North Alabama Fabricating Company, Inc. v. Bedeschi Mid-West Conveyor Company, LLC et al

Filing 74

MEMORANDUM AND ORDER denying without prejudice 70 Defendants' Objection to, and Motion to Quash Subpoena Duces Tecum Served Upon Essar. Signed by Magistrate Judge Teresa J. James on 9/26/2017. (byk)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS NORTH ALABAMA FABRICATING COMPANY, INC., Plaintiff, v. BEDESCHI MID-WEST CONVEYOR COMPANY, LLC; DEARBORN MID-WEST CONVEYOR COMPANY; LARRY HARP; and BRAXTON JONES, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-2740-DDC-TJJ MEMORANDUM AND ORDER This matter is before the Court on Defendants’ Objection to, and Motion to Quash Subpoena Duces Tecum as Served Upon Essar Products (USA) LLC (ECF No. 70). Defendants request an order pursuant to Fed. R. Civ. P. 45 quashing the subpoena served by Plaintiff upon non-party Essar Products (USA) LLC (“Essar”). As a preliminary matter, the Court finds Defendants have standing to move to quash or object to the Essar subpoena. Generally, only the party or person to whom the subpoena is directed has standing to move to quash or otherwise object to a subpoena.1 “A motion to quash or modify a subpoena duces tecum may only be made by the party to whom the subpoena is directed except where the party seeking to challenge the subpoena has a personal right or privilege with respect to the subject matter requested in the subpoena.”2 Because the information requested from non-party Essar includes contracts, invoices, correspondence and other documents between Essar and 1 Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 590 (D. Kan. 2003). 2 Id. Defendant Bedeschi, the Court finds that Defendants have a personal right with respect to the documents and ESI requested in the Essar subpoena. This right gives them standing to object to the issuance of the subpoena. The Court next considers whether it has authority to rule on the motion. Federal Rule of Civil Procedure 45(d)(3)(A), which was amended effective December 1, 2013, provides: On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.3 Rule 45(f) sets out the circumstances for transfer of a subpoena-related motion from the district where compliance is required to the district that issued the subpoena. The basis for Defendants’ motion to quash the Essar subpoena is that Plaintiff served the subpoena three days before the September 22, 2017 discovery deadline and therefore the October 3, 2017 compliance date will be after the discovery period has closed. The Court construes Defendants to be arguing the Essar subpoena fails to allow a reasonable time for compliance. As this is one of the grounds for quashing or modifying a subpoena under Rule 45(d)(3)(A)(i), it requires action by the court for the district where compliance with the subpoena is required. The subpoena that Defendants seek to quash was issued from the District of Kansas but commands Essar, a company with a Minnesota addresses, to produce ten requested categories of 3 Emphasis added. Rule 45 was amended effective December 1, 2013. Prior to the 2013 amendment, this Rule required the court issuing the subpoena to quash or modify the subpoena. See pre-2013-amendment Fed. R. Civ. P. 45(c)(3)(A) (2012). 2 documen and electr nts ronically sto ored informat tion (“ESI”) for inspecti in Duluth Minnesota 4 ) ion h, a. Because the subpoen requires Essar produce the request documen and ESI i Minnesota, the na E e ted nts in a res nce esota and not Kansas. t subpoena thus requir complian in Minne Absent any in A ndication the motion to quash the Ess subpoena was transfe e q sar a erred to this C Court pursuant to Rule 45(f from the district where complianc is required this Court is without f) d ce d, authority to rule on th motion to quash the subpoena and therefore, will not rul on the y he o s d, , le substanti argument asserted by Defendant relating to the motion.5 ive ts b ts o IT IS THERE T EFORE OR RDERED th Defendan Defendan Objectio to, and M hat nts’ on Motion nts’ to Quash Subpoena Duces Tecum as Served Upon Essar ( h D m U (ECF No. 70 is denied w 0) without preju udice. Dated this 26th day of Se D eptember 201 at Kansa City, Kans 17, as sas. Teresa J. James U. S. Mag gistrate Judg ge 4 See Subpoen ECF No. 70-1. na, 7 5 Tomelleri v. Zazzle, Inc., No. 13-cv-2576-EFM-TJJ, 2015 WL 40 N , 00904, at *2 ( Kan. Jan. 28, (D. 2015). 3

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