Trendsettah USA, Inc. et al v. Swisher International, Inc.
Filing
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ORDER RE: MOTION FOR ORDER TO SHOW CAUSE AND MOTION TO TRANSFER OR DISMISS: The 2 MOTION That Third Parties Appear and Show Cause Why They Should Not Be Held in Civil Contempt for Failing to Appear for Deposition and/or for Failing to Produce Documents is denied. The subpoena served on Polk & Green Market is enforceable here - the court where compliance is required -- and thus may be transferred pursuant to Rule 45(f). But plaintiff's counsel's representation is not enough to establish Polk & Green's consent to transfer unless counsel is Polk & Green's attorney. Accordingly, by 1/19/2016, Plaintiff's counsel shall file a supplemental declaration stating that he is acting as the attorney for Polk & Green an d in that capacity avers that Polk & Green consents to transfer. In the alternative, Polk & Green must itself consent in writing to transfer pursuant to Rule 45(f). If no such consent is filed, the 2 Motion for Compliance and Contempt will be heard as to Polk & Green on 1/21/2016 at 11:00 a.m. Signed by Judge Jacqueline S. Corley on 1/14/2016. (afmS, COURT STAFF) (Filed on 1/14/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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TRENDSETTAH USA, INC., et al.,
Plaintiffs,
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United States District Court
Northern District of California
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Case No. 15-mc-80315-JSC
v.
SWISHER INTERNATIONAL, INC.,
Defendant.
ORDER RE: MOTION FOR ORDER TO
SHOW CAUSE AND MOTION TO
TRANSFER OR DISMISS
Re: Dkt. Nos. 2, 6
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This miscellaneous action pertains to an antitrust dispute now pending in the Central
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District of California. Plaintiffs Trendsettah USA, Inc. and Trend Settah, Inc. (together,
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“Plaintiff”) alleges that Defendant Swisher International, Inc. (“Defendant”) engaged in certain
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anticompetitive conduct, including disparaging Plaintiff’s competing band of cigarillos, a type of
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small cigar. Defendant filed this miscellaneous action to enforce three subpoenas issued to third
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parties who have knowledge of Defendant’s alleged anticompetitive conduct. (Dkt. No. 2.)
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Specifically, Defendant seeks an order to show cause why third parties SM Brothers, Inc.,
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Sandeep Mehat, Polk & Green Market, and Allmey Enterprises Inc. d/b/a Toby’s Vapes & More
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(collectively, the “Third Parties”) should not be held in civil contempt for failing to comply with
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the subpoenas and an order compelling their compliance. (Id.)
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The Third Parties neither responded to the subpoenas nor to Defendant’s motion. Instead,
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now pending before the Court is Plaintiff’s motion to transfer this enforcement action to the
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Central District of California or, in the alternative, to dismiss the action altogether. (Dkt. No. 6.)
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Two of the subpoenas were issued to Third Parties located in Chowchilla, California, which is in
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the Eastern District of California, while one was served here in San Francisco. (Dkt. No. 3 ¶ 10 &
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Ex. D; id. ¶ 13 & Ex. G.)
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Federal Rule of Civil Procedure 45 states that “[a]t any time, on notice to the commanded
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person, the serving party may move the court for the district where compliance is required for an
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order compelling production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). Further, the “court
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where compliance is required . . . may hold in contempt a person who, having been served, fails
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without adequate excuse to obey the subpoena or an order related to it.” Fed. R. Civ. P. 45(g).
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Thus, Defendant’s motion as to the two Third Parties located in the Eastern District of California
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was brought in the wrong court; the Northern District, as neither the issuing court nor the court
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where compliance is required, has no authority to order compliance or find these parties in
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contempt.
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Recognizing this error, Defendant asks the Court to transfer its motion to the Central
United States District Court
Northern District of California
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District of California pursuant to Rule 45(f). That Rule provides that “[w]hen the court where
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compliance is required did not issue the subpoena, it may transfer a motion under this rule to the
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issuing court if the person subject to the subpoena consents or if the court finds exceptional
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circumstances.” Fed. R. Civ. P. 45(f); see also Fed. R. Civ. P. 45(f) 2013 Advisory Committee
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Notes (“If the person subject to the subpoena consents to transfer, Rule 45(f) provides that the
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court where compliance is required may do so.”). Plaintiff represents that the subpoenaed Third
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Parties all consent to transfer of this miscellaneous action to the courtroom of the Honorable
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James Selna in the Southern Division of the Central District of California, where the underlying
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case is pending. (Dkt. No. 6 at 5.) Plaintiff’s counsel avers that he spoke with the Third Parties
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and explained the posture of the case, and that the Third Parties “advised [him] that they consent
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to having this issue transferred to the trial court in the Central District.” (Dkt. No. 6-1 ¶ 5.) And
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indeed, Defendant agrees that transfer to the Central District is appropriate provided that the Third
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Parties consent to the transfer in writing. (Dkt. No. 8 at 2.)
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But this Court has no authority to transfer Defendant’s motion as to the Third Parties
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located in the Eastern District of California. By its express terms, Rule 45(f) allows for transfer by
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“the court where compliance is required.” The Northern District of California is not such a court
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for the Eastern District Third Parties. “[W]hen subpoena-related motions are filed in the wrong
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court, Rule 45(f) does not provide a means for transferring those motions to the court that issued
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the subpoenas.” Agincourt Gaming, LLC v. Zynga, Inc., No. 2:14-cv-0708-RFB-NJK, 2014 WL
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4079555 *4 (D. Nev. Aug. 15, 2014).
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Defendant’s citation to Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990), is
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unavailing as Miller (and 28 U.S.C. § 1631) do not address the very specific language of Rule 45.
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Even if section 1631 applied, the Court does not find that it would be “in the interests of justice”
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to transfer Defendant’s motion to the Central District of California or the Eastern District of
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California. Rule 45 is designed to encourage parties to enforce subpoenas in districts that reduce
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the inconvenience to third parties as much as possible. See Fed. R. Civ. P. 45(f) 2013 Advisory
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Committee Notes (“To protect local nonparties, local resolution of disputes about subpoenas is
assured by the limitations of Rule 45(c) and the requirements in Rules 45(d) and (e) that motions
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United States District Court
Northern District of California
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be made in the court in which compliance is required under Rule 45(c).”). To simply transfer
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Defendant’s improperly filed motion would encourage parties to not take care to file motions in
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the proper courts, thus necessitating the third party to defend in a distant court, which is
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inconsistent with the Rules’ long-held emphasis on minimizing the discovery burden on third
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parties. See U.S. v. McGraw-Hill Cos., 302 F.R.D. 532, 534-35 (C.D. Cal. 2014) (collecting cases
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and discussing courts’ duty to shift third parties’ cost of compliance with subpoenas to ensure the
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third parties’ burden in responding is not significant); see also High Tech Med. Instrumentation,
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Inc. v. New Image Indus., Inc., 161 F.R.D. 86, 88 (N.D. Cal. 1995) (“Both the language of [the
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Federal Rules] and that of the Ninth Circuit . . . make clear that sanctions are appropriate if the
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subpoenaing party fails to take reasonable steps to avoid imposing an undue burden on a third
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party.”) (citing former Rule 45(c)(1), now Rule 45(d)(1)). Further, a transfer in these
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circumstances would vitiate Rule 45’s requirement of third party consent. The Eastern District
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Third Parties allegedly consent to transfer to the Central District only as an alternative to
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dismissal. Accordingly, Defendant’s motion for an order to show cause and for an order of
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compliance as to the Third Parties located in the Eastern District of California is DENIED.
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The subpoena served on Polk & Green Market is enforceable here—the court where
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compliance is required—and thus may be transferred pursuant to Rule 45(f). But Plaintiff’s
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counsel’s representation is not enough to establish Polk & Green’s consent to transfer unless
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counsel is Polk & Green’s attorney. Accordingly, by January 19, 2016, Plaintiff’s counsel shall
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file a supplemental declaration stating that he is acting as the attorney for Polk & Green and in that
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capacity avers that Polk & Green consents to transfer. In the alternative, Polk & Green must itself
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consent in writing to transfer pursuant to Rule 45(f). If no such consent is filed, the motion for
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compliance and contempt will be heard as to Polk & Green on January 21, 2016 at 11:00 a.m.
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(please note the changed time).
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IT IS SO ORDERED.
Dated: January 14, 2016
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
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United States District Court
Northern District of California
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