Terry et al v. Register Tapes Unlimited, Inc. et al

Filing 177

ORDER signed by Magistrate Judge Allison Claire on 6/5/2020 DENYING 170 motion to compel compliance with a third-party subpoena. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT TERRY, et al.,

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No. 2:16-cv-0806-WBS-AC

Plaintiffs,
v.

ORDER

REGISTER TAPES UNLIMITED, INC., a
Texas corporation, et al.,
Defendants.

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This matter is before the court on defendant Register Tapes Unlimited (“RTUI”) motion to

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compel responses to a third-party subpoena issued to former plaintiff Crest Corporation. ECF

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No. 170. Plaintiff Robert Terry submitted a response, ECF No. 172, and Crest Corporation did

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not submit any opposition. RTUI submitted a reply and supplemental statement. ECF Nos. 174,

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175. Having reviewed the arguments, the undersigned DENIES the motion as having been

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improperly brought in this court.

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I.

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RELEVANT FACTUAL AND PROCEDURAL HISTORY

This action was removed from California State Court on the basis of diversity and federal

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question jurisdiction on April 19, 2016. ECF No. 1. On May 16, 2017, Terry filed a Second

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Amended Complaint (“SAC”). ECF No. 36. The SAC is the operative complaint in this matter.

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Crest Corporation is a former co-plaintiff in this case; it was dismissed from this action no later
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than March 3, 2020. ECF No. 156 at 15, n.2. Crest Corporation is a Nevada Corporation and the

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subpoena seeks compliance in Las Vegas, Nevada. ECF No. 172-1 at 5.

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Defendant’s motion to compel compliance with a non-party subpoena was filed on May

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19, 2020. ECF No. 170. Accompanying the motion, defendant submitted a declaration with

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attached e-mails showing that on April 28, 2020, plaintiff’s counsel agreed to accept service of

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the subpoena on behalf of Crest Corporation, even though Crest had already been dismissed from

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the action. On May 6, 2020, six days before Crest’s responses were due, plaintiff’s counsel

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informed RTUI that they no longer represented Crest with respect to the third-party subpoena.

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ECF No. 170-1. RTUI declined to extend the response deadline for Crest in order to allow it to

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find new counsel. ECF No. 172-1 at 34.

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II. ANALYSIS

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Federal Rule of Civil Procedure 45 allows a party to a lawsuit to serve a subpoena that

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commands a non-party to “produce documents, electronically stored information, or tangible

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things ...” Fed. R. Civ. P. 45(a)(1)(C). A court must modify or quash such a subpoena that fails

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to allow a reasonable time to comply, requires a person to travel more than 100 miles (except for

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trial within the state), requires disclosure of privileged or other protected materials, or subjects a

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person to undue burden. See Fed. R. Civ. P. 45(d)(3)(A) (i-iv). The Rule itself contemplates a

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motion to compel, stating that “[a]t any time, on notice to the commanded person, the serving

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party may move the court for the district where compliance is required for an order compelling

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production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i) (emphasis added).

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On the face of the subpoena at issue, compliance is required in Nevada; the motion to

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compel should therefore been brought in the United States District Court for the District of

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Nevada. Defendant argues that Crest has not previously objected to appearing in this court and

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thus waived this defense, and Crest does not object now, because only Terry has replied on

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Crest’s behalf. ECF No. 174 at 2. The undersigned disagrees that Crest has waived any objection

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by previously participating in this case; RTUI cites no case law to support the proposition that

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Crest’s previous actions effect a waiver of the venue provision of Fed. R. Civ. P. 45(d)(2)(B)(i).

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RTUI is, of course, correct that Terry’s objection is not Crest’s objection, and that Crest has

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indeed not responded at all to the motion here.

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RTUI cites no law supporting the proposition that the court cannot independently enforce

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this provision of the Federal Rules of Civil Procedure, or that the venue provision of Fed. R. Civ.

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P. 45(d)(2)(B)(i) is waivable. Instead, RTUI points to the Advisory Committee Notes from 2013,

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without quoting them. ECF No. 174 at 2-3. Those notes state in relevant part that the 2013

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amendments to the Rule “introduce authority in new Rule 45(f) for the court where compliance is

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required to transfer a subpoena-related motion to the court where the action is pending on consent

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of the person subject to the subpoena or in exceptional circumstances.” RTUI asks this court to

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find the step of bringing this motion in the proper venue unnecessary on the grounds that the

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District Court in Nevada would ultimately transfer the motion back to this court. The court

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declines RTUI’s invitation to take this shortcut and usurp a decision properly belonging in

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another district The Federal Rules require this motion to have been brought in the district where

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compliance is required, and any decisions regarding transfer properly belong with that court.

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III. CONCLUSION
For the foregoing reasons, defendant’s motion to compel compliance with a third-party

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subpoena (ECF No. 170) is DENIED.

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DATED: June 5, 2020

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