Filing 25

ORDER denying 21 Motion for Attorney Fees. Ordered by Judge Clay D. Land on 10/12/2012.(aaf)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION DIANE LISCAR and ERIC LISCAR, * Plaintiffs, * vs. * CASE NO. 4:12-CV-8 (CDL) PEDIATRIC ACUTE CARE OF * COLUMBUS, P.C., BEN OVERBY, and KIM OVERBY, * Defendants. * O R D E R On July 25, 2012, the Court granted Defendant Pediatric Acute Care of Columbus, P.C.’s (“Defendant”) motion to compel (ECF No. 16) Hospital”) to non-party produce Order, ECF No. 20. Martin Army documents Community and respond Hospital to (“the discovery. Defendant then filed a motion for attorney’s fees against the Hospital (ECF No. 21), requesting its fees and costs in the amount of $316.00 incurred in conjunction with its motion to compel. For the following reasons, Defendant’s request is denied. Defendants served the non-party Hospital with subpoenas duces tecum pursuant to Federal Rule of Civil Procedure 45, seeking records. Plaintiffs See Diane Liscar and Eric Liscar’s medical Defs.’ Mot. to Compel Docs. Against Non-Party Martin Army Community Hospital [hereinafter Mot. to Compel] Ex. A, Subpoena, ECF No. 16-1 (seeking D. Liscar’s medical records); Mot. to Compel Ex. B, Subpoena, ECF No. 16-2 at 2 (seeking E. Liscar’s medical records). respond, Defendant moved to After compel with the subpoenas duces tecum. The Court then ordered the the the Hospital failed Hospital’s to compliance Mot. to Compel 1, ECF No. 16. Hospital records requested by the subpoenas. to produce the medical Order 2, ECF No. 20. Defendant moves the Court for an award of fees and costs under Federal Rule of Civil Procedure 37. Rule 37 permits an award of attorney’s fees and costs to the moving party if the Court grants a motion to compel pursuant to that rule. Civ. P. 37(a)(5)(A). Rule 37, however, does not Fed. R. apply to motions to compel compliance with a subpoena duces tecum issued pursuant to Rule 45. See Fed. R. Civ. P. 37(a)(3) (enumerating motions to which Rule 37 applies). Rule 45, which does apply, provides that a non-party’s failure to obey a subpoena without excuse can subject that nonparty to contempt. Fed. R. Civ. P. 45(e). Court found the proper remedy for In this case, the the Hospital’s failure to comply initially with the subpoenas to be an order from the Court directing the Hospital to comply. with that order of the Court. The Hospital did comply Under these circumstances, the Court finds that any additional remedy is not warranted, and 2 therefore, Defendant’s request for attorney’s fees and costs (ECF No. 21) is denied. IT IS SO ORDERED, this 12th day of October, 2012. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 3

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