Noel-Wagstaffe v. Metropolitan Casualty Insurance Company

Filing 30

ORDER deferring ruling on 21 Motion for Order to Show Cause; deferring ruling on 22 Motion for Order to Show Cause; deferring ruling on 23 Motion for Order to Show Cause; deferring ruling on 24 Motion for Order to Show Cause; granting 21 Motion to Compel; granting 22 Motion to Compel; granting 23 Motion to Compel; granting 24 Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 12/7/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-Civ-61039-WILLIAMS/TORRES
ROSELINE NOEL-WAGSTAFFE,
Plaintiff,
v.
METROPOLITAN CASUALTY INSURANCE
COMPANY, a foreign profit corporation,
Defendant.
______________________________________/
OMNIBUS ORDER
ON DEFENDANT’S MOTIONS TO SHOW CAUSE AND/OR COMPEL
This matter is before the Court on Metropolitan Casualty Insurance
Company’s (“Defendant”) motions to show cause and/or compel against Sunrise
Neurology Group, Interventional Rehabilitation of South Florida, Dr. Gerald S.
Goldberg, and Sunrise Medical MRI East (collectively, the “Non-parties”). [D.E. 2124].

The Non-Parties did not respond to Defendant’s motions.1

Therefore,

Defendant’s motions are now ripe for disposition. After careful consideration of the
motions and relevant authority, and for the reasons discussed below, Defendant’s
motions are GRANTED.

Defendant filed its motions on October 24, 2017, meaning the time for the
Non-Parties to respond has long since passed. [D.E. 21-24].
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I.

ANALYSIS

On various dates in July and August 20172, Defendant served each of the
Non-Parties with a subpoena requesting a production of documents.

Defendant

argues that none of the Non-Parties produced any documents or served any
objections. On September 28, 2017, Defendant sent each of the Non-Parties a letter
requesting compliance with the subpoena within 15 days to avoid judicial
intervention. Because the Non-Parties remain noncompliant with the subpoena,
Defendant requests that the Non-Parties either (1) show cause on why they should
not be held in contempt or (2) be compelled to produce documents.
“[A] Rule 45 subpoena is a discovery vehicle to be used against non-parties
to, among other things, obtain documents relevant to a pending lawsuit.” Hatcher
v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010). More specifically, Rule 45
allows a subpoena to command the “production of documents, electronically stored
information, or tangible things at a place within 100 miles of where the person
resides, is employed, or regularly transacts business in person.” FED. R. CIV. P.
45(c)(2)(A); see also FED. R. CIV. P. 45(a)(1)(C) (“A command to produce documents,
electronically stored information, or tangible things or to permit the inspection of
premises . . . may be set out in a separate subpoena.”). If a non-party timely serves
written objections, the non-party’s objection to comply with the subpoena is
suspended pending a court’s order. See Am. Fed’n of Musicians of the United States
Sunrise Neurology Group and Sunrise Medical MRI East were each served on
July 27, 2017. Interventional Rehabilitation of South Florida was served on August
3, 2017 and Dr. Gerald Goldberg was served on July 28, 2017. And was served on
July 2
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& Canada v. Skodam Films, LLC, 313 F.R.D. 39, 44 (N.D. Tex. 2015) (“Timely
serving written objections therefore suspends the non-party's obligation to comply
with a subpoena commanding production of documents, pending a court order.”)
(citing FED. R. CIV. P. 45(d)(2)(B)(ii); Hodnett v. Smurfit–Stone Container Enters.,
Inc., Civ. A, 2010 WL 3522497, at *1 n.3 (W.D. La. Sept. 2, 2010)). “The failure to
serve written objections to a subpoena within the time specified by Rule
[45(d)(2)(B)] typically constitutes a waiver of such objections, as does failing to file a
timely motion to quash.” Am. Fed’n, 313 F.R.D. at 43 (internal quotation marks
omitted).
While Rule 45 does not include a specific time to comply with a subpoena to a
non-party in the rule itself, it does provide that “[o]n timely motion, the court for the
district where compliance is required must quash or modify a subpoena that: fails to
allow a reasonable time to comply . . . .” FED. R. CIV. P. 45 (emphasis added). And
“[a]lthough ‘reasonable time’ is not explicitly defined in this section of Rule 45, other
courts have looked to the language . . . to find fourteen days from the date of service
is presumptively reasonable.” In re Rule 45 Subpoena to Fid. Nat. Info. Servs., Inc.,
2009 WL 4899399, at *1 (M.D. Fla. Dec. 11, 2009) (citing McClendon v. TelOhio
Credit Union, Inc., 2006 WL 2380601 (S.D. Oh. Aug.14, 2006)); see also Mendenhall
v. Blackmun, 2010 WL 3272946, at *1 (S.D. Ala. Aug. 18, 2010); Parrot, Inc. v.
Nicestuff Distrib. Int’l, Inc., 2009 WL 197979, at *4 (S.D. Fla. Jan. 26, 2009)
(rejecting non-party’s argument that subpoena did not provide sufficient time for

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response and reiterating that “reasonableness” is considered on a case by case
basis).
Here, the Non-Parties have had ample time to review the subpoena and
formulate their responses. Yet, the Non-Parties have clearly failed to do so with
either a production of documents or objections. As such, Defendant’s motions to
compel the production of documents from each of the Non-Parties are GRANTED.
II.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:
A. Defendant’s motion to compel Sunrise Neurology Group to produce
documents is GRANTED.
B. Defendant’s motion to compel Interventional Rehabilitation of South
Florida to produce documents is GRANTED.
C. Defendant’s motion to compel Dr. Gerald S. Goldberg to produce
documents is GRANTED.
D. Defendant’s motion to compel Sunrise Medical MRI East to produce
documents is GRANTED.
E. Each of the Non-Parties must produce the requested items in Defendant’s
subpoena within fourteen (14) days from the date of this Order.
F. Defendant’s motion for an Order to Show Cause on why the Non-Parties
should not be held in contempt is deferred to a later date if the NonParties fail to comply with the terms of this Order.

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DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of
December, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
CC:
Dr. Gerald S. Goldberg
3540 N. Pine Island Road
Sunrise, FL 33351
Interventional Rehabilitation of South Florida
7700 W. Sunrise Blvd. Mailstop PL-6
Plantation, FL 33313
Sunrise Medical MRI East
4925 Sheridan Street, Suite 100
Hollywood, FL 33021
Sunrise Neurology Group
12596 Pines Blvd.
Pembroke Pines, FL 33027

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