Ahrens v. CAMICO Mutual Insurance Company

Filing 109

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to Amend (Doc. No. 64) is STAYED until such time as the Missouri Supreme Court issues its decision in Allen v. Bryers, No. WD 77905, 2015 WL 5439944 (Mo. Ct. App. Sept. 15, 2015), rehg granted sub nom. Allen v. Atain Specialty Ins. Co., No. SC 95358. IT IS FURTHER ORDERED that Plaintiffs Motion to Compel (Doc. No. 70), CAMICOs Motion for Protective Order (Doc. No. 73), and CAMICOs Motion to Compel (Doc. No. 88) are DENIED without prejudice, subject to the parties upcoming meet and confer on discovery issues. IT IS FURTHER ORDERED that Movant Missouri Department of Labors Motion to Quash Subpoena (Doc. No. 87) is GRANTED. IT IS FINALLY ORDERED that the Co urts Second Amended Case Management Order (Doc. No. 106) is amended as follows: the dates for mediation referral and completion, and the deadline for dispositive motions, are VACATED, to be reset at a future time. Signed by District Judge John A. Ross on 5/12/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PATRICIA AHRENS, individually and as
TRUSTEE OF PATRICIA AHRENS
REVOCABLE LIVING TRUST dated
April 4, 2007,

)
)
)
)
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Plaintiff,
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v.
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SWINBURNE & JACKSON LLP,
)
)
Defendant-Third Party
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Plaintiff-Debtor,
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v.
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NICHOLAS WAYNE BORUSIEWICH and )
BORSUIEWICH & COLE PC,
)
)
Third Party Defendants)
Debtors,
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)
CAMICO MUTUAL INSURANCE CO.,
)
)
Garnishee.
)

No. 4:15-CV-130-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the following motions: Plaintiff’s Motion to Amend
Complaint (Doc. No. 64); Plaintiff’s Motion to Compel (Doc. No. 70); Garnishee CAMICO
Mutual Insurance Company’s (“CAMICO”) Motion for Protective Order (Doc. No. 73); Movant
Missouri Department of Labor’s Motion to Quash Subpoena (Doc. No. 87); and, CAMICO’s
Motion to Compel (Doc. No. 88). Additionally, during the Court’s recent telephone conference
with the parties, Defendant orally moved for an extension of some of the deadlines in the
Court’s Second Amended Case Management Order (Doc. No. 106). For the reasons stated

herein, and pursuant to the conference held on May 11, 2016, the Court will address these
motions as follows.
First, with regard to Plaintiff’s Motion to Amend Complaint (Doc. No. 64), the Court is
aware, and the parties also acknowledge, that the issues presented are likely to be directly
impacted by the Missouri Supreme Court’s consideration of Allen v. Bryers, No. WD 77905,
2015 WL 5439944 (Mo. Ct. App. Sept. 15, 2015), reh’g granted sub nom. Allen v. Atain
Specialty Ins. Co., No. SC 95358. The Missouri Supreme Court heard argument in that case on
May 4, 2016, and it has been submitted for decision. Therefore, the Court will stay Plaintiff’s
motion until such time as the Missouri Supreme Court enters a decision.
Next, the parties have been instructed to meet and confer regarding outstanding discovery
disputes, including those raised in Plaintiff’s Motion to Compel (Doc. No. 70), CAMICO’s
Motion for Protective Order (Doc. No. 73), and CAMICO’s Motion to Compel (Doc. No. 88).
Therefore, the Court will deny without prejudice those motions.
The Court will grant Movant Missouri Department of Labor’s Motion to Quash
Subpoena (Doc. No. 87). The subpoena in question seeks records from the Missouri Department
of Labor, namely wage and contribution forms filed by Borusiewich & Co., P.C., and
Borusiewich & Cole, P.C., from 2003 to the present. These records are generally privileged
under federal law and, pursuant to federal regulation, may not be disclosed to a third party by
use of subpoena. See 20 CFR Part 603. Very limited exceptions are available with regard to
this privilege; specifically, a relevant exception exists only if “a court has previously issued a
binding precedential decision that requires disclosure of this type, or a well-established pattern
of prior court decisions have required disclosures of this type[.]” 20 CFR Part 603.7(b)(1).
CAMICO’s response to the motion to quash failed to proffer the sort of decision or decisions

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that might qualify the instant matter for the regulatory exception. CAMICO cited a single case,
from the District of Maine, in support of its position that the regulatory privilege should not
apply. Even assuming that the case supports CAMICO’s argument—which the Court does not
necessarily find—a single case from another district court is neither binding precedent on this
Court, nor does it constitute an established pattern of prior court decisions.

The Court

determines that regulatory privilege applies to the requested documents, and the exception
contemplated in 20 CFR Part 603.7(b)(1) is not applicable. This is particularly true in a situation
like this one, where the information sought is otherwise readily available. Thus, the motion to
quash the subpoena will be granted.
Finally, the Court will grant limited modifications to the case deadlines. The dates for
mediation referral and completion set forth in the case management order will be vacated, as will
the deadline for dispositive motions.

These deadlines will be rescheduled following the

completion of discovery. However, the deadline for completing discovery set forth in the case
management order shall remain in place, subject to the Court’s reconsideration upon a future
motion by either party.
Conclusion
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Amend (Doc. No. 64)
is STAYED until such time as the Missouri Supreme Court issues its decision in Allen v.
Bryers, No. WD 77905, 2015 WL 5439944 (Mo. Ct. App. Sept. 15, 2015), reh’g granted sub
nom. Allen v. Atain Specialty Ins. Co., No. SC 95358.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel (Doc. No. 70),
CAMICO’s Motion for Protective Order (Doc. No. 73), and CAMICO’s Motion to Compel

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(Doc. No. 88) are DENIED without prejudice, subject to the parties’ upcoming meet and
confer on discovery issues.
IT IS FURTHER ORDERED that Movant Missouri Department of Labor’s Motion to
Quash Subpoena (Doc. No. 87) is GRANTED.
IT IS FINALLY ORDERED that the Court’s Second Amended Case Management
Order (Doc. No. 106) is amended as follows: the dates for mediation referral and completion,
and the deadline for dispositive motions, are VACATED, to be reset at a future time.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 12th day of May, 2016.

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