Calixte v. Simpson, et al

Filing 4

ORDER adopting 3 Report and Recommendation, denying 2 Defendants' Request, and dismissing this action without prejudice. Signed by Judge Douglas R. Cole on 1/5/22. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:21-mc-00012-DRC-SKB Doc #: 4 Filed: 01/05/22 Page: 1 of 3 PAGEID #: 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GAMAELLE CALIXTE,
Plaintiff,

Case No. 1:21-mc-12
JUDGE DOUGLAS R. COLE
Magistrate Judge Bowman

v.
ALLEN SIMPSON, JR., et al.,
Defendants.

ORDER
This cause comes before the Court on the Magistrate Judge’s August 10, 2021,
Report and Recommendation (“R&R”) (Doc. 3), in which the Magistrate Judge
recommends denying Defendants’ request for a subpoena. For the reasons stated
more fully below, the Court ADOPTS the Report and Recommendation (Doc. 3),
DENIES Defendants’ Request for Issuance of Ohio United States District Court Case
Number

(“Request”)

(Doc.

2),

and

DISMISSES

this

action

WITHOUT

PREJUDICE.
To start, the R&R advised the parties that failing to object within 14 days could
result in forfeiture of rights on appeal, which includes the right to District Court
review. (See Doc. 3, #19). See also Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is
no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district
judge to review a magistrate’s report to which no objections are filed.”); Berkshire v.
Dahl, 928 F.3d 520, 530 (6th Cir. 2019) (noting “fail[ure] to file an objection to the
magistrate judge’s R&R … is forfeiture”); 28 U.S.C. § 636(b)(1)(C). Accordingly, the

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parties here needed to object by August 24, 2021. The time for filing objections has
since passed, and no party has objected.
Nonetheless, although no party has objected, the advisory committee notes to
Federal Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” See also Mavrakis v. Warden, No. 5:17-cv-2398, 2018 WL 4104187,
at *3 (N.D. Ohio Aug. 28, 2018) (reviewing for clear error absent an objection to a
Magistrate Judge’s R&R); Mason v. Comm’r of Soc. Sec., No. 1:10 CV 2456, 2011 WL
3022016, at *1 (N.D. Ohio July 22, 2011) (same); Malone v. Nike, No. 2:18-cv-02505TLP-cgc, 2020 WL 4106316, at *2 (W.D. Tenn. July 20, 2020) (same).
The Court has reviewed the R&R and determined that it does not contain “clear
error on [its] face.” Fed. R. Civ. P. 72(b) (advisory committee notes). Allen Simpson,
Jr., and Stan Koch & Sons Trucking, Inc., are the Defendants in an automobile
negligence case filed in Florida. (R&R, Doc. 3, #13). While Defendants represent in
their papers that the action is pending in a federal court in Florida, the Magistrate
Judge determined that the case number Defendants provided actually corresponds to
a matter pending in Florida state court. (Id. at #13–14). In any event, Defendants
seek to open a miscellaneous case in this District, through which they are seeking a
subpoena from this Court to obtain discovery from an Ohio party, First Transit, Inc.
(“First Transit”), that is not a party to the Florida state action. (Request, Doc. 2, #3).
In her R&R, the Magistrate Judge concludes that this Court lacks authority to compel

2

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that discovery under either the Uniform Interstate Deposition and Discovery Act
(“UIDDA”) or Federal Rule of Civil Procedure 45. (Doc. 3, #14).
The R&R appears correct on both counts. The UIDDA provides this Court no
authority to compel the requested discovery because it applies only in state court, not
federal court. (Id.). Meanwhile, Federal Rule of Civil Procedure 45 provides this Court
no authority to compel discovery for the Florida state-court case in question because
a subpoena under that Rule is available only when an action is pending in federal
court, and then only from the federal court where the action is pending. (Id. (citing
Fed. R. Civ. P. 45(a)(2)). Thus, even if the Florida case at issue here were a federal
action, which it appears not to be, the Defendants should have issued the subpoena
from the federal court in Florida where the action was pending, not from this Court.
See Fed. R. Civ. P. 45(a)(2). It is only if the subpoenaed party, First Transit, sought
to modify or quash that subpoena, that an action would be appropriate here. See Fed.
R. Civ. P. 45(d)(3)(A).
In short, the Court finds no error, much less clear error, in the Magistrate
Judge’s conclusion that this Court lacks authority to order the requested discovery.
Accordingly, the Court ADOPTS the Report and Recommendation (Doc. 3), DENIES
Defendants’

Request

(Doc.

2),

and

DISMISSES

this

action

WITHOUT

PREJUDICE.
SO ORDERED.
January 5, 2022
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
3