JMC Restaurant Holdings, LLC et al v. Pevida et al
ORDER denying 20 Motion to Compel. For the reasons stated in the attached Memorandum and Order, Plaintiffs' motion to compel is denied without prejudice to refile in the Southern District of New York. Ordered by Magistrate Judge Vera M. Scanlon on 5/12/2015. (Rice, Liane)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JMC RESTAURANT HOLDINGS, LLC and :
JMC RESTAURANT HOLDINGS
MARCELO PEVIDA, JIA JU TAO,
JOSEPH SILVESTRI, DOES 1-10, and ABC :
BUSINESS ENTITIES 1-10,
MEMORANDUM & ORDER
14 Civ. 6157 (WFK) (VMS)
VERA M. SCANLON, United States Magistrate Judge:
Presently before the Court is the motion of Plaintiffs JMC Restaurant Holdings, LLC and
JMC Restaurant Holdings International, LLC (“Plaintiffs” or “JMC”), to compel nonparty
Knights Investment Group, LLC (“KIG”) to comply with a subpoena duces tecum that Plaintiffs
served on KIG on April 10, 2015. Letter Mot. to Compel (“Pl. Mem.”), ECF No. 20.
Plaintiffs’ subpoena was issued from the United States District Court of the Eastern
District of New York (the “Eastern District”). Pl. Mem. Ex. 3 at 5-17 (the subpoena and its
attachments). The subpoena required KIG to, by April 24, 2015, produce certain documents to
Plaintiffs’ counsel at their offices in Manhattan, located within the jurisdiction of the United
States District Court for the Southern District of New York. Id.1
KIG objected to Plaintiffs’ document requests and did not produce any responsive
documents. KIG asserted that each of Plaintiffs’ requests were unduly burdensome; vague and
ambiguous; and sought documents that were not reasonably accessible and were beyond the
Plaintiffs first subpoenaed KIG on February 10, 2015, but after KIG objected to the February
subpoena and engaged in a meet and confer with Plaintiffs’ counsel, Plaintiffs withdrew the first
subpoena and issued the April 10, 2015 subpoena at issue in this motion. Pl. Mem. 2.
temporal scope of the action. Pl. Mem. Ex. 4 (KIG’s response to the subpoena). KIG further
objected that certain requests were not relevant; duplicative; sought privileged information or
confidential business information; and requested documents that were already in Plaintiffs’
custody or control. Id.
On April 27, 2015, Plaintiffs’ counsel emailed KIG’s counsel concerning KIG’s
objections. Pl. Mem. 3 & Ex. 5. Two days later, when KIG’s counsel had not responded,
Plaintiffs filed their motion to compel. Pl. Mem. 3. Plaintiffs argued that the requested
discovery was relevant and proper under the broad federal standard for discovery articulated by
Federal Rule of Civil Procedure (“Rule”) 26, which states that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1). Pl. Mem. 3. Plaintiffs requested that, pursuant to Rule 45, this Court compel KIG
to comply with the subpoena, and that Plaintiffs be awarded their attorneys’ fees and costs for
bringing the motion. Pl. Mem. 4.
KIG opposed Plaintiffs’ motion, arguing that Plaintiffs did not make sufficient attempts
to meet and confer with KIG prior to filing the motion, and reiterating the objections raised in
KIG’s response to the subpoena. KIG Mem., ECF No. 21. KIG also requested that Plaintiffs be
sanctioned for filing their motion, and that KIG be awarded its attorneys’ fees and costs for
responding to the motion. Id. at 4.
On April 30, 2015, the Court held a telephone conference with the Parties that had been
scheduled prior to Plaintiffs’ filing of the present motion. Order, ECF No. 23. KIG did not
participate in the telephone conference, nor was KIG’s attendance expected. During the
conference, the Court informed Plaintiffs of the jurisdictional concerns discussed below and
ordered Plaintiffs to “address enforcement of the KIG subpoena in the [Southern District of New
York] or revise the subpoena.” Id. As discussed below, Plaintiffs responded that this Court had
authority to determine the motion to compel and declined to revise their subpoena or withdraw
their motion to compel. Pls. Letter, ECF No. 24. KIG responded that it took no position as to
which venue was proper, but also did not consent to having Plaintiffs’ motion determined by this
Court. KIG Letter, ECF No. 25.
In a second letter, as part of a general status report, Plaintiffs reiterated their intent to
pursue the motion to compel in this District, and also provided additional argument as to KIG’s
obligation to respond to the discovery requests. Status Report Letter, ECF No. 28 at 6-7. KIG
filed a motion requesting that this portion of the status report letter be stricken, as it violated this
Court’s Individual Rules, which prohibit reply briefs on letter discovery motions. KIG Mot. to
Strike, ECF No. 29 (citing Individual Rules of Magistrate Judge Vera M. Scanlon, Rule III(b)).
The Court will address KIG’s motion in a separate Order.
In addition, counsel for Plaintiffs, Defendants and KIG participated in a telephone
conference with the Court on May 12, 2015.
Under Rule 45(a)(2), “[a] subpoena must issue from the court where the action is
pending.” Fed. R. Civ. P. 45(a)(2). The subpoena may specify a “[p]lace of [c]ompliance” that
is “within 100 miles of where the person resides, is employed, or regularly transacts business in
person.” Fed. R. Civ. P. 45(c)(1)(a). Where the commanded party objects to a subpoena duces
tecum, Rule 45(d)(2)(B)(i) allows the serving party “[a]t any time, on notice to the commanded
person” to “move the court for the district where compliance is required for an order compelling
production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). “When the court where compliance is
required did not issue the subpoena, it may transfer a motion under this rule to the issuing court
if the person subject to the subpoena consents or if the court finds exceptional circumstances.”
Fed. R. Civ. P. 45(f).
Thus, in Simmons v. Fervent Electrical Corp., No. 14 Civ. 1804 (ARR) (MDG), 2014
WL 4285762 (E.D.N.Y. Aug. 29, 2014), a court in this District denied the plaintiffs’ motion to
compel a nonparty to comply with a subpoena requiring attendance at a deposition in Manhattan.
Id. at *1. The court reasoned that “[s]ince the subpoena at issue requires the deponent’s
attendance in Manhattan, plaintiffs’ motion is properly brought in the United States District
Court for the Southern District of New York” and, therefore, the court “lack[ed] jurisdiction to
address [the] plaintiffs’ motion.” Id.; see Johnson v. Simmons, No. 13 Civ. 205 (HSO) (RHW),
2015 WL 2155714, at *1 (S.D. Miss. May 7, 2015) (finding a motion to compel to be moot
where the court of compliance was in the state of Washington because “even though the
subpoena must issue from the court where the action is pending, the court of compliance still
presides over disputes concerning production of the documents”); Tomelleri v. Zazzle, Inc., No.
13 Civ. 2576 (EFM) (TJJ), 2015 WL 400904, at *2 (D. Kan. Jan. 28, 2015) (finding that the
court lacked authority to determine motions to quash concerning nonparty subpoenas to produce
documents in Los Angeles and New York City); Semex Alliance v. Elite Dairy Genomics, LLC,
No. 14 Civ. 87, 2014 WL 1576917, at *1-2 (S.D. Ohio Apr. 18, 2014) (overruling without
prejudice to refile in the Northern District of Illinois a motion to quash a nonparty subpoena
requiring a deposition and the production of documents in that district); Shaw Grp., Inc. v.
Zurich Am. Ins. Co., No. 12 Civ. 257 (JJB), 2014 WL 204244, at *1 (M.D. La. Jan. 17, 2014)
(finding that the court could not compel compliance with a subpoena for a nonparty to produce
documents in the Eastern District of Louisiana).
I note that, prior to the 2013 amendments to Rule 45, a subpoena duces tecum was
required to be issued “from the court for the district where the production or inspection is to be
made,” Fed. R. Civ. P. 45(a)(2) (2007), rather than from the court where the action was pending.
The prior version of Rule 45 also specified that “the serving party may move the issuing court
for an order compelling production or inspection.” Fed. R. Civ. P. 45(c)(2)(B)(i) (2007). In
other words, under the prior version of Rule 45, the issuing court and the court of compliance
were the same. In contrast, under the current version of Rule 45, the issuing court is the court
where the litigation is pending. Nonetheless, under both the prior and current versions of Rule
45, the court for the district where compliance is required is the proper venue for a motion to
compel. See generally KGK Jewelry LLC v. ESDNetwork, No. 11 Civ. 9236 (LTS) (RLE),
2014 WL 1199326, at *3 (S.D.N.Y. Mar. 21, 2014) (discussing the 2013 amendment).
Requiring the court presiding over the action to issue the subpoena is likely more
convenient for the parties to that action, but this convenience is “still balanced by safeguards
against undue burden on the non-parties subject to such subpoenas.” Shaw Grp., 2014 WL
204244, at *2. The nonparty’s interests are protected by having the court in which compliance is
required—which, per Rule 45(c), will be a court local to the nonparty—handle disputes over
compliance. See Fed. R. Civ. P. 45 (Notes to 2013 Amendments) (“To protect local nonparties,
local resolution of disputes about subpoenas is assured by the limitations of Rule 45(c) and the
requirements in Rules 45(d) and (e) that the motions be made in the court in which compliance is
required under Rule 45(c).”).
In this case, a subpoena issued from this District required the production of documents in
Manhattan, where both Plaintiffs’ counsel and KIG are located. Pls. Letter 1. As Plaintiffs
selected their counsel’s Manhattan office as the location of compliance, the Southern District of
New York is the court for the district where compliance is required. Plaintiffs do not dispute that
the Southern District of New York is “an appropriate venue” for their motion. Pls. Letter 2.
Rather, Plaintiffs argue that “it is not the exclusive venue[,] nor the best suited venue under Rule
First, concerning Plaintiffs’ argument that the Southern District of New York is not the
“exclusive venue” for their motion to compel, Plaintiffs assert that—given KIG’s Manhattan
location—Plaintiffs could have required the production of documents “in Brooklyn or
Manhattan” without running afoul of the 100-mile rule. Pls. Letter 1; see Fed. R. Civ. P.
45(c)(1)(a). Rule 45 specifies that a motion to compel must be brought in “the court for the
district where compliance is required,” Fed. R. Civ. P. 45(d)(2)(B)(i) (emphasis added), not any
court of any district where compliance might have been required. Thus, whether Plaintiffs might
have required compliance in this District is immaterial. See generally Simmons, 2014 WL
4285762, at *1 (requiring a motion to compel a nonparty’s deposition in Manhattan to be filed in
the Southern District of New York).
Moreover, Plaintiffs selected Manhattan as the place of compliance, a choice convenient
for both Plaintiffs’ counsel and KIG. As a result of Plaintiffs’ litigation decision, the Southern
District of New York is the correct venue for Plaintiffs’ motion to compel. This outcome would
have been no different under the prior version of Rule 45. As previously noted, requiring that
motions be filed within the district in which compliance is required protects nonparties by
ensuring the “local resolution of disputes.” Fed. R. Civ. P. 45 (Notes to 2013 Amendments).
This protection may be of less significance to litigants when the issuing court and the court of
compliance are separated by the 1.1-mile span of the Brooklyn Bridge, but Plaintiffs have not
identified any authority permitting the Court to ignore a Federal Rule crafted to protect the
interests of nonparties generally so that Plaintiffs, in this particular case, may file their motion in
their venue of choice.
Second, in support of their contention that the Southern District of New York is not “the
best suited venue under Rule 45,” Plaintiffs argue that it is “highly likely” that, upon request, the
Southern District of New York would transfer Plaintiffs’ motion to compel back to this Court
and, therefore, adjudication by this Court would “best ensure a just, speedy, and inexpensive
determination of the disputed [s]ubpoena.” Pls. Letter 2. Per Rule 45(f), the court where
compliance is required may transfer the motion to compel to the issuing court “if the person
subject to the subpoena consents.” Fed. R. Civ. P. 45(f). Plaintiffs argue that KIG has consented
to such a transfer by noticing its appearance in this action and filing an opposition to the present
motion. Pls. Letter 2. KIG disputes this contention, stating that it was “compelled to file a
response” to Plaintiffs’ motion “or risk the motion being considered unopposed”; that its counsel
noticed their appearance in order to file the opposition papers; and “[i]n no way, shape, or form,
should KIG’s filing of an opposition be considered consent to this venue.” KIG Letter 1.
Although KIG has thus stated that it does not consent to this Court’s jurisdiction over the
motion to compel, if KIG in fact shares Plaintiffs’ preference for this District, KIG may notice its
consent to a transfer after the motion is filed in the proper venue. Fed. R. Civ. P. 45(f). KIG’s
opposition to Plaintiffs’ motion before this Court does not demonstrate consent to an as-yet-
unfiled motion to transfer that would be adjudicated in another district. Moreover, this Court
declines to speculate as to how the Southern District of New York would determine any motion
to transfer. To the extent Plaintiffs believe that the Southern District of New York is not “the
best suited venue” to determine their motion to compel, the Court again notes that Plaintiffs
selected the location for compliance, and that choice determined the proper venue for their
motion to compel. Any delay or increased expense thus stems from Plaintiffs’ litigation
decisions, including their determination to file the motion to compel in this Court and to not
revise and reissue the subpoena. Plaintiffs have not demonstrated that they would receive any
less just, speedy or inexpensive determination of their motion in the Southern District of New
For the foregoing reasons, Plaintiffs’ motion to compel is denied without prejudice to
refile in the Southern District of New York.
Dated: May 12, 2015
Brooklyn, New York
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
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