Everlast Roofing, Inc. v. Wilson et al

Filing 14

ORDER Adopting 13 Report and Recommendation on 1 Motion to Quash. Closing Case. Signed by Judge K. Michael Moore on 8/30/2024. See attached document for full details. (gbn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:24-mc-22098-KMM
EVERLAST ROOFING, INC.,
Plaintiff,
v.
MATTHEW WILSON, et al.,
Defendants.

/

ORDER ON REPORT AND RECOMMENDATION
THIS CAUSE came before the Court upon Plaintiff Everlast Roofing, Inc.’s
(“Plaintiff”) Motion to Quash Non-Party Subpoena to Hurricane Engineering & Testing
Inc. and to Transfer pursuant to Fed. R. Civ. P. 45(f). (“Motion” or “Mot.”) (ECF No. 1).
The Court referred the Motion to the Honorable Marty Fulgueira Elfenbein, United
States Magistrate Judge, to take all necessary and proper action as required by law and/or
to issue a Report and Recommendation.

(ECF No. 4).

On July 29, 2024,

Magistrate Judge Elfenbein issued a Report and Recommendation, (“R&R”) (ECF No.
13), recommending that the matter be TRANSFERRED to the Middle District of
Pennsylvania for adjudication of the merits of Plaintiff’s Motion.

See R&R at 7.

Neither Defendants nor Plaintiff objected to the R&R. The matter is now ripe for
review. As set forth below, the Court ADOPTS the R&R.
I.

BACKGROUND
This case stems from a pending action in the United States District Court for the

Middle District of Pennsylvania (“MDPA Action”), where Plaintiff alleges claims of (1)
breach of contract; (2) misappropriation of trade secrets; (3) tortious interference with

contract; and (4) unfair competition. (ECF No. 1) at 5. Defendant Matthew Wilson
(“Wilson”) served Hurricane Engineering & Testing, Inc. (“Hurricane”), a non-party to the
MDPA Action, with a Subpoena to Produce Documents, Information, or Objects (the
“Subpoena”). R&R at 3. The Subpoena directed Hurricane to deliver the materials to
Wilson’s attorney’s office in Miami, Florida. Id. On May 31, 2024, Plaintiff moved to
quash the Subpoena pursuant to Rule 45(d)(3) and 26(c)(1) or to alternatively transfer the
Motion related to the Subpoena from the Southern District of Florida to the Middle District
of Pennsylvania, where the underlying action is pending pursuant to Rule 45(f). Id.
While the Motion was pending in this District, Plaintiff separately filed a parallel
Motion to Quash in the MDPA Action. Id. The district court in the MDPA Action denied
Plaintiff’s Motion to Quash, finding that it lacked jurisdiction under Rule 45 because the
Subpoena did not require compliance in the Middle District of Pennsylvania. Id. Plaintiff
has also filed similar motions to quash, or alternatively motions to transfer, related to
subpoenas issued to other non-parties in the Western District of Pennsylvania and the
Eastern District of Pennsylvania.
II.

LEGAL STANDARD
The Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). The Court “must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore
required if a party files “a proper, specific objection” to a factual finding contained in the
report. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that

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the objection be sufficiently specific and not a general objection to the report” to warrant
de novo review. Id.
Yet when a party has failed to object or has not properly objected to the magistrate
judge’s findings, “the court need only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.” See Keaton v. United States, No.
14-21230-CIV, 2015 WL 12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v.
Berryhill, No. 17-CV-24263, 2019 WL 2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating
that a district judge “evaluate[s] portions of the R & R not objected to under a clearly
erroneous standard of review” (citing Davis v. Apfel, 93 F. Supp. 2d 1313, 1317 (M.D. Fla.
2000))).
III.

DISCUSSION
As set forth in the R&R, Magistrate Judge Elfenbein recommends that Plaintiff’s

Motion be granted in part, that the Court should defer ruling on the Motion to Quash, and
transfer these proceedings to the Middle District of Pennsylvania. See generally R&R.
Specifically, the R&R sets forth that the Motion should be granted under Rule 45(f), which
provides that “[w]hen the court where compliance is required did not issue the subpoena,
it may transfer a motion under this rule to the issuing court if [1] the person subject to the
subpoena consents or [2] if the court finds exceptional circumstances.” Fed. R. Civ. P.
45(f). Here, non-party Hurricane consents to the Court transferring the Motion to the
Middle District of Pennsylvania. R&R at 5. Furthermore, Magistrate Judge Elfenbein sets
forth that “exceptional circumstances” justify the transfer of the proceedings to the Middle
District of Pennsylvania, given the presiding district court judge has familiarized herself

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with the issues in the Motion, has institutional knowledge about the case, and has already
been presented with parallel motions to quash. Id.
The Court received no objections to the aforementioned findings in the R&R. Upon
a review of the record, the Court finds no clear error with Magistrate Judge Elfenbein’s
findings.
IV.

CONCLUSION
Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of

the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND
ADJUDGED that the Report and Recommendation (ECF No. 13) is ADOPTED. The
Court DEFERS ruling on the Motion to Quash (ECF No. 1) and TRANSFERS these
proceedings to the Middle District of Pennsylvania. The Clerk of Court is INSTRUCTED
to ADMINISTRATIVELY CLOSE this case. All pending motions, if any, are DENIED
AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this _____
30th day of August,
2024.

K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE

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