914 F. 2d 257 - McNeil v. Thompson

Before KEITH and MILBURN, Circuit Judges; and THOMAS, Senior District Judge.*

This pro se Michigan plaintiff appeals the district court's order dismissing his petition to perpetuate testimony filed under Fed.R.Civ.P. 27(a). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. The panel unanimously agrees that oral argument is not necessary. Fed.R.App.P. 34(a).

Generally alleging that named individuals were involved in a conspiracy to deprive him of constitutional rights, Kent Arland McNeil sought an order from the district court allowing him to proceed with discovery prior to filing a civil rights and RICO-based claim.

Upon review, we conclude that the district court did not abuse its discretion by denying the petition and dismissing the matter. See Ash v. Cort, 512 F.2d 909, 912 (3rd Cir.1975). The party seeking authorization under Rule 27(a) must show that he is presently unable to bring his action and that without the perpetuation of the testimony a failure or delay of justice would occur. Fed.R.Civ.P. 27(a)(1) and (3); Shore v. Acands, Inc., 644 F.2d 386, 388 (5th Cir. Unit A 1981). He also must serve notice upon each person named in the petition as an expected adverse party stating that he is seeking the order described in the petition. Fed.R.Civ.P. 27(a)(2). McNeil did not show that he was entitled to proceed under the rule.

Moreover, because McNeil was not authorized to proceed under Rule 27(a), sanctions are not warranted against defendant for failing to answer interrogatories.

Accordingly, the district court's order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.