Case 1:09-cv-06746 Document 22 Filed 11/17/09 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DREW W. PETERSON, )
)
Plaintiff, )
) Case No. 09 C 06746
v. )
)
Hon Judge Ronald A. Guzman
JPMORGAN CHASE BANK, N.A., )
)
Defendant. )

JPMORGAN CHASE BANK, N.A.'S RESPONSE MEMORANDUM IN OPPOSITION

TO PLAINTIFF'S MOTION TO EXPEDITE AND ADVANCE ON DOCKET

Defendant JPMorgan Chase Bank, N.A. ("Chase"), by its counsel, hereby submits its

response and opposition to Plaintiff Drew Peterson's motion to expedite and advance on docket.

INTRODUCTION

Peterson moves to expedite discovery in this case for reasons that contradict the very

basis of his complaint. In his complaint, Peterson asserts claims under the Truth in Lending Act,

15 U.S.C. § 1601, et seq. ("TILA"), and various state law theories. TILA and its implementing

Regulation Z permit a creditor to prohibit additional extensions of credit from a home equity line

of credit when, among other reasons, "the creditor has reason to believe that the consumer will

be unable to comply with the repayment requirements of the account due to a material change in

the consumer's financial circumstances." 15 U.S.C. § 1647(c)(2)(C); see also 12 C.F.R.

§ 226.5b(f)(3)(vi)(B). On the one hand, in his complaint, Peterson argues Chase improperly

suspended his home equity line of credit, even though his income has purportedly increased, not

decreased, since the time Chase first opened his line of credit. On the other hand, in his motion

to expedite, Peterson urges the Court to expedite discovery, because "Plaintiff desperately needs

immediate access to his HELOC to obtain money to defend himself." (PI. Memo., p. 5.) In other
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words, Peterson admittedly faces enormous litigation expenses in connection with his murder

trial, yet claims that there has not been a material change in his financial situation. This blatant

contradiction aside, under the proper standard applied in cases where the plaintiff does not seek a

preliminary injunction, Peterson has failed to establish that expedited discovery is warranted. 1

LEGAL STANDARD

Rule 26(d) provides that "a party may not seek discovery from 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." Fed. R Civ. P. 26(d). Here, the parties have not had a 26(f) conference. As such,

Peterson may not commence discovery without Chase's consent or an order from this Court.

While there is no Seventh Circuit case addressing the standard for expediting discovery,

courts have applied one of two standards (or a combination thereof), depending on the context in

which expedited discovery is sought. In determining whether expedited discovery is appropriate

in cases that do not involve a motion for preliminary injunction - as here - courts, including

those in the Seventh Circuit, have typically applied the following factors (the Notaro factors):

(1) irreparable injury, (2) some probability of success on the merits, (3) some connection

between the expedited discovery and the avoidance of the irreparable injury, and (4) some

evidence that the injury that will result without expedited discovery looms greater than the injury

that the defendant will suffer if the expedited relief is granted. See Notaro v. Koch, 95 F.RD.

403, 405 (D.C.N.Y. 1982); Edgenet, Inc. v. Home Depot US.A., Inc., - F.RD. -, 2009 WL

1 In addition to his efforts to get Chase to pay his mounting legal bills, Peterson (or more

accurately, his attorney) also recently publicly announced Peterson's intention to auction his
home to Fox News to raise money for his legal defense. See Michael Sneed, "Peterson's House
Going to Auction Block?," Chicago Sun-Times, Nov. 11, 2009, available at
http://www.suntimes.com/news/sneedI1876990.CST-NWS-SNEED11.article (last visited
November 17, 2009), attached as Exhibit A.

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2970494, at *1 (E.D. Wis. Sept. 16,2009) (applying the Notaro test "in cases in which a party

claims that without expedited discovery and the resulting earlier trial they would suffer

irreparable damage") (internal quotations omitted); Centrifugal Acquisition Corp., Inc. v. Moon,

No. 09-C-327, 2009 WL 1249294, at *1 (E.D. Wis. May 6,2009) (applying the Notaro factors

where there is no pending preliminary injunction motion).

Other courts have applied a less-stringent "good cause" or "reasonableness" standard

based on need and fairness, typically where the movant seeks to expedite discovery for a pending

preliminary injunction motion. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O'Connor,

194 F.RD. 618, 624 (N.D. Ill. 2000). However, those cases are expedited by the very nature of

the proceeding (e.g., discovery for a pending preliminary injunction motion or discovery

expedited to meet looming statute of limitations deadline). For example, the court in Merrill

Lynch declined to apply the Notaro factors, finding it inappropriate to use factors so similar to

preliminary injunction analysis factors where the plaintiff sought expedited discovery in order to

prepare for a preliminary injunction hearing. Id at 624. However, the Merrill Lynch court did

acknowledge that the Notaro factors could be appropriate in considering a motion to expedite

discovery in other circumstances (e.g. where the plaintiff seeks expedited discovery in lieu of a

preliminary injunction). Id.; see also Vance v. Rumsfeld, No. 06 C 6964, 2007 WL 4557812

(N.D. Ill. Dec. 21, 2007) (granting expedited discovery under a "reasonableness" standard to

identify unknown defendants before the looming statute of limitations deadline); Lamar v.

Hammel, No. 08-02-MJR-CJP, 2008 WL 370697, at *3 (S.D. Ill. Feb. 11,2008) (same).

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ARGUMENT

As discussed above, other than when discovery is sought for a preliminary injunction

hearing, district courts in the Seventh Circuit apply the Notaro factors in determining whether

expedited discovery is appropriate. Applying these factors here, Peterson fails to establish that

expedited discovery is appropriate in this case. First, Peterson does not establish a likelihood of

success on the merits. "'Probability of success' implies that the moving party [ ] must have a very

clear and strong case." Gucci Am., Inc. v. Daffy's, Inc., No.Civ.AOO-4463, 2000 WL 1720738,

at *7 (D. N.J. Nov. 14, 2000) (internal quotations and citation omitted). Peterson claims Chase

improperly suspended his home equity line of credit, even though his income increased since

Chase opened his credit line. (CompI., paras. 16-19; PI. Memo., pp. 3-4.) He suggests that a

person's financial circumstance is based simply on income. However, income is only part of the

equation. Peterson would be hard-pressed to find any statement, report or balance sheet that

ignores liabilities in determining financial conditions. Peterson faces a murder trial and

enormous, possibly insurmountable legal bills. He has publicly announced his intent to auction

his home to help finance his defense. (Exhibit A) An allegedly steady income does not change

the fact that Peterson's financial situation has changed drastically since being charged with

murder. Basing his entire case on an incomplete, nonsensical analysis of his financial condition,

Peterson has not and cannot establish a probability of success on the merits.

Peterson points to affidavits from Chase employees and argues that those affidavits

establish Chase suspended his home equity line of credit in violation of TIL A (PI. Memo., p. 3.)

On the contrary, the affidavits Peterson relies on (Exhibits D-G attached to his complaint), show

Chase consulted and reviewed Regulation Z and the Federal Reserve official commentary to that

regulation and "determined that there had been a material change in [Peterson's] financial

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condition. II (E.g., CompI., Ex. D., para. 3.) "Due to the circumstances of [Peterson's]

incarceration [Chase] believed that Mr. Peterson would be unable to pay his account if we

allowed it to be substantially drawn down. II (Jd.)

Second, Peterson has not demonstrated an irreparable injury, a connection between the

expedited discovery and the avoidance of such injury, or that the balance of harms weighs in his

favor. Notaro, 95 F.RD. at 405 (expedited discovery may be warranted where party establishes

irreparable injury and some connection between the expedited discovery and the avoidance of

the irreparable injury). As with his unsupported claim of financial stability, Peterson merely

concludes that he will be irreparably injured without the requested relief. (PI. Memo., p. 10

("Plaintiff continues to suffer ... irreparable injury in the form of continuing confinement and

inability to adequately provide for his defense. ").) He has not offered any specific evidence to

demonstrate that the home equity line of credit is sufficient to lift him out of an otherwise

irreparable situation. Certainly, some money is better than none. However, without knowing the

amount of his current and future debts, this Court cannot determine whether the line of credit

will make a material difference in his situation. For all this Court knows, his debts could be so

large that a couple hundred thousand dollars will have no real impact. In any case, Peterson has

not met his burden of demonstrating that expedited discovery is warranted.

Finally, the cases Peterson cites are inapposite. These cases address expediting trial

and/or discovery in the context of preliminary injunctions and mostly involve intellectual

property infringement claims. For example, Peterson cites Lakedreams v. Taylor, 932 F.2d 1103

(5th Cir. 1991) for the proposition that certain circumstances call for an expedited trial on the

merits. However, Lakedreams involved a copyright infringement action in which the court

preliminarily enjoined the defendant from distributing shirts and other products containing an

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infringing design. The court noted that since the preliminary injunction may unjustifiably

restrain the defendant, an expedited trial on the merits is encouraged. Id at 1110. See also,

Allied Mktg. Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806 (5th Cir. 1989) (copyright

infringement action in which defendant was preliminarily enjoined). Here, Chase has not been

restrained by the Court, and Peterson does not seek a preliminary injunction. Thus, the cases

cited by Peterson in support of an expedited trial on the merits are inapplicable.

Peterson also cites Gucci America, Inc. v. Daffy's, Inc., No.Civ.A.00-4463, 2000 WL

1720738 (D. N.J. Nov. 14, 2000) and argues that the Court has "the authority and discretion to

order expedited discovery in the 'interests of justice.'" (PI. Memo., p. 9.) In Gucci, a trademark

infringement case, the court applied the Notaro factors and determined that expedited discovery

was inappropriate. Gucci Am., Inc., 2000 WL 1720738, at *7-10. Among other reasons, the

record as it stood at the time of the motion presented a close question. Id. at *8. The court

determined that although the weight of the evidence may have tipped in favor of the plaintiff, it

was not sufficient to create a substantial likelihood of ultimate success. Id at *7-8. Likewise,

Peterson has not presented sufficient evidence, namely, any indication of his current and future

debts, to demonstrate a likelihood of success on the merits.

The other cases on which Peterson relies likewise do not help his case: Regal Beloit

Corp. v. Drecoll, 955 F. Supp. 849 (N.D. Ill. 1996) (involving a preliminary injunction of former

officers' attempts to purchase a company plaintiff corporation had sought to acquire);

Philadelphia Newspapers, Inc. v. Gannett Satellite Information Network, Inc., No. CIY. A. 98-

CV-2782, 1998 WL 404820 (E.D. Pa. July 15, 1998) (denying plaintiffs motion for expedited

discovery for its preliminary injunction motion in a trademark infringement action); Ellsworth

Associates, Inc. v. Us., 917 F. Supp. 841, 844 (D.D.C. 1996) (holding that "[e]xpedited

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discovery is particularly appropriate when a plaintiff seeks injunctive relief, because of the

expedited nature of injunctive proceedings"); Crawford-El v. Britton, 523 U.S. 574 (1998)

(involving claim against a correctional official and cited by Peterson entirely out of context);

Pod-Ners, LLC v. Northern Feed & Bean, 204 F.RD. 675 (D. Colo. 2002) (involving claims for

"infringement, unfair competition, and tortious interference" and stating that "expedited

discovery may be appropriate in cases where the plaintiff seeks a preliminary injunction")."

CONCLUSION

Peterson fails to meet his burden of establishing that expedited discovery is appropriate

under the proper standard. Therefore, JPMorgan Chase Bank, N.A. respectfully requests that this

Court deny Peterson's motion to expedite and advance on docket.

Date: November 17, 2009 Respectfully submitted,

JPMORGAN CHASE BANK, N.A.

By: lsi LeAnn Pedersen Pope

One of its attorneys

LeAnn Pedersen Pope (6186058)

Michael G. Salemi (6279741)
Burke, Warren, MacKay & Serritella, P.C.
330 North Wabash Avenue, 22nd Floor
Chicago, Illinois 60611-3607
Telephone: (312) 840-7000
Facsimile: (312) 840-7900
Email: lpope@burkelaw.com
msalemi@burkelaw.com

2 Peterson also cites a number of military and habeas corpus cases, which are
inapplicable to this action.

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CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that on November 17, 2009, a true and correct

copy of the foregoing document was filed electronically using the Court's Electronic Case Filing

System. A Notice of Electronic Filing will be sent by electronic mail to all counsel of record by

operation of the Court's Electronic Filing System.

By: lsi LeAnn Pedersen Pope

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