Jones v. Conagra Foods Inc et al

Filing 44

ORDER denying 41 Motion to Quash. Signed by Judge Matthew W. McFarland on 08/13/2020. (kaf)

Case: 1:18-cv-00271-MWM Doc #: 44 Filed: 08/13/20 Page: 1 of 3 PAGEID #: 374

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION – CINCINNATI
JAMES A. SINGLER, as Guardianship of
Carrie Jones,

:
Case No. 1:18-cv-271
:
:
Judge Matthew W. McFarland
Plaintiff,
:
:
v.
:
:
CONAGRA FOODS, INC., et al.,
:
:
Defendants.
:
______________________________________________________________________________
ORDER DENYING MOTION TO QUASH SUBPOENAS TO THIRD PARTIES
(DOC. 41) WITHOUT PREJUDICE TO REFILING IN THE DISTRICT OF ARIZONA
______________________________________________________________________________
This case is before the Court on the Motion to Quash Subpoenas to Third Parties
(Doc. 41) filed by Plaintiff James A. Singler, as Guardianship of Carrie Jones. Pursuant
to Fed. R. Civ. P. 45, Plaintiff asks the Court to quash the non-party subpoenas served
on Dr. Michael Fox and Chemical Reconstruction Services, Inc. (“Chemaxx”) on June 17,
2020. Plaintiff’s counsel retained Dr. Fox and Chemaxx as non-testifying consultants in
anticipation of litigation initially filed in the District of Connecticut on December 3,
2014, but has since expanded their retention to dozens of other exploding cooking spray
cases, including this one. Plaintiff therefore argues that the subpoenas must be quashed
because they require “disclosure of privileged or other protected matter” and “no
exception or waiver applies.” Fed. R. Civ. P. 45(c)(3)(A)(iii).
Defendants ConAgra Foods, Inc. and Conagra Brands, Inc. (together, “Conagra”)
oppose the Motion to Quash on several grounds. Their first ground is that this Court

Case: 1:18-cv-00271-MWM Doc #: 44 Filed: 08/13/20 Page: 2 of 3 PAGEID #: 375

does not have authority to quash the subpoenas because this is not the district in which
compliance with them is required. (Doc. 42 at PageID# 411) (citing Fed. R. Civ. P.
45(d)(3)(A)(iii)). Because Conagra’s reasoning is sound, as discussed below, the Court
does not consider any of the arguments going to the merits of the Motion to Quash.
In 2013, Rule 45 was substantially amended.

The current version of Rule

45(d)(3) provides that, “[o]n timely motion, the court for the district where compliance
is required must quash or modify a subpoena” that meets one of four criteria. Fed. R.
Civ. P. 45(d)(3)(A) (emphasis added). Courts have interpreted this rule to deprive all
courts, with the sole exception of the court where compliance is required, of jurisdiction
to resolve the motion to quash. See, e.g., Quashing or modifying a subpoena, Federal Trial
Handbook Civil § 21:8 (4th ed.) (“Thus, under the current version of the Rule, when a
motion to quash a subpoena is filed in a court other than the court where compliance is
required, that court lacks jurisdiction to resolve the motion.”) (citing AngioScore, Inc. v.
TriReme Medical, Inc., 2014 WL 6706873 (N.D. Cal. 2014); Agincourt Gaming, LLC v.
Zynga, Inc., 2014 WL 4079555 (D. Nev. 2014)). The U.S. Bankruptcy Court for the
District of Colorado declined to hold that Rule 45 was jurisdictional. However, it still
found that the issuing court “simply is not authorized by any statute or rule of civil or
bankruptcy procedure to interject itself into a discovery dispute involving the
production of documents where the ‘place of compliance’ is not within [district of the
issuing court]” and the respondents were not the debtors. In re SBN Fog Cap II LLC, 562
B.R. 771, 776 (Bankr. D. Colo. 2016).
The subpoenas served on Dr. Fox and Chemaxx, who are not parties, require

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compliance in Arizona, not the Southern District of Ohio. (Doc. 41 at PageID# 274, 280.)
Whether jurisdictional or not, this Court agrees that under Rule 45, the only court with
the authority to adjudicate Plaintiff’s Motion to Quash or (if appropriate under Rule
45(f)) to transfer the Motion to this Court, is the District of Arizona.
Plaintiff does not cite any authority holding otherwise. Instead, he proposes
renaming his motion a motion for protective order.

Yet, Plaintiff still argues that

Conagra’s subpoenas must be quashed under Rule 45. If Rule 45 governs this dispute,
then this Court does not have authority to adjudicate it. See E–Imagedata Corp. v. Digital
Check Corp., No. 2:16-CV-1761-GMN-VCF, 2016 WL 4515928, at *1 (D. Nev. Aug. 29,
2016) (Rule 45 “requires the non-party challenging the subpoena to bring its challenge
in the district where the issuing party has sought compliance, regardless of whether the
subpoenaed non-party believes the choice was correct.”).
For the reasons above, the Court hereby DENIES Plaintiff’s Motion to Quash
without prejudice to re-filing in the District of Arizona.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
By:

/s/ Matthew W. McFarland
JUDGE MATTHEW W. McFARLAND