Viens et al v. Great American Insurance Group et al

Filing 58

RULING granting in part and denying in part 42 48 49 51 the Motions to Quash Non-Party Subpoenas (see attached). Signed by Judge Joan G. Margolis on 06/18/15. (Malone, A.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
-------------------------------------------------------x
:
JEFFREY J. VIENS ET AL.
:
:
v.
:
:
AMERICAN EMPIRE SURPLUS LINE INS. CO.:
-------------------------------------------------------x

3:14 CV 952 (JBA)

JUNE 18, 2015

RULING ON PENDING MOTIONS TO QUASH NON-PARTY SUBPOENAS
Plaintiffs Jeffrey J. Viens, Pamela J. Viens, Karen L. Wellikoff, Finney Lane Realty
Associates, and the Connecticut Fair Housing Center commenced this action on June 30,
2014 against defendant American Empire Surplus Lines Insurance Company (Dkt. #1),
followed by an Amended Complaint, filed October 21, 2014 (Dkt. #24), followed by a Second
Amended Complaint, filed January 9, 2015 (Dkt. #30), with class action allegations regarding
defendant's alleged refusal to issue or renew property insurance when a rental building had
tenants receiving Section 8 benefits.1 The Second Amended Complaint contains three counts:
discrimination based on lawful source of income, in violation of CONN. GEN. STAT. § 46a-63 et
seq. (Count One); discrimination based on race and national origin, in violation of CONN. GEN.
STAT. § 46a-63 et seq. (Count Two); and discrimination based on race and national origin
under the Fair Housing Act, in violation of 42 U.S.C. § 3601 et seq. (Count Three).
Defendant's Motion to Dismiss Second Amended Complaint, filed February 4, 2015 (Dkt.
#37), is presently pending before U.S. District Judge Janet Bond Arterton. (See also Dkts.
##38-39).
On March 18, 2015, defendant filed its Motion to Quash Non-Party Subpoenas and

1

Defendant Great American Insurance Group was dropped as a defendant in the amended
complaints.

brief and affidavit in support (Dkt. #42),2 as to which plaintiffs filed their brief in opposition
on April 8, 2015. (Dkt. #47).3 Fourteen days later, defendant filed its reply brief. (Dkt.
#52).
That same day, Motions to Quash Non-Party Subpoena[s] were filed by Wilcox &
Reynolds Insurance, LLC ["Wilcox"], by Malloy Insurance & Financial Services ["Malloy"], and
by Joseph Krar & Associates, Inc. ["Krar"](Dkts. ##48-49, 51), as to which plaintiffs filed a
consolidated brief in opposition on May 13, 2015. (Dkt. #56).
On June 5, 2015, Judge Arterton referred all four motions to this Magistrate Judge.
(Dkt. #57).
For the reasons stated below, the Motions to Quash Non-Party Subpoena[s](Dkts.
##42, 48, 49 and 51) are granted in part and denied in part to the extent set forth below.
I. DISCUSSION
The subpoena directed to Krar seeks eighteen categories of documents, while the
subpoenas directed to Wilcox and Malloy seek fourteen categories of documents. (Dkt. #42,
Brief at 3-4, 4 n.2 & Exhs. A-C). Defendant argues that the non-party subpoenas should be
quashed because: (1) the definition of "American Empire" is overly broad (Dkt. #42, Brief
at 5-7); (2) the definition of "Subsidized Housing" and "Subsidized Units" is overly broad (id.
2

The following six exhibits were attached to defendant's brief: copy of letter from plaintiffs'
counsel to Joseph Krar & Associates, dated February 27, 2015, with subpoena attached (Exh. A);
copy of letter from plaintiffs' counsel to Wilcox & Reynolds LLC, dated February 27, 2015, with
subpoena attached (Exh. B); copy of letter from plaintiffs' counsel to Malloy Insurance & Financial
Services, dated February 27, 2015, with subpoena attached (Exh. C); and copies of correspondence
between plaintiffs' counsel and defense counsel, dated February 27, March 9, and March 13, 2015
(Exhs. D-F).
3

The following three exhibits were attached: excerpts from the transcript of oral argument
before Judge Arterton on February 23, 2015 (Exh. 1); declaration of plaintiffs' counsel, with copies
of e-mails dated July 30, July 31, August 20, November 2, and November 5, 2013, and January 16
and February 12, 2014, and of Notice of Nonrenewal, dated January 16, 2014 attached (Exh. 2);
and copies of redlined versions of Attachment 1 to three subpoenas (Exh. 3).

2

at 7-8); (3) the subpoenas seek irrelevant documents (id. at 8-11); (4) the time period is
unlimited (id. at 11-12); and (5) the discovery sought is an "end-run" around the stay of
discovery (id. at 12-13).
In their brief in opposition, plaintiffs argue that: (1) defendant does not have standing
to challenge the non-party subpoenas (Dkt. #47, at 6-7); (2) defendant's objections are
unfounded and unsupported boilerplate objections (id. at 7-8); (3) plaintiffs have offered to
modify the definition of "American Empire" (id. at 9-12); (4) plaintiffs have offered to modify
the definition of "Subsidized Housing" and "Subsidized Units" (id. at 13); (5) defendant's
argument about irrelevancy is based on speculation and hyperbole (id. at 14-19); (6)
plaintiffs have proposed a temporal limitation to their requests that is reasonable and
grounded in evidence (id. at 20-22); and (7) plaintiffs have properly pursued non-party
discovery pursuant to Judge Arterton's order (id. at 23-24).
In its reply brief, defendant argues that: (1) the issue of standing is moot in light of
the non-parties' pending motions and the subpoenas are still an "end run around the stay"
of discovery (Dkt. #52, at 2-3); (2) plaintiffs' definition of "American Empire" is still too broad
(id. at 3-4); (3) plaintiffs' definition of "Subsidized Housing" and "Subsidized Units" is still too
broad (id. at 4); (4) plaintiffs' requests for discovery are irrelevant (id. at 4-6); and (5) the
time period is still too broad (id. at 6-7).
The Motions to Quash Non-Party Subpoena[s] filed by Wilcox, Malloy and Krar
incorporate by reference defendant's arguments. (Dkts. ##48-49, 51). In their brief in
opposition, plaintiffs argue that these motions are untimely (Dkt. #56, at 2-3), and then
incorporate by reference their prior arguments (id. at 3).
The Court will address the arguments in a different order than presented by counsel.

3

A. STAY OF DISCOVERY
As previously indicated, defendant argues that these three subpoenas are an "end
run around the stay" of discovery imposed by Judge Arterton. (Dkt. #42, Brief at 12-13; Dkt.
#52, at 2-3).

However, plaintiffs are correct, based upon the excerpts from the oral

argument before Judge Arterton on February 23, 2015, that she expressly permitted these
subpoenas. (Dkt. #47, at 23-24 & Exh. A).

At the end of the oral argument, plaintiffs'

counsel expressed his interest in commencing third party discovery (id., Exh. A, at 54-56),
to which defense counsel responded that she had no objection to plaintiffs' counsel
forwarding a letter to the third parties requesting essentially a "litigation hold" on their
documents, but then "holding off on compliance[.]" (Id. at 56-58). After plaintiffs' counsel
responded that he wanted those documents to be delivered (id. at 58-59), Judge Arterton
indicated that a "litigation hold" cannot be placed on non-parties, "[s]o it seems to me that
the subpoenas for documents that are related to this case and these claims should be
permitted, that the document gathering responsive to that should be undertaken, before
there's an inadvertent destruction which would handicap one side or another or both, or
neither[.]" (Id. at 59-60). Thereafter, counsel agreed to the time frame for filing these
pending motions. (Id. at 60-61).4

4

The Magistrate Judge agrees with defense counsel that the standing issue has been
rendered moot by the filing of similar motions by Wilcox, Malloy and Krar. (Dkt. #52, at 2-3).
The Magistrate Judge also will not address the timeliness issue, insofar as Wilcox, Malloy
and Krar filed their motions within two weeks of defendant having been advised of the standing
issue in plaintiffs' brief. (See Dkts. ##47-49, 51).

4

B. DEFINITIONS5
1. DEFINITION OF "AMERICAN EMPIRE"
This term is limited to include only American Empire's affiliates whose business
activities are related to the insurance of residential rental properties, and to its employees
and officers. (Dkt. #42, Brief at 5-7 & Exhs. A-E; Dkt. #47, at 9-12; Dkt. #52, at 3-4).
2. DEFINITION OF "SUBSIDIZED HOUSING" AND "SUBSIDIZED UNITS"
This term is limited to subsidized housing and/or subsidized units under the federal
Section 8 Housing Choice Voucher Program in Connecticut; other federal, state or local
governmental plans presently are irrelevant to this lawsuit. (Dkt. #42, Brief at 7-8 & Exhs.
A-C, F; Dkt. #47, at 13; Dkt. #52, at 4).
C. RELEVANT TIME PERIOD
The appropriate period is January 1, 2010 (shortly before plaintiffs Viens first
obtained their insurance policy with defendant in April 2010) through June 30, 2014 (shortly
after their insurance policy lapsed in April 2014). (Dkt. #42, Brief at 11-12 & Exhs. A-C, F;
Dkt. #47, at 20-22; Dkt. #52, at 6-7).
D. SPECIFIC REQUESTS FOR PRODUCTION
Again, these requests will be addressed in a different order than presented by the
parties.
Requests Nos. 1, 2, 5 and 6 directed to Krar, and Nos. 1-2 directed to Wilcox and
Malloy, are limited to surplus lines providing property, hazard, or related-liability coverage
to landlords of residential properties.

5

Of the multiple arguments raised by counsel, these are the most apparent ones that
counsel should have been able to resolve between themselves, without imposing upon the valuable
time of the Court.

5

Requests Nos. 9 and 12 directed to Krar, and Nos. 5 and 8 directed to Wilcox and
Malloy, are limited to requests only where landlords had their insurance premiums increased,
or insurance policy not renewed, due to the presence of Section 8 tenants.
Request No. 18 directed to Krar, and No. 14 directed to Wilcox and Malloy, is limited
to defendant's compliance with the federal or state housing laws relating to the source of
income, race, or national origin.
No limitation is warranted with respect to Request No. 11 directed to Krar, and No.
7 directed to Wilcox and Malloy, which requests go to the heart of this litigation. (Dkt. #42,
Brief at 8-11 & Exhs. A-F; Dkt. #47, at 14-19; Dkt. #52, at 4-6).
II. CONCLUSION
Accordingly, for the reasons stated above, the Motions to Quash Non-Party
Subpoena[s] (Dkts. ##42, 48, 49 and 51) are granted in part and denied in part to the
extent set forth above.
Unless the parties agree otherwise, Krar, Wilcox and Malloy shall comply on or
before July 31, 2015.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72;
and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order
of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure

6

to file timely objection to Magistrate Judge’s recommended ruling may preclude further
appeal to Second Circuit).6
Dated at New Haven, Connecticut, this 18th day of June, 2015.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

6

If any counsel believes that a settlement conference before this Magistrate Judge would
be productive, he or she should contact this Magistrate Judge's Chambers accordingly.

7