Bogart, LLC v. Ashley Furniture Industries, Inc.

Filing 4

ORDER Granting by Default 1 Non-Party's Motion to Quash Subpoena. Signed by Magistrate Judge Andrea M. Simonton on 3/19/2012. (mmn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-24616-MC-SEITZ/SIMONTON
BOGART, LLC,
Plaintiff,
vs.
ASHLEY FURNITURE
INDUSTRIES, INC.,
Defendant.
/
ORDER GRANTING BY DEFAULT NON-PARTY’S MOTION TO QUASH SUBPOENA
Presently pending before the Court is Non-Party, Zimmerman Advertising, LLC’s
Objection to Subpoena Issued by Plaintiff, Bogart, LLC (DE # 1). No party has filed a
response. The Honorable Patricia A. Seitz, United States District Judge, has referred this
matter to the undersigned United States Magistrate Judge (DE # 3). For the reasons
stated below, the non-party’s Objection, which the undersigned construes as a motion to
quash a subpoena, is granted by default.
Non-Party Zimmerman Advertising, LLC (“Zimmerman”) states in its Objection
that this case concerns a dispute over the allegedly improper use by Defendant of
intellectual property owned by Plaintiff (DE # 1 at 1). Though not directly stated, the
Objection suggests that Zimmerman provided advertising services to Defendant that
allegedly may have involved the disputed intellectual property (DE # 1 at 2). Zimmerman
objects to a subpoena duces tecum to produce documents purportedly relevant to this
dispute (the “Subpoena”), claiming that the requests are overly broad and production
would be unduly burdensome (DE # 1 at 2). Zimmerman attaches to its Objection the
Declaration of Monai Vano, who states that he is Zimmerman’s Account Director, and
who attests that the production would require 21 eight-hour days of work by a dedicated

employee (DE # 1-2 at 1). Zimmerman asks the Court that it “be protected from the
burden, expense and lost opportunity that it would suffer if it complied with the
Subpoena” (DE # 1 at 3). Accordingly, the undersigned construes the Objection as a
motion to quash the Subpoena.
The Objection was filed on December 27, 2011, and was served on attorneys
Michael O. Crain, Charles A. Burke and Matthew Lyndon Jamison by facsimile and U.S.
postal mail, according to the Service List (DE # 1 at 6). Although this case originates out
of the Middle District of Georgia, the Subpoena issued out of the Southern District of
Florida on December 13, 2011, by Michael O. Crain, counsel for Plaintiff on its behalf,
who requests production of the identified documents at his offices in Athens, Georgia,
on January 12, 2012 (DE # 1-1 at 1, 3).
Rule 45(c)(3)(A)(iv) of the Federal Rules of Civil Procedure states, “On timely
motion, the issuing court must quash or modify a subpoena that…subjects a person to
undue burden.” Zimmerman has filed its Objection, seeking to quash the Subpoena
because it is overly broad and unduly burdensome, and has filed a declaration attesting
to this burden. Approximately two-and-a-half months after Zimmerman filed its
Objection, none of the parties have filed a response. Therefore, upon a review of the
record as a whole, it is hereby
ORDERED AND ADJUDGED that Zimmerman’s Objection, which the
undersigned construes as a motion to quash the Subpoena (DE # 1), is GRANTED BY
DEFAULT. Non-Party Zimmerman Advertising, LLC, shall not be required to produce
documents in response to the subpoena duces tecum issued by Plaintiff Bogart, LLC.

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DONE AND ORDERED in chambers in Miami, Florida, on March 19, 2012.

_________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
The Honorable Patricia A. Seitz,
United States District Judge
All counsel of record

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