Natural Thoughts, Incorporated v. Performance Touch, LLC et al

Filing 85

ORDER Denying Motion to Compel Continued Depositions Without Prejudice [ECF No. 65 ]. Signed by Magistrate Judge Linda Lopez on 5/8/2019. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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NATURAL THOUGHTS, INC.,

Case No.: 17cv2148-BEN-LL
Plaintiff,

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v.

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PERFORMANCE TOUCH, LLC; THE
HYGENIC CORPORATION;
PERFORMANCE HEALTH HOLDINGS
CORPORATION; and DOES 2-10,

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ORDER DENYING MOTION TO
COMPEL CONTINUED
DEPOSITIONS WITHOUT
PREJUDICE

Defendants.

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[ECF No. 65]

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On April 19, 2019, Plaintiff Natural Thoughts, Inc. filed a “Motion to Compel

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Continued Depositions” [ECF No. 65 (“Mot.”)]. Plaintiff seeks to re-open and continue the

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March 14 and March 15, 2019 depositions of Defendants’ former employees and third

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party witnesses, Amy Moneypenny and Timothy Dunphy. See Mot. Specifically, Plaintiff

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requests that the Court issue an Order requiring that the depositions of Ms. Moneypenney

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and Mr. Dunphy be “completed.” Id. at 2.

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Rule 45(d)(2)(B)(i) requires motions to compel compliance with Rule 45 subpoenas

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be brought in the court where compliance is required. Here, Ms. Moneypenny was

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subpoenaed on February 27, 2019. Mot., Ex. 3. Mr. Dunphy was subpoenaed on December

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21, 2018. Id., Ex. 1. Both subpoenas identify the location of compliance to be Cleveland,
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17cv2148-BEN-LL

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Ohio located in the Northern District of Ohio. Id., Exs. 1 and 2. Under Rule 45(d)(3), “the

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proper motion in objecting to a non-party deposition is a motion to quash, filed by the non-

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party, in ‘“the court for the district where compliance is required[.]’” See Int'l Game Tech.

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v. Ill. Nat'l Ins. Co., 2017 U.S. Dist. LEXIS 189753, at *21 (D. Nev. Nov. 16, 2017)

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(quoting Fed. R. Civ. P. 45(d)(3)). The court where compliance is required may then

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transfer a motion to quash to the issuing court if the person(s) subject to the subpoena

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consent or if the court finds exceptional circumstances. Fed. R. Civ. P. 45(f).

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Here, it is not immediately clear how the Court has jurisdiction to compel Ms.

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Moneypenney and Mr. Dunphy’s attendance at a second deposition in Ohio. Separately,

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Defendant has not stated why it has standing to object to Ms. Moneypenny and Mr.

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Dunphy’s continued depositions—given that both these witnesses are non-parties. There is

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no indication Ms. Moneypenny and Mr. Dunphy have consented to the Court’s jurisdiction.

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There is also no indication a judge in the Northern District of Ohio would transfer this

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dispute to this Court under Rule 45(f). When considering transfer, a court’s “prime concern

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should be avoiding burdens on local nonparties subject to subpoenas, and it should not be

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assumed that the issuing court is in a superior position to resolve subpoena-related

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motions.” Fed. R. Civ. P. 45 (Advisory Committee Notes – 2013 Amendment).

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For the above reasons, Plaintiff’s Motion to Compel is DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.

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Dated: May 8, 2019

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17cv2148-BEN-LL