Kantrow Spaht Weaver & Blitzer et al v. Fox

Filing 2

ORDER: The Plaintiff's (The Firms) shall serve both both Stewart, Robbins & Brown, LLC and Leslie B. Fox with a copy of the Motion to Compel no later than 2/9/2017. The Firms shall file proof of service with the Court no later than 2/10/2017. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/7/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

IN RE SUBPOENA DUCES TECUM
ISSUED TO STEWART ROBBINS &
BROWN, LLC IN THE MATTER OF
WEINER, WEISS & MADISON, APLC
AND KANTROW, SPAHT, WEAVER &
BLITZER (APLC) v. LESLIE B. FOX,
NO. 16-cv-850 (W.D. La. filed June 16, 2016)

MISCELLANEOUS ACTION

NO. 17-11-BAJ-RLB

ORDER
Before the Court is a Rule 45 Motion to Compel (R. Doc. 1) filed on February 1, 2017 by
Weiner, Weiss & Madison, APLC and Kantrow, Spaht, Weaver & Blitzer (APLC) (the Firms).
The Firms are plaintiffs in a pending civil action filed against Leslie B. Fox (Ms. Fox) in the
Western District of Louisiana for “breach of a contingency fee contract between the Firms and
[Ms.] Fox.” Complaint at 2, Weiner Weiss & Madison, APC v. Fox (Weiner v. Fox), No. 16-cv850 (W.D. La. June 16, 2016). During the course of discovery, the Firms issued a Rule 45
subpoena to non-party, Stewart, Robbins & Brown, LLC (Stewart), commanding that Stewart
produce certain documents in Baton Rouge, Louisiana on or before December 9, 2016. (R. Doc.
1-3). Following Stewart’s timely objection to the subpoena (R. Doc. 1-4), the Firms filed the
instant Motion to Compel Stewart’s response. (R. Doc. 1).
Rule 45(d)(2)(B)(i) of the Federal Rules of Civil Procedure states: “At any time, on
notice to the commanded person, the serving party may move the court for the district where
compliance is required for an order compelling production or inspection.” Fed. R. Civ. P.
45(d)(2)(B)(i) (emphasis added). In other words, a court may not order compliance with a
subpoena under Rule 45, unless the subpoenaed party and the parties to the action have first been

provided notice of the motion to compel. See Beare v. Millington, No. 07-3391, 2010 WL
234771, at *5 (E.D.N.Y. Jan. 13, 2010) (“there is no indication that plaintiffs serve the motion to
compel upon [the non-parties]. Thus, the motion to compel is denied without prejudice to
renewal.”); Davis v. Brown, No. 12-1906, 2013 WL 1933850, at *2 (E.D.N.Y. May 9, 2013)
(denying pro se plaintiffs Rule 45 motion to compel against non-party because “there is no proof
that the [non-party] was ever served with this motion.”); Patrick Collins, Inc. v. Joan Does 3451, No. 11-2143, 2012 WL 993379, at *1-2 (S.D. Ca. March 23, 2012) (noting that Rule
45(d)(2)(B)(i) requires notice to the responsive party of the motion to compel); Advisory
Committee Note to Rule 45 (“Subdivision [(d)](2)(B) . . . is designed to assure that a nonparty
servee be notified; it does not dispense with service of the notice of motion on the parties as
well”).
Here, the record does not indicate that the non-party, Stewart, Robbins & Brown, LLC,
has been served with a copy of the Firms’ Motion to Compel, as required by Rule 45(d)(2)(B)(i).
The record likewise does not indicate that Leslie B. Fox, the defendant in the action pending in
the Western District, has been served with a copy of the Motion.1 Therefore,
IT IS ORDERED that the Firms shall serve both Stewart, Robbins & Brown, LLC and
Leslie B. Fox with a copy of the Motion to Compel no later than February 9, 2017. The Firms
shall file proof of service with the Court no later than February 10, 2017.
Signed in Baton Rouge, Louisiana, on February 7, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
1

The Certificate of Service to the instant motion indicates that the motion was filed in the Western District of
Louisiana and served on opposing counsel “by either electronic notification or by U.S. Mail.” (R. Doc. 1 at 5)
(emphasis added). It is unclear why there appears to be some uncertainty as to how or whether opposing counsel
was notified. The certificate of service shall indicate how service was made.