Shahin v. Delaware Federal Credit Union

Filing 41

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/4/12. (dzb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NINA SHAHIN,
Plaintiff,

CONSOLIDATED
Civ. No.1 0-475-LPS

v.
DELAWARE FEDERAL CREDIT
UNION,
Defendant.

Nina Shahin, Dover, Delaware, Pro Se Plaintiff.

Michael W. Arrington, Esquire, Parkowski, Guerke & Swayze, P .A. Counsel for Defendant.

Richard Strosser, Virginia Beach, Virginia, Pro Se Movant.

MEMORANDUM OPINION

September 4, 2012
Wilmington, Delaware

~~~"~

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff Nina Shahin ("Plaintiff') filed two lawsuits pursuant to the Expedited Funds

Availability Act, 12 U.S.C. § 4001 et seq., regarding a $2,500 check deposited into her account
on May 10, 2010. See Shahin v. Delaware Fed. Credit Union, Civ. No. 10-475-LPS; Shahin v.
Delaware Fed. Credit Union (Del-One), Civ. No. 10-597-LPS. The complaints involve similar
allegations and were consolidated on September 28,2010. (See D.1. 6) Presently before the
Court is Plaintiffs motion to amend (D.L 19), motion to schedule jury trial (D.!. 38), and motion
to hold pro se movant Richard Strosser ("Strosser") in contempt of court (D.1. 39), as well as
Strosser's motion to quash (D.L 36). For the reasons that follow, the Court will deny without
prejudice to renew the motion to amend, will grant the motion to quash, will deny as premature
the motion to schedule jury trial, and will deny the motion to hold Strosser in contempt.

II.

BACKGROUND
Plaintiff deposited a check into a joint checking account on May 10, 2010 with a hold

until May 12,2010. Plaintiff left the bank. The next day she received notice from Defendant
that, because it could not verify the check, it was required to extend the hold for fifteen business
days; it placed the funds into Plaintiff s share (savings) account. Plaintiff alleges that the notice
did not comply with the requirements of 12 C.F.R. § 229.13. Plaintiff further alleges that she
was not provided timely access to the monies she had deposited into her checking account when
Defendant, instead, deposited the monies into the share (savings) account without written
authorization. Plaintiff was charged a total of $6.00 for check overdraft fees.

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On August 25,2011, the Court entered a scheduling order that provided for amendment
of pleadings on or before September 26,2011, completion of discovery on or before February 27,
2012, and filing of summary judgment motions on or before March 27,2012. Plaintiff has filed a
motion for leave to amend, objected to by Defendant. (D.I. 19) She subpoenaed Strosser to
appear for a deposition and he, in turn, has filed a motion to quash the subpoena. (DJ. 36)
Plaintiff then filed a motion to hold Strosser in contempt for failing to appear at the deposition.
(D.I. 39) Finally, Plaintiff moves to schedule a jury trial. (DJ. 38)

III.

MOTION TO AMEND
A.

Legal Standards

Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as a matter of
course within twenty-one days after serving it or, if the pleading is one to which a responsive
pleading is required, twenty-one days after service of a responsive pleading or twenty-one days
after service of a Rule 12(b) motion, whichever is earlier. Otherwise, a party may amend its
pleading only with the opposing party's written consent or the court's leave. Rule 15 provides
that the Court should freely give leave to amend when justice so requires.
The Third Circuit has adopted a liberal approach to the amendment of pleadings to ensure
that "a particular claim will be decided on the merits rather than on technicalities." Dole v. Arco
Chern. Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citations omitted). Amendment, however, is

not automatic. See Dover Steel Co., Inc. v. Hariford Accident and Indem., 151 F.R.D. 570, 574
(E.D. Pa. 1993). Leave to amend should be granted absent a showing of "undue delay, bad faith
or dilatory motive on the part ofthe movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of the allowance of the

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amendment, futility of amendment, etc." Fornan v. Davis, 371 U.S. 178, 182 (1962); see also

Oran v. Stafford, 226 F.3d 275,291 (3d Cir. 2000).
B.

Discussion

The Court entered a scheduling order on August 25,2011 providing for amendment of
pleadings on or before September 26, 2011. (See D.L 18) Plaintiff timely filed a motion for
leave to amend. The motion seeks to add counts of constructive fraud relating to breach of
fiduciary duties in a principal-agent relationship. In addition, Plaintiff seeks to change the ad
damnum clause to one million dollars. Defendant objects on the grounds that Plaintiff failed to
abide by the Local Rules of this Court.
Rule 15.1 of the Local Rules of Civil Practice and Procedure of the United States District
Court for the District of Delaware provides that a party who moves to amend a pleading shall
attach to the motion the proposed pleading as amended, complete with a handwritten or
electronic signature and a fonn of the amended pleading which shall indicate in what respect it
differs from the pleading which it amends, by bracketing or striking through materials to be
deleted and underlining materials to be added. See D. Del. LR 15.1. Plaintiff did not attach a
copy of the proposed amended complaint as required by Local Rule 15.1.
Plaintiffis a frequent filer in this Court and is no stranger to either the Federal Rules of
Civil Procedure or the Local Rules of this Court. Therefore, the Court will deny the motion (D.L
19) without prejudice to refiling in accordance with the Local Rules of this Court.

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IV.

MOTION TO QUASH
A.

Le2a1 Standards

Pursuant to Fed. R. Civ. P. 45, a party may serve a subpoena requiring a witness to appear
for his or her deposition. Rule 45 states that a subpoena must provide a specified time and place
to attend and testify. See Fed. R. Civ. P. 45 (a)(1)(A)(iii). In addition, serving a subpoena
requires delivering a copy to the named person. See id. at (b)(1). Finally, if the subpoena
requires attendance, Rule 45(b)(1) requires that a witness be tendered the fees for one day's
attendance and the mileage allowed by law. The statutory witness fee is $40.00, see 28 U.S.c.

§ 1821(b), and the mileage rate in effect on February 10,2012 was $0.51 per mile, see id. at
§ 1821 (c)(2); see also http://www.gsa.gov. 1
A party or attorney responsible for issuing and serving a subpoena must take reasonable
steps to avoid imposing undue burden or expense on a person subject to the subpoena. See Fed.
R. Civ. P. 45(c)(1). The district court has discretion whether to quash or modify a subpoena. See

Wedgewood Vill. Pharmacy, Inc. v. United States, 421 F.3d 263,268 n.5 (3d Cir. 2005);
Connaught Laboratories, Inc. v. SmithKline Beecham P.L.c., 7 F. Supp. 2d 477,480 (D. Del.
1998). However, the issuing court must quash or modify a subpoena that requires a person who
is neither a party nor a party's officer to travel more than 100 miles from where that person
resides, is employed, or regularly transacts business in person or otherwise subjects a person to
undue burden. See Fed. R. Civ. P. 45(c)(3)(A)(ii), (iv).

IThe reimbursement rate for use of a privately owned vehicle was increased to $.0555,
effective April 17,2012. The Internal Revenue Service and the General Services Administration
do not necessarily have the same reimbursement rate. See http://www.gsa.gov.
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B.

Discussion

Plaintiff subpoenaed Strosser, a non-party, to appear at a deposition to take place on
February 10,2012, at law offices located at 116 W. Water Street in Dover, Delaware. 2 (See DJ.
35) Plaintiff also tendered $64.00 for witness fees and $3.00 for mileage. (See id.) The
subpoena requested Strosser bring documents "related to the facts of [his] severance of
employment with [Defendant] and/or other documents that provide information related to the last
date of [his] employment and the reasons of [his] leave." (See id.) The subpoena was served
upon Strosser on Sunday, January 22,2012, at 130 Winding Ridge Road in Dover, Delaware.
(See id.)
On February 1, 2012, Strosser filed a motion to quash the deposition on the grounds that
the subpoena did not comply with the Federal Rules of Civil Procedure. (See D.L 36) Strosser is
a former employee of Defendant, his separation occurring around April 20, 2010. Strosser argues
that the documents Plaintiff seeks are in Defendant's possession and they have no relevance to
Plaintiffs claims. In addition, Strosser's primary residence is at 524 Diamond Plum Circle in
Virginia Beach, Virginia, where he is employed. According to Strosser, he travels to Dover,
Delaware approximately two times per month. Strosser indicates that the witness fee and
mileage tendered do not cover the cost of gas. In addition, he seeks compensation at a higher rate
for lost wages due to travel and deposition attendance time. He offered to be deposed via
telephone or, alternatively, that he would appear in person when he next traveled to Dover on
February 24, 2012. Plaintiff responded that a telephone deposition was unacceptable and the

2The subpoena incorrectly requests that Strosser appear and testify at a hearing or trial in
a civil action.
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February 24th date was subject to acceptance by defense counsel because the February 27,2012
discovery deadline was looming.
Plaintiff argues that Strosser's family home is in Dover, Delaware and, because he drives
there every Saturday, it is not hardship for him to drive a day earlier. Plaintiff concedes that
Strosser is employed in Virginia Beach. However, she argues the witness and mileage she
remitted was "reasonable," as it would compensate him for an eight hour absence from work (at
the current minimum wage of $7.24 per hour) and mileage of 5.9 miles, from the Dover house to
the Dover law firm office, at the rate of$0.55 per mile. Plaintiff indicates that Strosser recently
ran for election in Kent County, Delaware. In addition, with respect to relevance, she argues that
Strosser is a former officer of Defendant and would have knowledge of Defendant's fiduciary
duties and Defendant's scheme to defraud. (See DJ. 37)
Having considered Strosser's and Plaintiffs positions, the Court finds it appropriate to
quash the subpoena for deposition. The deposition was set for Friday, February 10, 2012, a work
day. Hence, the subpoena required Strosser, who is employed in Virginia Beach, Virginia, to
miss a day's work and travel 190 miles to the site of the deposition in Dover, Delaware. 3 Rule
45(c)(3)(A)(ii) requires that the Court quash a subpoena when the witness is expected to travel
more than 100 miles from where that person is employed. Even if Strosser travels to Dover
every weekend, Plaintiff expected him to miss a day's work and then failed to tender the

3The mileage from Strosser's residence at 524 Diamond Plum Circle, Virginia Beach,
Virginia to the site ofthe deposition at 116 West Water Street, Dover, Delaware is 190 miles
one-way, or 380 miles round-trip.

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appropriate witness fee and mileage. Of course, this assumes that Strosser was required to travel
the lengthy distance. 4
In addition, the Court finds that requiring Strosser to miss a day's work, without
reasonable compensation, subjects him to undue burden. Strosser offered to be deposed by
telephone, but the offer was rejected. It further appears that his offer to appear on February 24,
2012, three days before the discovery deadline, was also rejected.
Finally, this consolidated case revolves around violations of the Expedited Funds
Availability Act, but the subpoena directs Strosser to produce documents related to his severance
of employment by Defendant, an issue not raised in the Complaint. Moreover, the acts at issue
occurred on May 10, 2010, a time when Strosser was no longer employed by Defendant, as his
separation of employment occurred on April 20 or 21, 2010. Plaintiff indicates that she intended
to question Strosser about "other instances of what can be defined as a 'scheme' to defraud [her]
account with unlawful fees and charges to establish a pattern, necessary for a definition of
'scheme' in her claims of violations of 'fiduciary duties'" by Defendant. (D.1. 37 at 2) No such
claims, however, are raised in the consolidated complaint, and the Court finds that Plaintiff seeks
discovery that is irrelevant. See Fed. R. Civ. P. 26(b)(1).
For the above reasons, the Court finds that Strosser's motion to quash is well-founded.
Therefore, the Court will grant the motion to quash. (D.1. 36)

4Even were Strosser required to appear, Plaintiff should have tendered the $40.00 witness
fee plus mileage in the sum of$193.60 (i.e., 380 miles round trip times $.051 per mile), for a
totalof$233.60. Plaintiff tendered a total of$67.00.
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V.

MOTION FOR SANCTIONS
Plaintiff moves for an order to hold witness Strosser, a non-party, in contempt for failing

to appear at the February 10,2012 deposition. (D.l. 39) Strosser opposes the motion. (D.l. 40)
Rule 45(e) provides that "[t]he issuing court may hold in contempt a person who, having
been served, fails without adequate excuse to obey the SUbpoena. A nonparty's failure to obey
must be excused if the subpoena purports to require the nonparty to attend or produce at a place
outside the limits of Rule 45(c)(3)(A)(ii)." As discussed above, the subpoena required Strosser
to attend a deposition more than 100 miles from his place of employment, a place outside the
limits of Rule 45(c)(3)(A)(ii). Accordingly, the Court will deny the motion for sanctions. (D.l.
39)

VI.

SCHEDULING
Plaintiff moves the Court to set this matter for trial. (D'!.38) The Court will deny the

motion as premature. In addition, the Court will amend the Scheduling Order entered on August
25,2011.

VII.

CONCLUSION
For the above reasons, the Court will deny without prejudice the Motion to Amend (D.l.

19), will grant the motion to quash (D.l. 36), will deny as premature the motion to schedule this
matter for a jury trial (38), and will deny the motion for sanctions (D.L 39). The Court will
amend the Scheduling Order.
An appropriate Order will be entered.

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