govinfo:USCOURTS-txed-4_26-cv-00389-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
SHERMAN DIVISION 
 
ANTHONY JOHN GREER, JR., et al. 
 
v. 
 
DALLAS IVF1, PLLC, et al. 
§ 
§ 
§ 
§ 
§ 
 
 
 
 NO. 4:26-CV-00389-SDJ-BD 
 
 
MEMORDANDUM OPINION AND ORDER 
Anthony and Allison Greer sued Dallas IVF1, PLLC , and Dallas IVF Surgery Center, LLC 
(“Dallas IVF”) ; Dara Haveman, M.D.; Baylor Scott & White Health; Baylor University Medical 
Center; William Pringle, a Baylor Scott & White security guard; and two unknown defendants. 
Dkt. 6. Their claims arise from infertility treatment they received from Dallas IVF, a medical 
provider with an office on Baylor University’s property. Dkts. 6, 15 at 6–7. They allege that, in the 
course of in vitro fertilization treatment, the defendants negligently thawed a frozen embryo, 
refused to provide the Greers with medical records, and banned the Greers from entering their 
property. The Greers moved for leave to conduct expedited discovery to secure their medical 
records and identify the unknown defendants. Dkt. 5. The motion will be denied. 
DISCUSSION 
I. Good-Cause Standard 
Unless the court orders otherwise, Federal Rule of Civil Procedure 26(d)(1) prohibits litigants 
from seeking discovery from any source before the parties have conferred as required by Rule 26(f). 
The rule does not state how courts should decide whether to permit discovery before the parties 
confer, but courts have taken two approaches. St. Louis Grp., Inc. v. Metals & Additives Corp., Inc., 
275 F.R.D. 236, 239 (S.D. Tex. 2011). 
A minority of courts apply a “preliminary- injunction-style analysis” that requires the litigant 
to show a risk of irreparable injury, a likelihood of success on the merits, a connection between the 
irreparable injury and the discovery sought, and evidence that the injury to the party seeking 
discovery is likely to be greater than to the party producing it. Id. (citing Notaro v. Koch, 95 F.R.D. PageID #: 
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403 (S.D.N.Y. 1982)). But some courts have criticized that approach. Expedited discovery is often 
sought to obtain facts necessary to show entitlement to a preliminary injunction. El Pollo Loco, S.A. 
de C.V. v. El Pollo Loco, Inc., 344 F. Supp. 2d 986, 991 (S.D. Tex. 2004) (citing 8 Charles A. Wright, 
Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2046.1 (2d ed.)). It does 
not make sense to require a litigant to show its entitlement to a preliminary injunction before it may 
seek discovery that would show its entitlement to a preliminary injunction. Merrill Lynch, Pierce, 
Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 624 (N.D. Ill. 2000). 
The majority of courts adopt a more lenient standard that requires the party seeking discovery 
to show “good cause.” St. Louis Grp. , 275 F.R.D. at 239. Although the Fifth Circuit has not overtly 
adopted either standard, it has signaled its approval of the good-cause standard. Doc. Ops., L.L.C. 
v. AOS Legal Techs., Inc. , No. 20-20388, 2021 WL 3729333, at *4 (Aug. 23, 2021) (reversing an 
order authorizing expedited discovery because good cause had not been shown and explaining that, 
“[i]n the Southern District of Texas[,] . . . courts employ a good cause standard to determine when 
to exercise their authority to order expedited discovery”). And district courts in the Fifth Circuit , 
including this court, have embraced the good-cause standard. E.g., Strike 3 Holdings, LLC v. Doe , 
No. 4:22-cv-459-SDJ, 2025 WL 3651910, at *1 (E.D. Tex. Dec. 17, 2025) ; ELargo Holdings, LLC 
v. Doe-68.105.146.38, 318 F.R.D. 58, 61 & n.21 (M.D. La. 2016); St. Louis Grp., 275 F.R.D. at 240. 
II. The Greers’ Motion 
The Greers’ motion seeks expedited discovery on two subjects: their medical records and the 
identities of the unknown defendants. They are entitled to expedited discovery on neither. 
A. Medical records 
In determining whether good cause exists, courts must examine the record as a whole and the 
surrounding circumstances to determine whether “the need for expedited discovery outweighs the 
prejudice to the responding party.” ELargo Holdings, 318 F.R.D. at 61 (quoting BKGTH Prods., 
LLC v. Does 1 –20, 2013 WL 5507297, at *5 (E.D. La. Sept. 30, 2013) ). Courts usually consider 
factors such as whether a motion for a preliminary injunction is pending, the breadth and purpose 
of the discovery requests, the burden on the producing party of responding to the request, and how PageID #: 
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far in advance of the typical discovery process the request was made. United States v. Abbott, 
No. 1:23-cv-853-DAE, 2023 WL 6532633, at *2 (W.D. Tex. Aug. 3, 2023). And although expedited 
discovery is not the norm, courts have allowed it when the party seeking discovery can show that 
it would suffer irreparable harm absent discovery or denying discovery would substantially impact 
the case’s ability to progress on the court’s docket. St. Louis Grp., 275 F.R.D. at 240–41. 
The Greers have not shown good cause to seek expedited discovery of their medical records. 
Several of their claims arise in part from the defendants’ alleged failure to timely produce various 
medical records. See Dkt. 6 at 34–37, 41–42. And the production of those records is one of the types 
of relief the Greers hope to obtain if they ultimately prevail. Id. at 56. So an order that the 
defendants produce those records now would fast -forward to the end of th e case and grant the 
Greers part of their requested ultimate relief before they have shown entitlement to it. 
True, the Greers are likely to obtain some or all of those records during discovery anyway. See Fed. 
R. Civ. P. 34 (permitting parties to request documents from opposing parties). But rather than 
militate in the Greers’ favor, that rule weighs against them here because they have not shown a 
need to discover the records earlier. The motion states that the records are necessary for the Greers 
to continue infertility treatment. Dkt. 5 at 1 . But the Greers have been receiving infertility 
treatment since August 2024, if not earlier. See Dkt. 6 at 39 (alleging that the defendants decided 
to terminate their physician –patient relationship with the Greers on or about August 19, 2024). 
They do not explain why the short amount of time between now and the parties’ Rule 26( f) 
conference would prejudice them. And although t hey also argue that access to their medical 
records is necessary to effectively prosecute their case , Dkt. 5 at 3, that is what discovery during 
the ordinary course is for: obtaining the information necessary to prove the merits of a claim. It is 
not cause for expedited discovery. 
B. The identities of unknown defendants 
Some courts have permitted plaintiffs to engage in expedited discovery if necessary to identify 
unknown defendants. Yogaratnam v. Doe , No. 2:24-cv-393, 2024 WL 4838925, at *5 –7 (E.D. La. PageID #: 
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Nov. 20, 2024); ELargo Holdings, 318 F.R.D at 64. They have applied a test developed in the Ninth 
Circuit that requires the party seeking discovery to show four elements: (1) that it is not clear that 
discovery would not uncover the identities of the unknown defendants, (2) that the complaint 
would not be dismissed on other grounds, (3) that the unknown defendants are identified with 
sufficient specificity for the court to be confident that they are real people subject to its jurisdiction, 
and (4) that the party seeking discovery has taken steps to identify the unknown defendants 
without discovery. ELargo Holdings, 318 F.R.D at 62–63 (citing Gillespie v. Civiletti, 629 F.2d 637, 
642 (9th Cir. 1980) ); Voltage Pictures, LLC v. Doe –50.141.97.4, No. 3:14-cv-1872–AC, 2015 WL 
1579533, at *4 (D. Or. Apr. 9, 2015)); see Williams v. Bryan of Ladera, No. 4:22-cv-00057-SDJ-BD, 
2024 WL 5098506, at *2 (E.D. Tex. Nov. 20, 2024); Yogaratnam, 2024 WL 4838925, at *5–6. The 
court will apply that test, which is a reasonable way of assessing good cause, here. 
The first and third elements are satisfied. The complaint identifies the two unknown parties as 
an “Embryology Technician . . . employed by or acting on behalf of Dallas IVF who participated in 
the handling, identification, and thawing of [the Greers’] embryos” and a “Nurse . . . employed by 
or acting on behalf of Dallas IVF who participated in [the Greers’] treatment and consent process.” 
Dkt. 6 at 4 (boldface removed). Although the complaint does not specify which defendants engaged 
in which conduct, it d oes allege that the unidentified defendants were involved in the negligent 
thawing of an embryo meant for the Greers’ treatment. That is enough information for the court 
to be confident that those defendants exist and that Dallas IVF would be capable of identifying 
them. Further, because those defendants are employed by Dallas IVF in Texas, they are likely to 
be citizens and residents of Texas subject to personal jurisdiction in this State. 
The fourth element is also satisfied. The complaint explains that the Greers attempted to 
identify the unknown defendants by petitioning a state court for pre -suit discovery under Texas 
Rule of Civil Procedure 202. Dkt. 6 at 6. 
But the Greers do not satisfy the second element. Each of the defendants has filed a motion to 
dismiss, Dkts. 15, 16, and those motions are likely to be granted. PageID #: 
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The Greers are pursuing their federal under 42 U.S.C. § 1983. The rest of their claims sound 
in state law. Generally, § 1983 applies only to state actors. Davis v. United States Marshals Serv. , 
849 F. App’x 80, 86 (5th Cir. 2021) . Each defendant has moved to dismiss on the basis that he , 
she, or it is not a state actor. Dkts. 15 at 8–11, 16 at 7–9, 17 at 11–12. The Greers seek to overcome 
that obstacle by alleging that the medical-provider defendants acted through another defendant, 
William Pringle, whom the Greers refer to as “Officer Pringle.” Dkt. 6 at 23–30. A private party 
may be liable under § 1983 if its conduct is “ fairly attributable to the government. ” Gordon v. 
Neugebauer, 57 F. Supp. 3d 766, 774 (N.D. Tex. 2014) . But even assuming that acting through a 
police officer would satisfy that test, it would not be satisfied here. The Greers identify Pringle as 
“ a law-enforcement officer associated with Baylor Scott & White Health,” and a part of “ Baylor-
affiliated law enforcement.” Dkt. 6 at 27. Baylor is not a government entity, and the Greers do not 
allege that Pringle is employed by any government entity. In fact, he is a private security guard. 
Dkt. 15 at 10 n.1. A private actor does not expose itself to § 1983 liability by acting through another 
private actor. 
The court’s jurisdiction is based only on federal- question jurisdiction and supplemental 
jurisdiction. Dkt. 6 at 2. Exercising its supplemental jurisdiction , the court may hear state -law 
claims that arise from a “common nucleus of operative fact” as the claims over which it has original 
jurisdiction. United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 725 (1966). But a district court 
“ may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has 
dismissed all claims over which it has original jurisdiction .” 28 U.S.C. § 1367(c)(3). It usually 
should. Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 351 (1988) (stating that dismissal of all the 
federal claims in a case is “a powerful reason to choose not to continue to exercise jurisdiction ” 
over pendent state-law claims). 
Because none of the defendants is a state actor, the Greers’ § 1983 claim s are likely to be 
dismissed for failure to state a claim. And because those claims are likely to be dismissed, the court 
is likely to decline to exercise supplemental jurisdiction over the Greers’ state -law claims. So the 
Greers are not entitled to expedited discovery. PageID #: 
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CONCLUSION 
It is ORDERED that the motion for expedited discovery, Dkt. 5, is DENIED. PageID #: 
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