Shipes et al v. Amurcon Corporation

Filing 71

ORDER denying 55 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Allison Shipes, et al.,
Plaintiffs,
vs.
Amurcon Corp.,

Civil Action No. 10-14943
District Judge Victoria A. Roberts
Magistrate Judge Mona K. Majzoub

Defendant.
_____________________________/
ORDER
Before the Court is Plaintiffs’ “motion to compel audio tapes from third-party witness.”1
(Dkt. 55.) The Court has been referred this motion for determination pursuant to 28 U.S.C. §
636(b)(1)(A). (Dkt. 63.) The Court has reviewed the pleadings, dispenses with a hearing, and
issues this order.2 Because the Court finds that Plaintiffs have failed to issue a subpoena for the
production of the tapes from a non-party, making this motion not procedurally proper, the Court is
unable to grant Plaintiffs the relief they request. The Court therefore denies Plaintiffs’ motion to
compel.
I.

Background
On August 19, 2011 Plaintiffs issued a subpoena to Gene Farkas, Defendant’s former Vice-

President of Human Resources. (Pls.’ Mot. at 1.) Plaintiffs were requesting Mr. Farkas to produce

1

Although Plaintiffs have stated that the witness is a “third-party witness,” the subject,
Mr. Gene Farkas, is actually not a party to this case.
2

The Court dispenses with a hearing pursuant to Eastern District of Michigan Local Rule
7.1(f)(2).
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two audio recording tapes that they believed were relevant to the case. (Id.) On September 1, 2011
Defendant filed an emergency motion to quash Plaintiffs’ subpoena, claiming the attorney-client
privilege prohibited disclosure of the the audio recordings in Mr. Farkas’s possession. (Id.) On that
same day, Judge Cleland quashed the subpoena.3 (Id.) In Judge Cleland’s order, he stated that he
“will grant the motion subject to further possible motion practice before Judge Roberts and quash
the subpoena of Mr. Gene Farkas at this time.” (Dkt. 40, Cleland’s Order at 1.) Judge Cleland
concluded, “[i]f [] Plaintiffs wish to re-file or otherwise pursue the objects of this subpoena, counsel
should contact Judge Roberts’s case manager . . . for further direction.” (Id. at 4.) Nothing
happened regarding this audio recording issue until Plaintiffs filed this motion to compel on
February 23, 2012. (Dkt. 55, Pls.’ Mot.) Plaintiffs have not requested a new subpoena, stating that
“[i]nstead of reissuing another subpoena that would surely draw another objection, Plaintiffs decided
to file this motion.” (Pls.’ Mot. at 1.)
II.

Analysis
While Plaintiffs and Defendant present various arguments for and against granting this

motion, the Court ultimately agrees with Defendant on its first, most basic argument–Plaintiffs’
motion is procedurally improper because the Court cannot grant a motion to compel discovery from
a non-party when no underlying subpoena exists. See Smith v. Florida Dep’t of Corr., 369 F. App’x
36, 38 (11th Cir. 2010) (holding that the district court did not abuse its discretion when it denied the
plaintiff’s motion to compel discovery because the plaintiff failed to pay the fee required for the
subpoena to issue.) See also Myers v. Andzel, 06-14420, 2007 WL 3256879, at * 1 (S.D.N.Y. Oct.

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Plaintiffs state that Judge Roberts, the district judge presiding over this case, was
unavailable for ruling.
2

15, 2007) (quoting Lehman v. Kornblau, 206 F.R.D. 345, 346 (E.D.N.Y. 2001) (“Discovery of nonparties must be conducted by subpoena pursuant to [Rule 45].”). Without a subpoena, “[a]ny
interrogatories or requests for production of documents served on non-parties are a nullity.” Lehman
v. Kornblau, 206 F.R.D. 345, 346 (E.D.N.Y. 2001).
Plaintiffs argue that Judge Cleland’s order gives them the right to directly file this motion
to compel. Plaintiffs have misread Judge Cleland’s order–the order does not give Plaintiffs the right
to circumvent the Federal Rules. Plaintiffs must file a subpoena for discovery from a non-party such
as Mr. Farkas. The Court acknowledges that the procedural hurdle of getting a subpoena will most
likely lead to an objection, which will most likely lead to another motion to compel in front of this
Court, but the Federal Rules’s hurdles exist for a reason, and a party cannot leap over them so
haphazardly. See In re Northfield Laboratories, Inc. Securities Litigation, 06-1493, 2012 WL
266852, at *8 (N.D.Ill. Jan. 31, 2012) (“Generally, to obtain discovery from nonparties, a party must
first issue a subpoena, pursuant to Rule 45. To obtain an order compelling compliance with such
a subpoena, a party must file a motion to compel.”).
The Court therefore DENIES Plaintiffs’ motion.
NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days
from the date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).
Dated: April 9, 2012

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
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I hereby certify that a copy of this Order was served upon Counsel of Record on this date.
Dated: April 9, 2012

s/ Lisa C. Bartlett
Case Manager

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