Conyers et al v. Balboa Insurance Company
Filing
59
ORDER denying 55 Motion to Quash Trial Subpoena. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 6/5/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRIS CONYERS and BRANDI
CONYERS,
Plaintiffs,
v.
Case No. 8:12-cv-30-T-33EAJ
BALBOA INSURANCE COMPANY,
Defendant.
_____________________________/
ORDER
This cause is before the Court pursuant to Defendant
Balboa Insurance Company’s Motion to Quash Trial Subpoena
(Doc. # 55), which was filed on May 31, 2013.
Plaintiffs
Chris and Brandi Conyers filed a Response in Opposition to
the Motion (Doc. # 58) on June 3, 2013.
For the reasons
that follow, the Court denies the Motion to Quash.
Discussion
This case is set to be tried by a jury commencing June
10, 2013.
upon
In preparation for the trial, Plaintiffs served
counsel
for
Balboa
a
subpoena
to
the
“Corporate
Representative of Balboa Insurance Company with the most
knowledge
as
to
the
affirmative
defenses,
discovery
responses, claim denial and selection of engineers.” (Doc.
# 55-1).
Balboa seeks an Order quashing the subpoena for
the
following
attendance
of
reasons:
a
(1)
corporate
it
seeks
representative
to
compel
(rather
the
than
a
specifically identified person) at trial; (2) it was not
accompanied by relevant witness fees; and (3) the witness
is outside of the 100 mile limit of Rule 45, Fed. R. Civ.
P.
Balboa argues that Plaintiffs are “obviously trying to
invoke the provisions of Rule 30(b)(6) of the Federal Rules
of Civil Procedure for securing deposition testimony of a
corporation
through
individuals
designated
by
the
corporation.
Discovery . . . is closed, and the provisions
of Rule 30(b)(6) are limited to discovery depositions and
not trial testimony.”
(Doc. # 55 at 3).
Balboa also
indicates that Plaintiffs failed to depose any corporate
representative during discovery and should now be precluded
from securing the testimony of a corporate representative
at trial.
In support of this position, Balboa draws the Court’s
attention to Hill v. National Railroad Passenger Corp., No.
88-5277, 1989 U.S. Dist. LEXIS 9011 (E.D. La. July 28,
1989), which states:
Rule
30(b)(6)
specifically
applies
to
deposition of a corporation.
Rule 45 of
Federal Rules of Civil Procedure provides
2
the
the
the
proper procedure by which a person may be
compelled to testify at trial.
There is no
provision allowing the use of the 30(b)(6)-type
designation of areas of inquiry or allowing
service on a corporation through an agent for
service
of
process
in
order
to
compel
a
particular person, who may be a corporate
employee outside the subpoena power of the court,
to testify at trial.
Id. at *1-2.
While Balboa’s position is not completely unjustified,
it is not supported by persuasive authority.
Plaintiffs,
on the other hand, rely upon Williams v. Asplundh Tree
Expert Co., No. 3:05-cv-479, 2006 U.S. Dist. LEXIS 64620
(M.D.
Fla.
Sept.
11,
2006),
a
addressed a very similar issue.
case
where
this
court
There, the court declined
to quash a Rule 45 subpoena served on an unnamed corporate
representative
and
declined
to
issue
a
concerning that corporate representative.
protective
order
Under the facts
presented here, the same ruling is appropriate.
The
Williams
decision
also
addressed
the
concern
regarding the Court’s subpoena power for witnesses located
over 100 miles from the courthouse. Rule 45(c)(3)(A)(ii)
provides that a 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
3
100
miles
from
where
that
person
resides,
is
employed,
or
regularly
transacts
business.” The court explained in Williams:
[T]he corporate representative in this case would
clearly
be
testifying
on
behalf
of
the
corporation, not in his/her individual capacity.
As such, the Court holds that the corporate
representative should be considered a “party”
regardless of whether he/she is an officer of the
company and should be produced even if he/she
resides outside of the 100 mile limit.
Id. at *7.
The same result was reached in the persuasive case of
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co., 262
F.R.D. 293, 303 (S.D.N.Y 2009): “[T]here is no basis under
the 100-mile rule to quash the subpoenas seeking testimony
of the Bondholders’ corporate representatives.”
The court
further noted that “the Bondholders, as parties to this
action, affirmatively have taken advantage of the benefits
of this forum, and the Court has the power to require these
parties to produce corporate representatives to testify on
their behalf at trial.”
Id.
The Court agrees with the
sound reasoning of the Williams and Aristocrat cases.
While Balboa does not identify the person Balboa would
designate
to
appear
at
trial
pursuant
to
the
relevant
subpoena, Balboa does suggest that the person “resides and
works in either California, Arizona, or Texas.” (Doc. # 55
4
at 4).
However, because the Court finds that such person
is, for the purpose of Rule 45, a “party,” the 100 mile
limit does not apply.
that
any
such
In addition, Balboa has not asserted
corporate
representative
would
be
unduly
burdened by traveling to Tampa, Florida for the trial of
this case.
The
Court
also
finds
moot
and
otherwise
unavailing
Balboa’s contention that Plaintiffs have failed to tender
certain travel expenses and other fees for Balboa’s unnamed
corporate representative.
As asserted by Plaintiffs, it is
not possible to pay travel expenses in advance when the
identity and the location of the witness have not been
disclosed by Balboa.
Plaintiffs represent that they are
willing, ready, and able to pay any applicable fees and
costs
once
identified.
the
corporate
Accordingly,
representative
Balboa’s
arguments
has
been
concerning
nonpayment of fees and costs are unavailing.
Thus, upon due consideration of the parties’ arguments
and the Court’s evaluation of Rule 45, the Court determines
that Balboa must comply with the subpoena by producing its
corporate
representative
at
trial
and
should
promptly
identify this individual so that Plaintiffs may pay the
5
relevant
fees
associated
with
the
corporate
representative’s travel and attendance at trial.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Balboa Insurance Company’s Motion to Quash Trial Subpoena
(Doc. # 55) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
5th day of June, 2013.
Copies: All Counsel of Record
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