. R. Civ. P. 4(m), Plaintiffs have 120 days to complete service of process on

each defendant if they are to avoid dismissal without prejudice as to unserved defendants. 120 days from September 24, 2007, the date Plaintiffs filed their Complaint, is January 22, 2008. Under Fed. R. i P 6b() )hw vr" ]e a at a o m sb dn wt n Cv . () ( ,o ee [ hn n cm y r ut e oe i i a . 1A ,w h specified time, the court may, for good cause, extend the time: with or without motion or notice -3ADMINISTRATIVE MOTION FOR LEAVE TO ISSUE SUBPOENAS AND MOTION FOR EXTENSION OF TIME TO SERVE COMPLAINT Case No.: C-07-04946 JSW

Case 3:07-cv-04946-JSW

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if the court acts, or if a request is made, before the original time or its extensio ep e. I n xi s n r " addition, Local Rule 6-3 permits parties to move the Court to seek to enlarge or shorten time. GvnT e s Wogs oe nt vl n t d f u yi f d gcn c i om t n i e hr a n' fr g r e ad h ii l n i i ot tn r ao e i a e fc t nn a f i concerning James Yu, Plaintiffs seek an extension of time from January 22, 2008 until March 31, 2008 (a little over sixty days) to complete service of process on Ms. Wong and Mr. Yu. Plaintiffs are unable to obtain a stipulation to the time change, because they have been unsuccessful to date in serving Ms. Wong and Mr. Yu, and none of the served Defendants has entered an appearance in this case. Plaintiffs will be prejudiced if an extension is not granted because they will be unable to pr e w o t pi i li D f dn 'r dl toe ncr nyft e trading scheme, us to fh r c a n e nat f uu n fr g ur c u r u e nps e s a e i e us Ms. Wong and Mr. Yu, if they are dismissed due in part to their efforts to evade service of process. Accordingly, Plaintiffs should be granted additional time to serve Ms. Wong and find MrY 'w e aot . us hr bu . e s Plaintiffs have asked for, and have been granted, no previous extensions of time in which to complete service of process on any Defendants. Plaintiffs do not believe that an additional extension until March 31, 2008 will affect the schedule of this case. The Court has authority under Fed. R. Civ. P. 6(b) and Local Rule 6-3 to extend the time in which Plaintiffs must serve Ms. Wong and Mr. Yu.

IV.

CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court (1) grant Plaintiffs

leave to issue subpoenas in this case to help them to determine the whereabouts of Theresa Wong // // // // // -4ADMINISTRATIVE MOTION FOR LEAVE TO ISSUE SUBPOENAS AND MOTION FOR EXTENSION OF TIME TO SERVE COMPLAINT Case No.: C-07-04946 JSW

Case 3:07-cv-04946-JSW

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and James Yu and (2) grant an extension of time until March 31, 2008 to complete service of process on defendants Theresa Wong and James Yu. Respectfully Submitted, COOKE, KOBRICK, & WU LLP Dated: January 10, 2008 /s/ By: STEPHEN S. WU Attorneys for Plaintiffs

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