Westmore Equities, LLC v. Village of Coulterville et al
Filing
76
ORDER DENYING 65 Motion to Vacate and to Transfer Motion to Quash to Western District of Missouri. Signed by Magistrate Judge Donald G. Wilkerson on 2/22/2016. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WESTMORE EQUITIES, LLC,
Plaintiff,
v.
VILLAGE OF COULTERVILLE,
Defendant/Third-Party Plaintiff,
v.
MORAN ECONOMIC DEVELOPMENT,
LLC,
Third-Party Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 3:15-cv-241-MJR-DGW
ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is Third Party Defendant Moran Economic Development,
LLC’s (“Moran”) Motion to Vacate Order on Motion To Quash Subpoena, and to Transfer
Motion to Quash Subpoena, Pursuant to 28 U.S.C § 1631 to the United States Court for the
Western District of Missouri (Doc. 65). For the reasons set forth below, Moran’s Motion to
Vacate and Transfer is DENIED.
BACKGROUND
In this action, Westmore Equities, LLC (“Westmore”) filed suit against the Village of
Coulterville (“the Village”) for failing to perform on a contract involving tax increment
financing. Subsequently, the Village, acting as a third party plaintiff, sued Moran alleging,
among other things, fraudulent inducement of its contract with Westmore.
In January, 2016,
the Village issued a subpoena to a non-party in this action, Commerce Bank, seeking financial
Page 1 of 6
information about Moran (“the Subpoena”). On January 15, 2016 Moran filed a motion to
quash the Subpoena issued to Commerce Bank.
After the issues were fully briefed, this Court
held a hearing on Moran’s motion to quash on January 21, 2016. The Court then issued an order
granting the motion in part and denying the motion in part (Doc. 63). Specifically, the Court
ruled in pertinent part,
. . . the Village is ORDERED to reissue its subpoena to Commerce Bank by January
29, 2016, with an amendment of the time period for which documents are sought
from the inception of Moran Economic Development, LLC to the present. The
Village is ORDERED to provide that Commerce Bank’s response is due twenty
days from the date of issuance. The Court is inclined to enter a protective order
concerning the documents produced by Commerce Bank in response to the
Village’s Subpoena. Accordingly, Moran and the Village are ORDERED to
provide the Court with a joint proposed protective order, or, if the parties cannot
agree on a proposed protective order, both Moran and the Village shall submit their
own proposed protective order.
The Village reissued the Subpoena in compliance with the undersigned’s order on January
26, 2016 (Doc. 70-1). On February 1, 2016 Moran filed a motion to Vacate Order on Motion to
Quash Subpoena, and to Transfer Motion to Quash Subpoena Pursuant to 28 U.S.C. § 1631, to the
United States District Court for the Western District of Missouri (Doc. 65). On February 5, 2016,
the Village of Coulterville filed its response (Doc. 69).
DISCUSSION
In its Motion to Vacate, Moran requests that this Court vacate its previous order allowing
the Village to proceed with the Subpoena issued to Commerce Bank arguing, for the first time,
that the Court lacks subject matter jurisdiction to hear the matter. This argument is wholly
without merit.1
Moran cites Federal Rules of Civil Procedure 45(c)(2)(A) and 45(d)(3), as well as 28
1 The Court notes that discovery has closed in this matter. The trial date is rapidly
approaching and Moran is faced with an order it does not agree with.
2
U.S.C. § 1631 as the basis for its argument seeking to vacate and transfer. At the outset, the Court
finds that 28 U.S.C. §1631 is inapplicable in this instance as it relates to the transfer of civil actions
or petitions for review of administrative actions, not motions such as the one at issue here.
Accordingly, the Court finds that 28 U.S.C. §1631 does not provide, or require, that this Court’s
Order be vacated or that Moran’s Motion to Quash be transferred to another district.
The crux of Moran’s argument, however, is based on Rule 45(d)(3) of the Federal Rules of
Civil Procedure. Rule 45(d)(3), states, in pertinent, that the court the district where compliance is
required must quash or modify a subpoena. Moran argues that because the subpoena was
addressed to Commerce Bank in Kansas City, Missouri, the Western District of Missouri is the
court where compliance is required and, therefore, the motion to quash should be transferred there
and the Court’s previous order should be vacated as a nullity. In support of its argument, Moran
cites Agincourt Gaming, LLC v. Zynga, Inc., a case out of the United States District Court, District
of Nevada. In Agincourt, the District of Nevada found it lacked jurisdiction to rule on pending
subpoena-related motions to the extent they related to respondents who either resided and/or
worked in the Northern District of California. 2014 WL 4079555, *4 (D. Nev. August 15, 2014).
The Court noted, in particular, that the subpoena respondents were required to produce documents
at a law office within the Northern District of California. Id. *3-4. The circumstances presented
here are wholly different than those presented in Agincourt.
In the case at bar, the subpoena was issued by the United States District Court for the
Southern District of Illinois to Commerce Bank at an address located in Kansas City, Missouri.
To comply with the Subpoena, Commerce Bank was directed to provide “[a]ll documentation
pertaining to Accounts maintained for Moran Economic Development, LLC” to Schuering Law,
3
Ltd., Post Office Box 9622, Springfield, Illinois 62791-9622 (Docs. 52-3 and 70-1). Thus, the
place of compliance is Springfield, Illinois. See FED. R. CIV. P. 45(c) advisory committee’s note
(2013); see also Woods ex rel. U.S. v. SouthernCare, Inc., 303 F.R.D. 405 (N.D. Ala. November 4,
2014). On this basis alone, the Court finds that Moran’s request to transfer its motion to quash to
the Western District of Missouri is DENIED.
For subpoenas seeking the production of documents, electronically stored information, or
tangible things, the place of compliance must be “within 100 miles of where the person resides, is
employed, or regularly transacts business in person.” FED. R. CIV. P. 45(c)(2)(A). A subpoena
that commands production outside these limits must be quashed or modified.
FED. R. CIV. P.
45(d)(3)(A)(ii). Importantly, the 2013 Advisory Committee Notes make clear that, while the
rule now specifies default geographic limits on place of production, it is expected that lawyers
will continue to cooperate and use common sense to facilitate the sensible production of
documents and ESI and avoid putting nonparties to any unnecessary expense. 1 Fed. R. Civ. P.,
Rules and Commentary, Rule 45, February 2016 Update (emphasis added) (noting that the new
scheme for production of documents via subpoena puts in place clear geographic limits on where
the recipient of the subpoena can be required to produce documents, but the practical reality is
that documents can be readily copied and shipped across the country via mail, courier, or others
means); see Fed. R. Civ. P. 45 advisory committee's note (2013).
Here, as mentioned above, the place of compliance is Springfield, Illinois. A search of
Commerce Bank’s branch locator reveals there are branches in Pekin, Bloomington, Normal,
Peoria, Metamora, Edwardsville, Lexington, Champaign, and Roanoke, Illinois — locations all
within 100 miles of Springfield, Illinois. Accordingly, the Court finds that Commerce Bank
4
regularly transacts business within 100 miles of Springfield, Illinois and, as such, the subpoena
issued to Commerce Bank was valid. Moreover, the Court takes judicial notice that Springfield,
Illinois is within the 100 mile geographic limit of this District, as required by Rule 45 2 .
Accordingly, the Court finds that it has appropriate jurisdiction to address the motions concerning
said subpoena.
The Court further notes that it would be remiss if it did not address the practical aspects of
Moran’s Motion. While the Court is cognizant that a party may not waive subject matter
jurisdiction, the Court must point out that it is troubling that this issue was not raised when
Moran’s motion to quash was briefed or argued. As stated earlier, this matter is fast approaching
trial and, if the Court were to reach the result that Moran requests, it would only delay the matter in
this Court while the motion to quash was unnecessarily reheard and give Moran a second bite at
the apple in a different forum. The Court finds that such a result is in contravention of Rule 1 of
the Federal Rules of Civil Procedure, which prescribes that the Rules “should be construed and
administered to secure the just, speedy, and inexpensive determination of every action and
proceeding.” As stated earlier, with this Court’s emphasis added, the Federal Rules, and Rule 45
in particular, anticipates that lawyers will cooperate and use common sense. This Court expects
no less.
CONCLUSION
Based on all the foregoing, Moran’s Motion to Vacate Order on Motion To Quash
Subpoena, and to Transfer Motion to Quash Subpoena, Pursuant to 28 U.S.C § 1631 to the
United States Court for the Western District of Missouri (Doc. 65) is DENIED.
2
The response
A search of www.google.com/maps indicates that Springfield, Illinois 62791 is 97.2 miles from
the Southern District of Illinois, East St. Louis, Illinois Courthouse.
5
deadline for the Subpoena issued to Commerce Bank is no longer stayed.
Any response shall
be provided by February 29, 2016.
IT IS SO ORDERED.
DATED: February 22, 2016
DONALD G. WILKERSON
United States Magistrate Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?