Pinnix, et al v. SSC Silver Stream Operating Company LLC, et al

Filing 48

ORDER denying 44 Motion for Reconsideration regarding 40 Order on Motion for Order to Show Cause - Signed by District Judge Louise Wood Flanagan on 10/26/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:14-CV-161-FL

GWENDOLYN JACKSON PINNIX,
Executor of The Estate of David W.
Jackson, Sr.; WARREN IVAN
JACKSON, Executor of The Estate of
David W. Jackson, Sr.,
Plaintiffs,
v.
SSC SILVER STREAM OPERATING
COMPANY LLC,
Defendant.

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ORDER

This matter is before the court on defendant’s motion for reconsideration of the court’s
August 27, 2015, order holding Heather Jackson (“Jackson”) in contempt for failing to appear for
deposition after issuance of a subpoena. (DE 44). The issues raised are ripe for ruling. For the
reasons that follow, defendant’s motion is denied.
BACKGROUND
On August 8, 2015, plaintiff noticed Jackson, a nonparty witness, by subpoena that she was
to appear for deposition on August 19, 2015. On August 19, Jackson failed to appear for the
deposition. On August 21, 2015, plaintiffs moved for Jackson to be held in contempt for failure to
appear for deposition in response to a subpoena, and on August 27, 2015, the court granted
plaintiffs’ motion. On September 25, 2015, defendant moved for reconsideration of the court’s
order, arguing Jackson had not been served properly with the subject subpoena, nor was she

provided by plaintiff with the appropriate fees for her appearance or mileage, as required by Federal
Rule of Civil Procedure 45.
COURT’S DISCUSSION
In considering the instant motion, the court addresses first whether defendant properly may
challenge the subpoena on Jackson’s behalf. Ordinarily, a party does not have standing to challenge
a subpoena issued to a nonparty unless the party claims some personal right or privilege in the
information sought by the subpoena. See 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2463.1 n. 7 (3d ed. & Supp. 2015) (listing cases). When a challenging
party fails to make a showing that he has a personal right to, or privilege in, the information being
sought in a third party’s subpoena, the challenging party lacks standing to contest whether the
subpoena was issued properly. See United States v. Idema, 118 F. App’x 740, 744 (4th Cir. 2005);
see also In re Grand Jury Subpoena John Doe, 584 F.3d 175, 184 n. 14 (4th Cir. 2007).
Jackson is defendant’s former employee, but defendant’s counsel admittedly does not
represent Jackson, nor has anyone in counsel’s office been in contact with Jackson. (Def. Mot. ¶
5). Defendant claims it is not “mov[ing] to quash a deposition subpoena” (Def. Reply ¶ 2), and
attempts to distinguish its motion from motions to quash in order to claim standing, by arguing that
“[defendant] could not stand idly by and let an injustice occur.” (Id.). Defendant, however, must,
and does, challenge the validity of the subpoena as executed in order to challenge the court’s order
holding Jackson in contempt. Accordingly, defendant was required to make a showing as to what
personal interest defendant possessed in Jackson’s subpoena. Defendant’s argument that “at some
point Plaintiffs will attempt to create an adverse inference against [defendant] based on this alleged
failure to comply by a former employee of [defendant]” does not demonstrate the personal

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connection necessary to establish standing to contest the subpoena or the service of process upon
a third party. (Def. Reply ¶ 7).
CONCLUSION
Based on the foregoing, defendant’s motion for reconsideration is DENIED. (DE 44).
SO ORDERED, this the 26th day of October, 2015.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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