Allstate Insurance Company et al vs. Nassiri, et al.,

Filing 361

ORDER Denying 356 Adam Kutner's Motion for District Judge to Reconsider Order. Signed by Judge James C. Mahan on 10/14/11. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ALLSTATE INSURANCE
COMPANY, et al.,

2:08-CV-369 JCM (GWF)

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Plaintiffs,

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v.

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OBTEEN N. NASSIRI, D.C., et al.,

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Defendants.

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ORDER

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Presently before the court is Adam Kutner’s motion for district judge to reconsider. (Doc.

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#356). Kutner moves this court to reconsider Magistrate Judge Foley’s denial of Kutner’s

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emergency motion to quash or modify subpoena. (Doc. #355). Plaintiffs filed an opposition. (Doc.

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#357). Kutner did not reply.

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Plaintiffs have scheduled Kutner’s deposition on five different dates during the last year.

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Kutner had three weeks’ notice before the last scheduled deposition date. However, Kutner waited

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until three business days before filing the emergency motion to quash. (See Doc. #355). In the order

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denying Kutner’s motion to quash, Magistrate Judge Foley noted the “untimely” nature of the

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motion. (Doc. #355). Additionally, Magistrate Judge Foley found that Kutner would suffer no

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undue burden in light of the three weeks notice of the deposition. (Doc. #355).

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The magistrate judge issued the order denying Kutner’s emergency motion on September 30,

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2011. (Doc. #355). Kutner waited until the next business day, October 3, 2011, just one day before

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the scheduled deposition, to file his motion to reconsider with this court. (Doc. #356). Kutner failed

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James C. Mahan
U.S. District Judge

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to appear at the October 4, 2011, deposition. (Doc. #357). Plaintiffs then filed a response to the

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motion to reconsider on October 5, 2011, one day after the scheduled deposition. (Doc. #357).

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When reviewing the magistrate judge’s order, this court determines whether it is clearly

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erroneous or contrary to law. See Fed. R. Civ. P. 72(a); Local Rule IB 3-1. The magistrate judge’s

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order is “clearly erroneous” if this court is left with “a definite and firm conviction that a mistake

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has been committed.” See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick

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v. Comm’r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). However, “[w]hen reviewing discovery

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disputes . . . the [m]agistrate is afforded broad discretion, which will be overruled only if abused.”

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Tafas v. Dudas, 530 F. Supp. 2d 786, 792 (E.D. Va. 2008).

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To the extent Kutner’s motion to reconsider is not moot, the court affirms the magistrate

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judge’s denial of the emergency motion to quash or modify subpoena. Kutner first argues that his

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motion to quash or modify subpoena was timely because it was filed within the time period allowed

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by Federal Rule of Civil Procedure 45(c)(2). However, Rule 45(c)(2) is inapplicable to the case at

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bar. Instead, Kutner’s motion to quash or modify is governed by Rule 45(c)(3), which requires a

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“timely motion.” See FED. R. CIV. P. 45(c)(3). The court is inclined to agree with the magistrate

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judge; Kutner’s motion was untimely. Kutner had three weeks notice of the deposition, yet filed his

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motion only three business days before the deposition’s scheduled date. The magistrate judge did

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not commit clear error when he found Kutner’s motion untimely.

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Kutner also asserts that scheduling the deposition on a work day will be unduly burdensome.

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In the order denying the motion to quash or modify subpoena, the magistrate judge found that this

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assertion was without merit. (Doc. #355). The magistrate judge stated that Kutner “has had

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sufficient time to take the necessary steps to ensure that his law practice can operate without his

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presence during the scheduled deposition time.” (Doc. #355). Again, the court is inclined to agree

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with the magistrate judge. Further, even if the court were not inclined to agree with the magistrate

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judge, the magistrate judge’s order is not “clearly erroneous” or contrary to law. See U.S. Gypsum

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Co., 333 U.S. at 395; Burdick, 979 F.2d at 1370 (9th Cir. 1992).

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James C. Mahan
U.S. District Judge

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Adam Kutner’s motion

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for district judge to reconsider (doc. #356) be, and the same hereby is, DENIED.
DATED this 14th day of October, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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