Wright v. Northwestern Mutual Life Insurance Company, et. al.

Filing 14

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Compel Compliance with Third-Party Subpoenas Issued in Arbitration (Doc. 1) is GRANTED. Plaintiff's counsel may issue and sign subpoenas for the production of document s and the testimony of Ms. Kammeier on behalf of this Court with the following modifications. The subpoena for records shall be modified such that the records are to be produced to the Panel at the hearing location as directed by the Panel. The su bpoena for Ms. Kammeier's testimony shall be modified to allow for her testimony before the Panel so that it may properly determine what portions of her testimony, if any, should be excluded.. Signed by District Judge John A. Ross on 2/6/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHRISTOPHER WRIGHT,
Plaintiff,
vs.
NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY,
NORTHWESTERN MUTUAL
INVESTMENT SERVICES, LLC,
MISSOURI DEPARTMENT OF
INSURANCE and LYNDA KAMMEIER,
Defendants.

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Case No. 4:15-mc-00041-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Christopher Wright’s (“Wright”) Motion to
Compel Compliance with Third-Party Subpoenas Issued in Arbitration (Doc. 1). Defendants
have filed oppositions to this motion (Doc. 4, 7). Plaintiff has replied (Doc. 10). The Court
granted Defendants Northwestern Mutual Life Insurance Company and Northwestern Mutual
Investment Services, LLC (“NML”) leave to file a sur-reply (Doc. 13). For the following
reasons, the motion will be GRANTED.
I.

Background

Plaintiff and Defendants are currently involved in an arbitration proceeding before the
Financial Industry Regulatory Authority (“FINRA”) Arbitration Panel (“the Panel”) regarding
Plaintiff’s claim that NML defamed Plaintiff and tortuously interfered with his business
expectations. The final arbitration hearing is currently scheduled for February 9, 2015 at 9:00
a.m. On January 22, 2015, the Panel issued a Subpoena to Produce Documents to be served
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upon the Missouri Department of Insurance (“MDOI”) and a Subpoena for Testimony to be
served upon Ms. Lynda Kammeier, an investigator at the MDOI (See Doc. 1-2).
In light of the MDOI’s representations that it would not produce the documents or Ms.
Kammeier, Plaintiff filed the current Motion to Compel pursuant to section 7 of the Federal
Arbitration Act (“FAA”) with this Court on January 28, 2015. On January 30, 2015, the Court
entered an order expediting the briefing schedule and directing service upon the Defendants of
both the Motion to Compel and that Order. Defendants have appeared in this case and responded
to the Motion to Compel. In addition to their responses, Defendants moved to quash the
subpoenas prematurely issued and served on behalf of this Court. The Court granted that Motion
because the Court had not approved the issuance at that time.
II.
A.

Analysis

Due Process
The Court must first address NML’s assertion that Plaintiff’s Motion to Compel and this

Court’s January 30, 2015 Order violate its Due Process Rights.

Specifically, that despite

Plaintiff’s Notice to the Court that it served NML with its Motion to Compel by email (Doc. 3),
counsel for NML retrieved the pleadings themselves via the PACER docket system. NML also
contends that Plaintiff’s counsel misrepresented to the Court that counsel for NML requested
service be directed at him. Finally, NML argues that there was no good cause for expediting the
briefing schedule in this matter.
In response, Plaintiff points to NML’s own Exhibit C which includes copies of the
subpoenas and a copy of the Motion to Compel. Exhibit C is the same exhibit NML cites as
evidence that it never received the Motion to Compel. Plaintiff also argues that NML has
conceded that it was “served” with the Court’s order which was provided by NML via email to

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its counsel. Additionally, Plaintiff asserts that given the shortened timetable, Plaintiff’s counsel
used email service in order to ensure Defendants sufficient time to respond under the Court’s
Order.
It is clear from the record that NML received actual notice of the Motion to Compel in a
timely fashion. “When the process gives defendant actual notice of the pendency of the action,
the rules, in general, are entitled to a liberal construction.” Armco, Inc. v. Penrod-Stauffer Bldg.
Systems, Inc., 733 F.2d 1087, 1090 (4th Cir. 1984). Under such liberal construction, the Court
finds that service of the Motion should be upheld in this case. Plaintiff’s counsel indicates that
NML’s counsel was willing to accept service via email and had done so throughout the pendency
of the arbitration proceeding. While NML now claims this is not the case, by receiving service
via email, NML was afforded additional time to respond to the Court’s Order expediting the
briefing schedule. Wiseland v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir. 1997)
(“The rules give wide authority and discretion to the district court to manage its caseload.”)
Further, NML has entered an appearance and has fully responded to the Motion such that the
Court finds that NML’s substantial rights have not been affected.
B.

Subject Matter Jurisdiction
Section 7 of the FAA states that “upon petition the United States district court for the

district in which such arbitrators, or a majority of them, are sitting may compel the attendance of
such person or persons before said arbitrator or arbitrators, or punish said person or persons for
contempt.” 9 U.S.C. § 7. Therefore, this Court has subject matter jurisdiction over plaintiff's
motion to compel so long as the arbitrators are “sitting” within the Eastern District of Missouri
pursuant to 9 U.S.C. § 7. Ferry Holding Corp. v. GIS Marine, LLC, No. 4:11-MC-687 (CEJ),
2012 WL 88196, at *1-*2 (E.D. Mo. Jan. 11, 2012) (citing Hunter Engineering Co. v. Hennessy

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Industries, Inc., No. 4:08CV465, 2009 WL 3806377, at *2 (E.D. Mo. 2009)). In this case, the
Parties do not contest that the Panel is sitting in the Eastern District of Missouri.
C.

Issuance of Subpoenas
Plaintiff requests that the Court enforce the subpoenas issued on behalf of the Panel by

authorizing his counsel to issue and sign subpoenas for the production of the documents and to
compel testimony under the authority of the Court. Section 7 grants an arbitrator the power to
“summon in writing any person to attend before them or any of them as a witness and in a proper
case to bring with him or them any book, record, document, or paper which may be deemed
material as evidence in the case.” 9 U.S.C. § 7. “[I]f any person or person so summoned… shall
refuse or neglect to obey said summons,” a district court may either (1) “compel the attendance
of such person or persons before said arbitrators” or (2) “punish said person or persons for
contempt in the same manner provided by law for securing the attendance of witnesses.” 9
U.S.C. § 7. See also In re Sec. Life Ins. Co. of Am., 228 F.3d 865, 870-71 (8th Cir. 2000).
1. Absolute Privilege
Defendants assert that the documents and the testimony of Ms. Kammeier are absolutely
privileged pursuant to various portions of Missouri Revised Statute Section 374.071. Plaintiff
responds arguing that these issues have already been addressed before the Panel. Specifically,
Plaintiff’s counsel represents that the Panel issued the subpoenas after a briefing from both NML
and Plaintiff regarding the relevancy and admissibility of the testimony and documents requested
by the subpoenas (Doc. 1 at 4).
The Eighth Circuit has indicated that this Court should not “second-guess” the Panel’s
judgment. In re Sec. Life Ins. Co. of Am., 228 F.3d at 871. Specifically, the Circuit has found
that making an independent assessment of materiality “is antithetical to the well-recognized

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policy favoring arbitration, and compromises the panel’s presumed expertise in the matter at
hand.” Id. See also AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011) (finding
that the primary substantive provision of the FAA reflects a liberal federal policy favoring
arbitration) (internal quotations omitted).
However, with only the subpoenas, and no records, order, or transcript before this Court,
it is unclear whether the Panel has considered these privilege arguments. Without knowing
whether the Panel addressed these issues, it is the position of the Court that the records should be
produced to the Panel at the hearing location as directed by the Panel to allow for the Parties to
litigate or resolve any privilege arguments. Likewise, Ms. Kammeier’s testimony should be
available to the Panel for its determination regarding what portion, if any, of her testimony
should be excluded.
2. Procedure
The Court’s authority to enforce the Panel’s subpoenas by allowing Plaintiff’s counsel to
issue the subpoena on behalf of this Court for the production of the requested documents is
limited by Federal Rule of Civil Procedure 45. Defendants assert that it would be improper for
the Court to issue the subpoenas to the MDOI because of (1) the 100-mi geographical limitation
of Rule 45(c)(2)(A); and/or (2) the outside the district limitation of Rule 45(a)(2)(c) (Doc. 4 at 23). The Parties do not dispute that the records at issue are located in Jefferson City, Missouri.
Defendants’ argument regarding the 100-mi geographic limitation of Rule 45(c)(2)(A) is now
moot because the Court has directed that the subpoena be modified so that the records will be
produced at the hearing location, a location within the 100-mi radius (Doc. 10-5). Also, the 2014
version of the Federal Rules of Civil Procedure no longer requires that a subpoena for the
production of documents be issued from the court for the district where the production is to be

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made. Instead, Rule 45(c) provides that “A subpoena must issue from the court where the action
is pending.” Therefore, a subpoena for the records can be properly issued from this Court.
III.

Conclusion

Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel Compliance with ThirdParty Subpoenas Issued in Arbitration (Doc. 1) is GRANTED. Plaintiff’s counsel may issue and
sign subpoenas for the production of documents and the testimony of Ms. Kammeier on behalf of
this Court with the following modifications. The subpoena for records shall be modified such
that the records are to be produced to the Panel at the hearing location as directed by the Panel.
The subpoena for Ms. Kammeier’s testimony shall be modified to allow for her testimony before
the Panel so that it may properly determine what portions of her testimony, if any, should be
excluded.

Dated this 6th day of February, 2015.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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