People For The Ethical Treatment of Animals, Inc. v. Dade City's Wild Things, Inc. et al

Filing 147

ORDER granting 138 Motion to Compel Hernando Primate's Compliance with Subpoena. See order for details. Signed by Magistrate Judge Amanda Arnold Sansone on 11/9/2017. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS, INC.,
Plaintiff,
v.

Case No.: 8:16-cv-2899-T-36AAS

DADE CITY’S WILD THINGS, INC.,
STEARNS ZOOLOGICAL RESCUE &
REHAB CENTER, INC. D/B/A DADE
CITY’S WILD THINGS, KATHRYN P.
STEARNS, AND RANDALL E. STEARNS,
Defendants.
______________________________________/
ORDER
This matter comes before the Court on Plaintiff’s Motion to Compel Hernando Primate’s
Compliance with Subpoena (Doc. 138). The Court directed that any response(s) in opposition to
the instant motion be filed by November 8, 2017. (Doc. 139). To date, no response has been filed.
I.

BACKGROUND
Plaintiff, People for the Ethical Treatment of Animals (“PETA”), filed this action against

Defendants Dade City’s Wild Things, Inc. (“DCWT”), Stearns Zoological Rescue & Rehab
Center, Inc., Kathryn Stearns, and Randall E. Stearns for alleged violations of the Endangered
Species Act (“ESA”), 16 U.S.C. §§ 1531, et seq. (Doc. 37). Defendants asserted counterclaims
against PETA for tortious interference, conversion, and fraud. (Doc. 38).
Plaintiff filed a Motion for Sanctions and Order to Show Cause Why They Should Not be
Held in Contempt (“Contempt Motion”) seeking contempt against Defendants for their failure to
comply with the Court’s July 12th and 14th Orders directing that Defendants allow Plaintiff on the
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DCWT premises to conduct a site inspection, and that Defendants not transfer, transport, or
relocate their tigers. (Docs. 63, 69). One of twenty-four tigers transferred from DCWT’s facility
in violation of this Court’s July 12th and 14th Orders was a tiger cub named Shiva, who was
previously used for public encounters at DCWT.

Non-party Hernando Primate, Inc., took

possession of Shiva.
On September 30, 2017, Plaintiff served Hernando Primate, via registered agent and
principal Ann M. Kelly, with a Subpoena commanding Hernando Primate to permit Plaintiff to
inspect Shiva at Hernando Primate’s facility on October 17, 2017 and to produce ten categories of
documents by October 16, 2017. (Doc. 138-1). Hernando Primate allowed Plaintiff to inspect
Shiva but has not produced the requested documents. (See Doc. 138-3).
On October 30, 2017, Plaintiff filed the instant motion seeking information responsive to
Request Nos. 3 and 4 of the Subpoena. Specifically, Plaintiff seeks the following:
Request No. 3 All internal documents or communications, including text messages,
instant messages, social media posts, voicemail messages, cell phone call logs and
e-mails in your custody, possession or control relating to any tiger(s) transferred
from Dade City’s Wild Things to Hernando Primate in July 2017.
Request No. 4 All communications, including text messages, instant messages,
social media posts, e-mails, voicemail messages, cell phone call logs and other
documents with Kathryn Stearns, Kenneth Stearns, Randall Stearns, and/or Dade
City’s Wild Things in your custody, possession or control.
(Doc. 138-1, pp. 9-10).
The Court scheduled an evidentiary hearing on the Contempt Motion for November 29,
2017, and, no later than November 17, 2017, the parties must provide the Court with a joint
statement in preparation for that hearing. (Doc. 120). Plaintiff contends that this information is
necessary to adequately prepare for the November 29th hearing. (Doc. 138).

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II.

ANALYSIS
Motions to compel discovery are committed to the sound discretion of the trial court. See

Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). Rule 26(b) of the
Federal Rules of Civil Procedure governs the scope of discovery. That rule provides, in relevant
part, that
[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible
in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Rule 45, Fed. R. Civ. P., governs discovery of non-parties by subpoena.
Under Rule 45, parties may command a nonparty to produce documents, electronically stored
information, or tangible things in that person’s possession, custody, or control for inspection,
copying, testing, or sampling. Fed. R. Civ. P. 45(a)(1)(A)(iii), (a)(1)(D).
Here, the categories of documents requested in Request Nos. 3 and 4 of the Subpoena are
directly relevant to the circumstances surrounding Defendants’ transfer of the tigers in violation
of this Court’s July 12th and 14th Orders (Docs. 63, 69). However, Request No. 4 is not limited
in time and should be limited to July 2017, the relevant time period. With this time limitation, the
Court finds these requests are proportional to the needs of this case and the burden in providing
this information is not heavy.1

Plaintiff’s counsel offered the use of his firm’s IT department to assist in extracting this
information, if needed. (Doc. 138, p. 4).
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III.

CONCLUSION
Accordingly, after due consideration, it is ORDERED that Plaintiff’s Motion to Compel

Hernando Primate’s Compliance with Subpoena (Doc. 138) is GRANTED.

No later than

November 15, 2017, Hernando Primate shall provide documents responsive to Request Nos. 3
and 4 of the Subpoena for the limited time period of July 2017.
DONE AND ORDERED in Tampa, Florida on this 9th day of November, 2017.

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