Greenwood Leflore Hospital et al v. O'Bryant

Filing 6

ORDER granting 4 Motion for Sanctions. Signed by Magistrate Judge Jane M. Virden on 11/6/17. (bfg)

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

MOVANTS 

GREENWOOD LEFLORE HOSPITAL,
DR. ASA BENNETT, DR. BRUCE NEWELL,  
DR. CRAIG CLARK, AND DR. RAVI PANDE 
VS.

CIVIL ACTION NO. 4:17-mc-01-DMB-JMV
RESPONDENT 

TIMOTHY G. O’BRYANT
IN RE:  
 IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS DIVISION

PLAINTIFF 

TIMOTHY G. O’BRYANT

VS.

GRAY INSURANCE COMPANY, ENI 
U.S. OPERATING CO., LONGNECKER, 
ET AL

CIVIL ACTION NO. 2016-CV-13203 

DEFENDANTS 

_____________________________________________________________________________
ORDER ON MOTION FOR SANCTIONS
____________________________________________________________________________ 
This matter is before the Court on Plaintiff’s Motion for Sanctions— supplementing the
[1] Emergency Motion to Quash Subpoenas. There were ample problems with the subpoenas at
issue here— they are thoroughly delineated in the emergency motion to quash. The most disturbing
of the litter will be discussed below. Having considered the motion, and corresponding briefing,
the Court finds that it is well taken and should be GRANTED.
Background
There was a personal injury action, O'Bryant v. Gray Ins. Co., No. 16-13203, 2017 U.S.
Dist. LEXIS 166592 (E.D. La. 2017), brought before the Eastern District of Louisiana. Plaintiff’s
attorney in that action, Louis Koerner Jr., who is not licensed to practice law in the Northern
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District of Mississippi federal courts, procured from the clerk of this court a number (at least 6)
of the Administrative Office-approved form of subpoenas to appear and testify at a hearing or trial
in the United States District Court of Mississippi. According to the subpoenas, as prepared by Mr.
Koerner, a number of physicians who reside in Greenwood MS were commanded by this court to
“Appear and Testify at a Hearing or Trial in a Civil Action” at Courtroom No. 329 in Greenville,
Mississippi at 9:00 a.m. on October 23, 2017. However, no trial or hearing or other matter had
ever been scheduled in Courtroom 329 at 9:00 a.m. on October 23, 2017.  
Upon notice of the subpoenas, defense counsel properly filed a miscellaneous motion with
this Court, the Court of the place of asserted compliance, and moved to quash the subpoenas and
requested attorney’s fees. After consideration of the motion, the Court granted the emergency
motion to quash and set the matter for a hearing to determine appropriate sanctions. Upon notice
of the hearing, Mr. Koerner replied to this Court by email stating, “The case has settled. The
matters are moot. Thank you for your help.” The Court promptly informed Mr. Koerner that the
matter would be taken up as noticed, his appearance was, in fact, required, and that his failure to
attend would result in further sanctions. Defense counsel submitted a supplemental motion for
sanctions prior to the hearing. Mr. Koerner submitting briefing before and after the hearing.  
Jurisdiction
According to Federal Rule of Civil Procedure 45:
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible
for issuing and serving a subpoena must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the subpoena. The court for the
district where compliance is required must enforce this duty and impose an
appropriate sanction—which may include lost earnings and reasonable attorney’s
fees—on a party or attorney who fails to comply.

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Fed. R. Civ. P. 45(d)(1)(emphasis added).
Plaintiff’s attorney, submitted the subpoenas at issue— and himself—to the jurisdiction of
this Court, when he, without any authority to do so, issued subpoenas from this court to appear in
this court for a trial in a case pending in Louisiana. Therefore, the matter is properly before this
Court.
Law and Analysis 
Federal Rule of Civil Procedure 45(a)(2) provides, “[A] subpoena must issue from the
court where the action is pending.” There are no actions pending in this District involving the
parties, the case number, or attorneys associated with the subpoenas.  
Moreover, Federal Rule of Civil Procedure 45(a)(3) provides, “The clerk must issue a
subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it
before service. An attorney also may issue and sign a subpoena if the attorney is authorized to
practice in the issuing court.” (emphasis added). The subpoenas at issue here bear the signature
of, and therefore were issued by, Attorney Koerner. However, Mr. Koerner is not authorized to
practice law in the in the Northern District of Mississippi.
In short, as is plain from the Rule, Mr. Koerner had absolutely no colorable basis for the
issuance of the subject subpoenas. Furthermore, the arguments advanced by Mr. Koerner to
support the issuance of the subpoenas are so ill founded such that they are also not colorable.
Indeed, the fact that Mr. Koerner continues to advance such meritless arguments to support the
issuance of the subpoenas is only further evidence of his apparent willingness to run roughshod
over the Federal Rules of Civil Procedure.

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Sanctions
Mr. Koerner’s actions have costs the movants the great expense of responding to the wholly
improper subpoenas. Defense counsel has submitted itemized fees and expenses to the court and
counsel opposite via electronic filing— totaling $3,413.00. Counsel for the Respondent has made
no objection to the reasonableness of the amount thereof. Therefore, sanctions are hereby awarded
to the movants in the full amount of attorney’s fees.
DEFENDANT IS, THEREFORE, ORDERED to pay Movants’ attorneys’ fees within
45 days of the date of this order.

SO ORDERED this, the 6th day of November, 2017.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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