Hoffman v. State Farm Fire & Casualty Company et al

Filing 19

ORDER denying 10 Motion to Quash Subpoena Duces Tecum. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 8/5/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JANA HOFFMAN

CIVIL ACTION

VERSUS

NO. 15-309-JWD-RLB
C/W
NO. 15-473-JWD-RLB

STATE FARM FIRE &
CASUALTY COMPANY, ET AL.

This Order Pertains to
NO. 15-309-JWD-RLB
ORDER
Before the court is Plaintiff’ Motion to Quash Subpoena Duces Tecum. (R. Doc. 10).
The motion is opposed. (R. Doc. 18). For the following reasons, Plaintiff’s Motion is DENIED.
On April 22, 2015, Jana Hoffman (“Plaintiff”) filed this action in the 18th Judicial
District Court for the Parish of Iberville, Louisiana, seeking coverage under a homeowner’s
policy issued by defendant State Farm and Fire Casualty Company (“State Farm”) after her
house burned down. (R. Doc. 1-2).
On May 18, 2015, State Farm removed the action on the basis of diversity jurisdiction
under 28 U.S.C. § 1332(a). (R. Doc. 1).
On June 16, 2015, Plaintiff moved to remand the action to state court on the basis that
there is not complete diversity. (R. Doc. 2).
On June 24, 2015, the court ordered the parties to submit a status report by August 6,
2015 and set a scheduling conference for August 20, 2015. (R. Doc. 4). The record is unclear as
to when the parties held a conference pursuant to Rule 26(f)(1) of the Federal Rules of Civil
Procedure. 1
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Plaintiff does not argue that the parties did not hold a Rule 26(f)(1) discovey conference prior to the
commencement of third-party discovery by State Farm. Accordingly, the court need not determine,

On July 16, 2015, Plaintiff filed the instant motion, requesting the court to temporarily
“quash” subpoenas duces tecum issued by State Farm on 21 third parties located throughout
Louisiana, as well as in Texas, Missouri, Colorado, and Indiana, until 21 days after the court
rules on Plaintiff’s motion to remand. (R. Doc. 10). In support of the motion, Plaintiff argues
that State Farm “has prematurely initiated discovery without regard” to a determination on this
court’s subject matter jurisdiction. (R. Doc. 10-1 at 1). Plaintiff states that she “believes that
several of these subpoenas are subject to being quashed, but that issue should be decided by the
court that will ultimately hear the case.” (R. Doc. 10-1 at 1). Plaintiff states that by granting the
requested relief, Plaintiff will have “the opportunity to properly brief the issue for the Court
which should be the court to decide them.” (R. Doc. 10-1 at 2).
Plaintiff’s memorandum in support consists of three paragraphs. Plaintiff did not attach
the subpoenas at issue. Plaintiff did not indicate the dates on which the subpoenas were served
by State Farm. Other than providing in a footnote that State Farm has issued subpoenas to Chase
Bank to obtain records of an individual named Sam Moody, Plaintiff does not identify the
documents and information sought by State Farm through the subpoenas.
Plaintiff’s motion to quash essentially seeks a stay of third-party discovery pending the
resolution of his motion to remand. Accordingly, Plaintiff’s motion will be construed as a
motion for protective order pursuant to Rule 26(c).
On July 23, 2015, the undersigned issued a Report and Recommendation to the district
judge recommending that Plaintiff’s motion to remand should be denied. (R. Doc. 16). As of
the date of this Order, Plaintiff’s motion to remand remains pending.

pursuant to the instant motion, whether State Farm was premature in commencing third-party discovery.
See Fed. R. Civ. P. 26(d)(1) (“A party may not seek discovery from any source before the parties have
conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule
26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.”).

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On August 4, 2015, State Farm filed its Opposition to the instant motion. (R. Doc. 18).
State Farm indicates that the Rule 45 subpoenas were issued on June 16, 2015, with copies
provided to Plaintiff’s counsel that same day, and compliance was sought in Baton Rouge,
Louisiana by July 17, 2013. (R. Doc. 18 at 3; see R. Doc. 18-1 at 10-30). Furthermore, State
Farm indicates that on July 16, 2015, Plaintiff filed his motion to remand and requested the
subpoenaed third parties to suspend efforts to comply with the subpoenas until receiving a court
order to do so. (R. Doc. 18 at 3; see R. Doc. 18-1 at 31-52). State Farm further indicates that the
parties have been engaged in written discovery and State Farm has subpoenaed certain phone
records without objection by Plaintiffs. (R. Doc. 18 at 2-3; see R. Doc. 18-1 at 3-9).
State Farm raises several interrelated arguments for why Plaintiff’s motion should be
denied. First, State Farm argues that Plaintiff’s motion is necessarily brought pursuant to Rule
26 (as opposed to Rule 45) and, accordingly, was required to provide a Rule 26(c)(1)
certification. (R. Doc. 18 at 2). State Farm concedes, however, that the parties held a conference
in which they discussed the subpoenas at issue, and that Plaintiff’s counsel represented at the
conference “that he did not have an issue with the subpoena duces tecumes that had been
issued.” (R. Doc. 18-2). Second, State Farm argues that Plaintiff’s motion is untimely pursuant
to Rule 26 (because it was not filed in a reasonable time considering the return date) or untimely
pursuant to Rule 45 (because Plaintiff did not make an “objection” within 14 days after the
subpoena was served). 2 Third, State Farm argues that Plaintiff may not have standing to object
to the subpoenas pursuant to Rule 45. (R. Doc. 18 at 5).

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See Fed. R. Civ. P. 45(d)(2)(B) (providing that objections to an subpoena “must be served before the
earlier of the time specified for compliance or 14 days after the subpoena is served).

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State Farm requests that the court not only deny the motion to quash, but also require
Plaintiff to submit to write the subpoenaed third parties and advise them of the instant Order. (R.
Doc. 18 at 5).
Rule 26(c) allows the court to issue a protective order after a showing of good cause “to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(c)(1). Rule 26(c)’s “good cause” requirement indicates that the
party seeking a protective order has the burden “to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact as distinguished from stereotyped
and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting
United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)). “A trial court has broad
discretion and inherent power to stay discovery until preliminary questions that may dispose of
the case are determined.” Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987).
Plaintiff has not established good cause for the requested stay. Despite having been
apprised of the subpoenas on the date they were issued, Plaintiff waited until the day before the
date of compliance to file the instant motion. Plaintiff did not seek expedited consideration of
his motion. According to Defendants, many of the subpoenaed third parties have already
responded to their subpoenas. (R. Doc. 18 at 3). The filing of a motion to remand does not
automatically stay discovery. Plaintiff provides no analysis or legal support in support of a stay
of third-party discovery given the procedural posture of this case. In light of the record, and the
impracticalily of staying third-party discovery after many third parties have responded to
subpoenas, the court will not issue the relief requested.
Although the court is denying Plaintiff’s motion, it will not require Plaintiff (as requested
by State Farm in its Opposition) to provide any third parties with a copy of this Order. State

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Farm may address any issues with regard to non-compliance with its subpoenas through its own
communications with the third parties and, if necessary, through the filing of an appropriate
motion pursuant to Rule 45.
IT IS ORDERED that Plaintiff’s Motion is DENIED.
Signed in Baton Rouge, Louisiana, on August 5, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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