United States District Court, D. New Mexico
JOE H. LUCERO, Plaintiff,
HSBC Bank, N.A., Defendant.
ORDER DENYING MOTIONS FOR DISCOVERY
MATTER is before the Court on Plaintiff's Motions for
Discovery. Docs. 8, 15. Joe H. Lucero, Jr.
(“Plaintiff”) filed this matter in the Second
Judicial District Court, Bernalillo County, on January 28,
2019. Doc. 1-5. Thereafter, HSBC Bank USA
(“Defendant”) removed the case to this Court on
April 24, 2019, alleging diversity jurisdiction. Doc.
1. According to Plaintiff's Complaint, he seeks
“$150, 000.00 for [a] predatory loan which [he alleges]
constitutes fraud.” Doc. 1-5 at 6. More
specifically, he maintains that when his mortgage note was
transferred from Fidelity Mortgage to Defendant, Defendant
wrongfully added $3, 000 to the loan. Id. at 5.
Moreover, he contends that Defendant imposed a loan interest
rate of 8.49%, when the “going rate” was 5%.
Id. Defendant's Motion to Dismiss, in which
Defendant maintains that Plaintiff's Complaint should be
dismissed on the basis of res judicata and for
failure to state a claim, is currently pending before the
presiding judge in this case. See Doc. 4.
17, 2019, Plaintiff filed a Motion for Discovery in this
case. Doc. 8. Defendant responded on June 21, 2019.
Doc. 12. Then, on July 16, 2019, Plaintiff refiled
that same Motion for Discovery. Compare Doc. 8 with Doc.
15. Defendant, in turn, refiled its response to that
motion. See Doc. 18. Thus, while there are two
motions and two responses, the filings are simply
seeks “evidence and proof” from Defendant
showing: 1) why $3, 000 was added to his mortgage; 2) that
the $3, 000 from his old account with Associates Finance
Company was “paid in full”; 3) that his mortgage
interest was inflated to 8.49%; 4) where his extra $50.00 in
principal payments were applied for six years; 5) his payment
record for six years and more; 6) his amortization schedule
for six years and more; and (7) an explanation of the
“imposed/forced mortgage insurance.” Docs.
8; 15. In response, Defendant argues that
Plaintiff's Motions should be summarily denied because
Plaintiff failed to comply with
D.N.M.LR-Civ.7.1(a) or, alternatively, because the motions are
premature and unnecessary given the pending Motion to
Dismiss. Docs. 12; 18.
August 2, 2019, Plaintiff filed a reply to his twice-filed
Motion for Discovery, entitled “Response to Charles
Curran, to Dismiss Discovery.” Doc. 19.
Therein, he argues that his “Motion for Discovery
should be up-held [sic] by this Court, being how serious this
predatory loan affects the whole contract . . .”
Id. at 1. He concedes, however, that “[i]f
Charles Curran needs more time to get his discovery
ready, he should be granted more time.” Id.
(emphasis in original).
Defendant did not simply request additional time to
“get its discovery ready.” Rather, it opposed
Plaintiff's Motions procedurally - for his failure to
seek concurrence or to make his discovery requests using a
method provided for in Federal Rules of Civil Procedure - and
it also opposed them substantively - as premature and
unnecessary. Docs 12, 18. Even if the Court
declines to summarily deny Plaintiff's Motions under
D.N.M.LR-Civ.7.1 for want of a recitation of a good-faith
request for concurrence, it agrees that Plaintiff's
Motions are premature and that discovery is not warranted at
Rule of Civil Procedure 26(d)(1) provides that “[a]
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except . .
. when authorized by these rules, by stipulation, or by court
order.” Fed.R.Civ.P. 26(d)(1). Here, the Court has not
issued an initial scheduling order, the order in which will
set the deadline for the parties' Rule 26(f) conference,
nor has Defendant stipulated to the propounding of discovery
requests in advance of that conference. Moreover, the Court
has found good cause to extend the time for issuing a
scheduling order pursuant to Federal Rule of Civil Procedure
16(b), explaining that it will delay the issuance of its
initial scheduling order pending resolution of
Defendant's Motion to Dismiss and Plaintiff's Motion
for Default Judgment. See Doc. 23.
of these reasons, Plaintiff's Motions for Discovery are
not well-taken and will be denied. Absent a stipulation of
the parties, discovery shall not commence before entry of an
initial scheduling order and unless and until the parties
conduct a Rule 12(f) conference in this case.
IT IS HEREBY ORDERED that Plaintiffs Motions
for Discovery (Docs. 8 & 15) are
 This Local Rule provides that a
“Movant must determine whether a motion is opposed, and
a motion that omits recitation of a good-faith request for
concurrence may be summarily ...