Wartsila Technology Oy Ab v. Hawkins

Filing 35

ORDER denying 1 Motion to Show Cause for Failure to Comply with a Subpoena to Alicia M. Hawkins; denying 26 Motion to Enforce Subpoenas to Yvette R. Johnson, Dwayne Butler, Carolyn Ward, and Cecilia Whitehead; denying as moot 32 Joint Motion to Set Briefing and Hearing Schedule. Signed by Magistrate Judge David S. Cayer on 2/13/2018. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
WÄRTSILÄ TECHNOLOGY OY AB
and WÄRTSILÄ DEFENSE, INC. ,

Civil Action No. 5:18-MC-01-FDW-DSC

Movants,
ORDER

vs.
ALICIA M. HAWKINS,
Respondent.

THIS MATTER is before the Court on Movant’s “Motion to Show Cause for Failure to
Comply with a Subpoena [to Alicia M. Hawkins]…” (document #1), “Motion to Enforce
Subpoenas to Yvette R. Johnson, Dwayne Butler, Carolyn Ward, and Cecilia Whitehead”
(document #26), and “Joint Motion to Set Briefing and Hearing Schedule” (document #32), as
well as the parties briefs and exhibits.
Movant seeks to compel the depositions of five United States Coast Guard (“USCG”)
employees related to trademark litigation pending in this District. See Wartsila Technology Oy
Ab et al v. Coastal Seal Services, LLC, NCWD File No. 5:16-cv-00198-FDW-DSC. Neither the
United States nor the proposed deponents are parties to the underlying action.
“When an agency is not a party to an action, its choice of whether or not to comply with a
third-party subpoena is essentially a policy decision about the best use of the agency’s resources.”
COMSAT Corp. v. Nat’l Sci. Fdt., 190 F.3d 274, 278 (4th Cir. 1999). The only proper method for
judicial review of a federal agency’s decision not to comply with a subpoena is through the
Administrative Procedure Act (“APA”): “[w]hen the government is not a party [to the underlying
action] … the APA provides the sole avenue for review of an agency’s refusal to permit its

employees to comply with subpoenas” or Touhy requests. COMSAT, 190 F.3d at 274. “The APA
… permits a federal court to order a non-party to comply with a subpoena if the government has
refused production in an arbitrary, capricious, or otherwise unlawful manner.” Id. at 277. A federal
agency’s decision is arbitrary and capricious if:
…the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference in view or the product
of agency expertise.
Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).
The reviewing court “must consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.” Bobreski v. E.P.A., 284 F.
Supp. 2d 67, 74 (D.D.C. 2003).
Applying those principles to the record here, the Court concludes that the USCG’s decision
to decline to make its employees available for deposition was neither arbitrary or capricious. To
the contrary, the USCG has produced documents addressing Movant’s primary concern – whether
the USCG purchased Coastal Seal Service, LLC’s sealant product believing it to be Movant’s
product.
For those reasons, as well as the other reasons stated in Respondent’s briefs, the “Motion
to Show Cause for Failure to Comply with a Subpoena [to Alicia M. Hawkins]…” (document #1),
and “Motion to Enforce Subpoenas to Yvette R. Johnson, Dwayne Butler, Carolyn Ward, and
Cecilia Whitehead” (document #26) are DENIED.
The “Joint Motion to Set Briefing and Hearing Schedule” (document #32) is DENIED AS
MOOT.

The Clerk is directed to send copies of this Order to the parties’ counsel; and to the
Honorable Frank D. Whitney.
SO ORDERED.
Signed: February 13, 2018