Narcoossee Aquisitions, LLC v. Kohl's Department Stores, Inc. et al
Filing
45
ORDER granting 42 Motion to Quash; denying as moot 42 Motion for Protective Order. Signed by Magistrate Judge Thomas B. Smith on 8/28/2014. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NARCOOSSEE ACQUISITIONS, LLC,
Plaintiff,
v.
Case No. 6:14-cv-203-Orl-41TBS
KOHL'S DEPARTMENT STORES, INC.,
Defendant.
____________________________________/
ORDER
Pending before the Court are the Motion of Ross Stores, Inc., to Quash and/or
Modify a Subpoena and for Protective Order (Doc. 42), and the Objection of Ross
Stores, Inc., to Subpoena Duces Tecum Served July 25, 2014 (Doc. 43). The time for
filing responses in opposition to the motion and objection has expired and none have
been filed.
Narcoossee Acquisitions, LLC desires to lease space in the Vista Palms
Shopping Center to Ross Stores, Inc. (Doc. 30, ¶¶ 7-13). Existing tenant Kohl’s
Department Stores, Inc., objects on the ground that the lease of space to Ross would
violate the Amended and Restated Declaration of Covenants, Conditions and
Restrictions for Vista Palms Commercial Property Owners Association, Inc. (Doc. 305). Narcoossee brings this action for a declaratory judgment that it is not prohibited
from entering into a lease with Ross; that Kohl’s has breached the declaration by
improperly withholding its consent to the Ross lease; that Kohl’s tortiously interfered
with Narcoossee’s advantageous business relationship with Ross; and for an
injunction prohibiting Kohl’s from withholding its approval of the Ross lease. (Doc.
30).
Ross' corporate headquarters is in Dublin, California. It does not maintain a
business office in the state of Florida. (Doc. 42 at 23). On June 25, 2014, the
attorney for Kohl’s caused a subpoena duces tecum issued out of the Northern District
of California to be served on Ross. (Id., at 17-24). The subpoena commands Ross to
produce: (1) all of its communications with Narcoossee; (2) all lease agreements
between Ross and Narcoossee; (3) all drafts of lease agreements between Ross and
Narcoossee; (4) all site plans and elevations for the construction of a Ross store in the
shopping center; and (5) all communications between Ross and any other tenant in
the shopping center regarding the construction of a Ross store. (Id., at 22). Ross
objects to the subpoena, is asking the Court to quash and/or modify it, and seeks a
protective order pursuant to F ED.R.CIV.P. 26(c). (Docs. 42-43).
Under the 2013 amendments to Federal Rule of Civil Procedure 45, the district
court with jurisdiction to enforce and to quash subpoenas is the “court for the district
where compliance is required,” which may or may not be the court that issued the
subpoena. F ED.R.CIV.P. 45(d)(1), (d)(3), (g). The subpoena requires Ross to mail the
documents to Kohl’s attorney’s office, which is located in the Middle District of Florida.
(Doc. 42 at 17). Because compliance is required in the Middle District of Florida, this
Court has jurisdiction to enforce or quash the subpoena. See Ace Hardware Corp. v.
Celebration Ace Hardware, LLC, Misc 09-109-SLR, 2009 WL 3242561 (D. Del. 2009)
(parenthetical).
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The subpoena is both procedurally and substantively defective. Procedurally, it
is defective because it violates Federal Rule of Civil Procedure 45(a)(2), which
provides that subpoenas "must issue from the court where the action is pending."
Because the Kohl’s subpoena was issued from the wrong court, it is not enforceable.
Tracfone Wireless, Inc. v. Riedeman, No. 6:06-cv-1257-Or1-18JGG, 2007 WL
191651, at *2 (M.D.FIa. Jan. 23, 2007) (subpoena " procedurally deficient" and
unenforceable when issued from the wrong district).
To issue a subpoena on behalf of a court, as Kohl’s attorney did here, the
attorney who signs the subpoena must be authorized to practice in the issuing court.
FED.R.CIV.P. 45(a)(3). Ross alleges, and Kohl’s has not disputed, that the attorney
who issued and signed the subpoena is not admitted to practice in the Northern
District of California. Consequently, Kohl’s lawyer did not have authority to issue the
subpoena from that court.
Although Ross does not raise this in its motion, Kohl’s attorney included in the
subpoena the text of the old Rule 45(c) and (d), rather than the current Rule 45(d) and
(e). See FED.R.CIV.P. 45(a)(1)(A)(iv). The Court notes that the blank subpoenas
provided on its website and that of the Northern District of California include the
current text of the rule. See United States District Court for the Middle District of
Florida, Forms, Policies, & Publications,
https://www.flmd.uscourts.gov/forms/forms_policies.htm (visited August 27, 2014);
United States District Court for the Northern District of California, Civil Forms,
http://www.cand.uscourts.gov/civilforms (visited August 27, 2014).
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Substantively, the subpoena violates Rule 45(d)(1), which requires the attorney
responsible for issuing and serving a subpoena to take reasonable steps to avoid
imposing an undue burden or expense on the person subject to the subpoena. In
determining whether a subpoena imposes undue burden or expense on a nonparty,
courts must balance the requesting party’s interests in disclosure against the burden
of disclosure on the nonparty. 9A Wright & Miller, Federal Practice & Procedure §
2463.1 (3d ed.). If a subpoena subjects a person to undue burden, the Court must
quash or modify it. F ED.R.CIV.P. 45(d)(3)(A)(iv).
The subpoena directs that “If a document responsive to a Request has been
destroyed, it should be identified as follows: (i) preparer and addressor; (ii) addressee;
(iii) each recipient and each person to whom distributed or shown; (iv) date prepared;
(v) date transmitted; (vi) date received; (vii) description of contents and subject matter;
(viii) date of destruction; (ix) manner of destruction; (x) name, title and address of the
person who directed that the document be destroyed and the person who destroyed
the document; (xi) the reason for the document's destruction; (xii) the names of
persons having knowledge of the destruction; and (xiii) a full description of the efforts
made to locate the document.” (Doc 42 at 21). In commanding Ross, a non-party, to
provide this amount of information concerning any responsive documents that may
have been destroyed, Kohl’s has attempted to impose an undue burden and expense
on Ross.
The subpoena states that it is continuing in nature so that if, after Ross
responds, it obtains or becomes aware of any further responsive documents, then
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Ross is required to produce them. Rule 26(e) does not apply to non-parties.
Therefore, this part of the subpoena attempts to impose an undue burden and
expense on Ross in violation of Rule 45(d)(1).
Ross argues, and Kohl’s has not disputed, that Kohl’s can obtain copies of
Ross’ communications with Narcoossee from Narcoossee. While the availability of
the requested information from Narcoossee does not foreclose Kohl’s from seeking
the same information from Ross, it suggests that Kohl’s could have crafted its
requests more judiciously and with a greater sensitivity to the burden it was imposing
on Ross.
Ross objects that compliance with the subpoena will require it to disclose
information concerning the rent it is willing to pay, the terms under which it is willing to
be a tenant, and other deal terms, all of which it argues is confidential commercial
information and trade secrets. See F ED.R.CIV.P. 45(d)(3)(B)(i) (court may quash or
modify subpoena that seeks disclosure of trade secret or other confidential
information). Ross also objects that its internal evaluation and analysis of a lease with
Narcoossee may contain attorney-client privileged information. See F ED.R.CIV.P.
45(d)(3)(A)(iii) (court must quash or modify subpoena that seeks disclosure of
privileged communications). When Narcoossee filed this lawsuit, it attached a copy of
its ground lease with Kohl’s to its complaint. Kohl’s filed a motion to seal the ground
lease on the grounds that it “contains confidential business information about rent
prices, construction and operational details, insurance requirements, use restrictions,
and other business terms that are specific to the transaction between Kohl’s and
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Plaintiff. This information would reveal how Kohl’s structures its store leases and
Kohl’s would be harmed competitively if this information were disclosed to its
competitors and other potential landlords.” (Doc. 4 at 1). The Court granted the
motion to seal. (Doc. 11). For the reasons argued by Kohl’s in its motion to seal, the
Court finds that the subpoena seeks disclosure of confidential and possibly privileged
information which should not be disclosed in the absence of a confidentiality
agreement satisfactory to Ross and the parties.
Ordinarily, modifying a subpoena is preferable to quashing it. However, Kohl’s
disregard for Rule 45 and its failure to respond to any of Ross’ arguments justifies
quashing the subpoena in this case. Accordingly, Ross’ objection to the subpoena is
SUSTAINED and its motion to quash is GRANTED. The subpoena which Kohl’s
caused to be served on Ross is QUASHED. The motion for protective order is
DENIED as moot.
Before Ross filed its motion and objections, its lawyer attempted to resolve
these issues with Kohl’s lawyer. Counsel represents that he conferred with the lawyer
for Kohl’s and asked why the information was being sought via the subpoena. Kohl’s
lawyer responded that he issued the subpoena " because I can." Kohl’s does not
dispute this assertion. Local Rule 3.01(g) imposes a duty on counsel to meet and
confer in good faith before a motion to quash and for a protective order is filed. Given
the obvious problems with the subpoena, the Court finds that after counsel conferred
the subpoena should have been withdrawn. Instead, Kohl’s objected to the relief
Ross is seeking, and then chose not to file a response to Ross’ objection and motion.
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These actions lead the Court to conclude that Kohl’s has not acted in good faith.
Kohl’s position is not substantially justified, and no other circumstances make an
award of fees and expenses unjust. Accordingly, pursuant to Rules 26(c)(3), 37(a)(5),
and 45(d)(1) of the Federal Rules of Civil Procedure, the Court finds that Ross is
entitled to recover its reasonable attorney’s fees and costs incurred in defending
against the subpoena from Kohl’s. Within 14 days from the rendition of this Order,
Ross shall file the appropriate papers to establish the amount of fees and costs it is
claiming. Kohl’s will then have 14 days to respond.
DONE AND ORDERED in Orlando, Florida, on August 28, 2014.
Copies to all Counsel
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