Buck's, Inc. v. QuikTrip Corporation

Filing 33

MEMORANDUM AND ORDER that James Murray shall produce the information requestedby the subpoena duces tecum served on him on September 19, 2016. The materials requested by the subpoena duces tecum shall be produced by Murray no later than Friday, October 7, 2016. Ordered by Senior Judge Lyle E. Strom. (LAC)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
BUCK’S, INC., a Nebraska
Corporation,

)
)
)
Plaintiff,
)
)
v.
)
)
QUIKTRIP CORPORATION, an
)
Oklahoma Corporation,
)
)
Defendant.
)
______________________________)

8:15CV340

MEMORANDUM AND ORDER

This matter is before the Court on the unopposed motion
of defendant QuikTrip Corporation (“defendant”) to compel nonparty James Murray’s (“Murray”) compliance with a subpoena duces
tecum (“subpoena”) (Filing No. 30).

On September 29, 2016,

defendant filed a brief in support of the motion to compel along
with a copy of the subpoena and excerpts from Murray’s deposition
(Filing Nos. 31, 31-1, and 31-2).
Background
This case involves a dispute regarding the sale of
property located at 11105 Sapp Brothers Drive, Omaha, Nebraska
(“property”) (Filing No. 31 at 1).

Buck’s, Inc. (“plaintiff”)

and defendant both engaged in negotiations with Murray for the
sale of the property (Id. at 2).1

1

On August 23, 2016, defendant

The second page of defendant’s brief contains the page
number “4.” It is unclear if pages two and three were omitted,
or if there is a typographical error. Regardless, there are
sufficient facts within the record for the Court to rule on this
motion.

filed a notice of intent to issue the subpoena upon Murray
(Filing No. 28).

On September 19, 2016, upon agreement with

plaintiff’s counsel, Murray was served with the subpoena.
No. 31 at 2; see also Filing No. 31-1 at 2.

Filing

The subpoena lists

the date for production as September 9, 2016 (Filing No. 31-1 at
1).

On September 20, 2016, Murray gave a deposition in this case

(Filing No. 31-2 at 1).

Murray was questioned by defendant’s

attorney regarding the subpoena during his deposition (Id. at 5).
During the deposition, defendant’s attorney asked, “[Y]ou wanted
some time to organize [items related to the sale of the property
to QuikTrip], and you’ll produce them after you organize them?”
Filing No. 31-2, 5-6.

Murray responded, “I would be glad to.”

In response to a question regarding how long Murray needed to
provide the requested items, he stated, “I know I can do it in
the next week or two.”

Filing No. 31-2 at 6.

Murray further

agreed to let defendant’s attorney know of the progress on
September 27, 2016.

On September 29, 2016, defendant filed this

motion to compel.
Law
“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case . . . .”
R. Civ. P. 26(b)(1).

Fed.

With regard to a subpoena duces tecum, “[a]

subpoena may command: (A) production of documents, electronically
stored information, or tangible things at a place within 100
miles of where the person resides, is employed, or regularly
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transacts business . . . .”

Fed. R. Civ. P. 45(c)(2).

“A person

responding to a subpoena to produce documents must produce them
as they are kept in the ordinary course of business or must
organize and label them to correspond to the categories in
demand.”

Fed. R. Civ. P. 45(e)(1)(A).

A subpoenaed party may

object to a subpoena commanding the production of documents in
writing before the earlier of the time specified for compliance
or fourteen days after service of the subpoena.
45(d)(2)(B).

Fed. R. Civ. P.

In addition, “A party may move to compel discovery

from a non-party under Fed. R. Civ. P. 37.

Gist v. Pilot Travel

Centers, LLC, No. 5:08-CV-293-KKC, 2011 WL 4055788 at *2, (M.D.
Tenn. September 12, 2011).

Finally, a person who has been

served, who fails to comply with the subpoena or an order related
to the subpoena without adequate excuse may be held in contempt.
Fed. R. Civ. P. 45(g).
Discussion
The subpoena at issue here commands production of
information in Murray’s possession related to the property at
issue in this litigation (Filing No. 31-1 at 1).

This includes

“records pertaining to negotiations with Buck’s, Bucky’s, Steve
Buchanan, Investor’s Realty, QuikTrip . . . .”

(Id.)

The Court

finds this information relevant to claims and defenses for the
plaintiff and defendant in this matter.

Accordingly, the

issuance of the subpoena was in accordance with Rule 26(b)(1).
On September 19, 2016, Murray was served with the
subpoena with a date for compliance of September 9, 2016.
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Since

the date for compliance had lapsed at the time of service, the
Court turns to the fourteen-day time period in which Murray had
to file any written objections.

See Fed. R. Civ. P. 45(d)(2)(B).

Applying this rule and the calculation of time under Rule
6(a)(1), Murray’s time for filing a written objection expired on
October 3, 2016.

Accordingly, the Court will grant the

defendant’s motion to compel.
IT IS ORDERED:
1) James Murray shall produce the information requested
by the subpoena duces tecum served on him on September 19, 2016.
2) The materials requested by the subpoena duces tecum
shall be produced by Murray no later than Friday, October 7,
2016.
DATED this 4th day of October, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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