Cruz et al v. Green Tree Mortgage Servicing, LLC

Filing 134

RULING granting defendants' 105 MOTION to Compel Compliance with Subpoena. Signed by Judge Sarah A. L. Merriam on 2/17/2017. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
MARGARET CRUZ, et al.
:
:
v.
:
:
GREEN TREE MORTGAGE SERVICING,:
LLC, et al.
:
:
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Civil No. 3:15CV00714(AWT)

February 17, 2017

RULING ON DEFENDANTS’ MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA [DOC. #105]
Pending before the Court is a motion by defendants Green
Tree Mortgage Servicing, LLC and Federal National Mortgage
Association (herein collectively referred to as “defendants”)
pursuant to Rule 45 of the Federal Rules of Civil Procedure to
compel compliance with a non-party subpoena served upon Miller,
Broich & Associates. [Doc. #105]. No opposition has been filed
to this motion. For the reasons articulated below, the Court
GRANTS defendants’ Motion to Compel, absent objection, and
orders non-party Miller, Broich & Associates to comply with
defendants’ subpoena.
I.

Legal Standard
“Pursuant to Federal Rule of Civil Procedure 45, a party

may serve a subpoena commanding a nonparty to attend and testify
or to produce designated documents.” Sberbank of Russia v.

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Traisman, No. 3:14CV216(WWE), 2016 WL 4479533, at *1 (D. Conn.
Aug. 23, 2016) (quotation marks and citations omitted); see also
Fed. R. Civ. P. 45(a)(1)(A)(iii). “A person commanded to produce
documents or tangible things or to permit inspection may serve
on the party or attorney designated in the subpoena a written
objection to inspecting ... any or all of the materials[.]” Fed.
R. Civ. P. 45(d)(2)(B). Any written objection to a subpoena for
production or inspection “must be served before the earlier of
the time specified for compliance or 14 days after the subpoena
is served.” Id. “The failure to serve written objections to a
subpoena within the time specified by Rule 45[ ] typically
constitutes a waiver of such objections.” Concord Boat Corp. v.
Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996); see also 9
James Wm. Moore et al; Moore’s Federal Practice §45.41[1][c] (3d
ed. 2016) (“If no timely written objection is served, the person
subject to the subpoena generally waives any objection to
production or inspection as commanded by the subpoena.”).
“If a party fails to obey a subpoena or an order to provide
discovery, the Court may hold that party in contempt.” E. Point
Sys., Inc. v. Maxim, No. 3:13CV00215(VAB), 2016 WL 1118237, at
*25 (D. Conn. Mar. 22, 2016); see also Fed. R. Civ. P. 45(g)
(“The court for the district 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.”). Further, “it is well-settled that a court’s contempt
power extends to non-parties who have notice of the court’s
order and the responsibility to comply with it.” Trustees of
I.B.E.W. Local Union No. 488 Pension Fund v. Norland Elec.,
Inc., No. 3:11CV709(CSH), 2016 WL 1060188, at *3 (D. Conn. Mar.
14, 2016) (quotation marks and citation omitted) (collecting
cases).
II.

Discussion
On December 1, 2016, defendants served Miller, Broich &

Associates with a subpoena seeking “[a]ll documents concerning
or related to any applications, inquiries, or denials for
credit, including a refinance by [plaintiffs] ... from 2013 to
the present, including any communications with [plaintiffs].”
Doc. #105-4 at 2. After receiving no response to the subpoena,
defendants sent a follow-up letter on January 6, 2017, and then
an email on January 25, 2017. See Doc. #105-1 at 4. On January
26, 2017, defendants filed the instant motion to compel, and
served a copy of the motion upon Miller, Broich & Associates by
certified mail on the same date. See Doc. #105-1 at 6.
To date, no written objection to the subpoena has been
made, and neither Miller, Broich & Associates nor plaintiffs
have filed any opposition to defendants’ motion. No motion to

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quash has been filed. Further, the subpoena appears facially
valid. The documents sought appear to be relevant to the instant
matter. See Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y.
2010) (“A subpoena issued to a non-party pursuant to Rule 45 is
subject to Rule 26(b)(1)’s overriding relevance requirement.”
(quotation marks and citation omitted)). Defendants seek the
documents to investigate plaintiffs’ claim that plaintiffs’
credit was affected as a result of the underlying dispute, and
that an application for credit was denied by the non-party. See
Doc. #105-2 at 5. Defendants’ request is limited in scope and in
time, and does not appear overbroad on its face. The Court has
no reason to believe that compliance would be unduly burdensome.
See Fed. R. Civ. P. 45(d)(3)(A); see also Gray v. Town of
Easton, No. 3:12CV166(RNC), 2013 WL 2358599, at *2 (D. Conn. May
29, 2013) (denying nonparties’ motions to quash subpoenas where,
inter alia, the documents sought were relevant and production
would not be unduly burdensome); see also Tucker v. Am. Int’l
Grp., Inc., 281 F.R.D. 85, 98 (D. Conn. 2012) (“It is incumbent
upon courts to protect non-parties from significant expense when
considering motions to compel.”).
Accordingly, the Court GRANTS defendants’ motion to
compel. [Doc. #105]. Defendants shall serve a copy of this Order
by certified mail to non-party Miller, Broich & Associates on or

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before February 23, 2017. Miller, Broich & Associates shall
respond to the subject subpoena on or before March 6, 2017.
Should the non-party fail to comply with this Court’s Order, it
may be subject to sanctions for contempt.
This is not a Recommended Ruling. This is an order
regarding discovery and case management which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the Court
unless reversed or modified by the District Judge upon motion
timely made.
SO ORDERED at New Haven, Connecticut this 17th day of
February 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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