Johansen v. Mutual of Omaha Insurance Company et al

Filing 4

ORDER that the motion of AmeriQuote ECF No. 1 is GRANTED. Clerk directed to send a copy of order to the names and addresses listed on AmeriQuote's Certificate of Service ECF No. 1 at 9 (mailed on 07/11/2018) Signed by Magistrate Judge William G. Cobb on 7/11/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEN JOHANSEN, on behalf of himself and )
others similarly situated,
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Plaintiff,
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vs.
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MUTUAL OF OMAHA INSURANCE
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COMPANY, AMERIQUOTE, INC.,
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Defendants.
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______________________________________)

3:18-cv-00325-MMD-WGC
ORDER
Re: ECF No. 1

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Before the court is the Motion of AmeriQuote, Inc., (AmeriQuote) to compel compliance “with
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Rule 45 subpoenas.” (ECF No. 1.) The subpoenas were issued to and served upon Matthew S. Jones and
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Anna L. Jones. (Id. at 27-52.) No objection to either subpoena was received by AmeriQuote. (Id. at 7.)
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No response to the motion to compel has been filed with the court.
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BACKGROUND
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AmeriQuote is a party (defendant) in a putative class action against it and Mutual of Omaha
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Insurance Company (Mutual of Omaha) filed in the United States District Court for the Northern District
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of Georgia (1:16-cv-04108-RWS). The Plaintiff in the underlying litigation alleges Defendants made
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unsolicited calls to the telephones of Plaintiff and others on the National Do Not Call Registry in
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violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227. (ECF No. 1 at 2-3.)
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On October 13, 2017, the District Court for the Northern District of Georgia issued an order
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requiring AmeriQuote to obtain records from third party vendors. AmeriQuote initially served a
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subpoena on an entity called Insurance Marketing Innovations, Inc. (IMI). (Id. at 3.) When AmeriQuote
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received no response to its subpoenas from IMI, AmeriQuote then served deposition subpoenas to

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Matthew Jones and Anna Jones who were officers of IMI. (Id. at 3, pp. 15-22, 25-26, 27-34 and 35-42.)

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Matthew Jones and Anna Jones were directed by their subpoenas to appear for their depositions on

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March 8, 2018, at Bonanza Reporting Services, Reno, Nevada. (Id. at 28, 36.) The Joneses appear to

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be residents of Washoe County, Nevada. (ECF No. 1 at pp. 12, 26.) The subpoenas were personally

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served on February 24, 2018. (Id. at 12.)

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After service of the subpoenas, counsel for AmeriQuote was initially contacted by Anna Jones

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and thereafter by John Collier, Esq., who indicated he was representing Matthew and Anna Jones. (Id.

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at 12-13, 43-49.) Counsel for AmeriQuote agreed, at Mr. Collier’s request, to vacate the depositions to

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be reset at a mutually convenient date. (Id. at 13, 44.) AmeriQuote’s counsel has heard nothing further

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from Mr. Collier subsequent to April 23, 2018, despite several follow-up attempts with Mr. Collier. (Id.)

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This motion to compel compliance with Rule 45 subpoenas followed. It was initially filed in the

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unofficial Southern Division of the District of Nevada. (ECF No. 1.) Because the deponents and their

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putative attorney are located in Reno, the Honorable Andrew P. Gordon, United States District Judge,

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ordered the case transferred to the unofficial Northern Division of the District of Nevada. (ECF No. 3.)

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DISCUSSION

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AmeriQuote properly served deposition subpoenas on Matthew and Anna Jones. The time and

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place of the depositions as set forth in the subpoenas was vacated at the request of counsel for the Jones.

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Counsel for AmeriQuote attempted to resolve the matter of rescheduling the depositions, as is required

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by Fed. R. Civ. P. 37(a)(ii) and LR 26-7(c), to no avail. AmeriQuote’s motion to compel is properly

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filed in the district where compliance is required. Fed. R. Civ. P. 45(d)(2)(B(I) and 45(c)(2)(A).

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Matthew and Anna Jones have waived any objections to the subpoenas by failed to make timely

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objections. See WideVoice Communications, Inc. v. Qwest Communications Company, LLC, No. 2:12-

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cv-00467-GMN-VCF, 2012 WL 1439071, at *3 (D. Nev. April 26, 2012) (quoting Moon v. SCP Pool

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Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005)); Forsythe v. Brown, 281 F.R.D. 577, 587 (D. Nev. 2012)

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(quoting McCoy v. Southwest Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002); citing In Re DG

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Acquisition Corp., 151 F.3d 75, 81 (2nd Cir. 1998). Despite service on attorney Collier (and others;

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ECF No. 1 at 9), no response to the AmeriQuote motion to compel was received by the U.S. District
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Court for the District of Nevada.

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CONCLUSION

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IT IS HEREBY ORDERED that the motion of AmeriQuote (ECF No. 1) is GRANTED.

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Matthew S. Jones and Anna L. Jones are ordered to attend the revised time and place for their

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depositions as may be noticed by counsel for AmeriQuote. Matthew S. Jones and Anna L. Jones are

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advised that their failure to attend their depositions, and/or to produce the identified documents, may

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result in a contempt of court order of this court. Fed. R. Civ. P. 45(g).

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IT IS FURTHER ORDERED that the Clerk shall send a copy of this order to the names and
addresses listed on AmeriQuote’s Certificate of Service (ECF No. 1 at 9).
DATED: July 11, 2018.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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