Brown v. Mohr et al

Filing 133

ORDER denying 106 Motion for Contempt; denying 107 Motion to Consolidate Cases. Signed by Magistrate Judge Terence P. Kemp on 9/23/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Steven S. Brown,

:

Plaintiff,

:
:

v.
Director Mohr, et al.,

Case No. 2:13-cv-0006
JUDGE PETER C. ECONOMUS
Magistrate Judge Kemp

:

Defendants.

:
ORDER

This matter is before the Court to consider two pending
motions filed by plaintiff Steven S. Brown.

The first motion

seeks an order holding Gary Mohr in contempt for failure to
comply with a subpoena.

The second motion seeks the

consolidation of this case with Case No. 1:12-cv-583 currently
pending in the Western Division of this Court.

Defendants have

responded to the motions and both motions are now ripe for
decision.

For the following reasons, both motions will be

denied.
Turning first to the motion for contempt, this motion arises
from a subpoena duces tecum directed to Mr. Mohr, who is a named
defendant but has never been served properly with the summons and
complaint in this case.

Briefly, the subpoena requested Mr.

Brown’s “medical and mental health records” from January 2014
through January 2015 and records from the State Medical Board
previously provided to him through a public records request but
later confiscated by SOCF officials.

Mr. Mohr contends that the

motion for contempt should be denied because in responding to the
subpoena with objections, he has complied with Fed.R.Civ.P. 45,
the subpoena was procedurally flawed because it did not provide
adequate time to comply, and the requested documents are not

relevant to the issues in this case.
The Court agrees with defendants that there is no basis for
finding Mr. Mohr in contempt for failure to comply with the
subpoena.

Fed.R.Civ.P. 45(g) provides that a court “may hold in

contempt a person who fails without adequate excuse to obey the
subpoena.”

A timely objection to a subpoena is considered an

“‘adequate excuse,’ precluding a finding of contempt for failure
to obey the subpoena.”

Bariteau v. Krane, 206 F.R.D. 129, 131-

132 (W.D. Ky. 2001), citing Flatow v. The Islamic Republic of
Iran, 196 F.R.D. 203, 208 (D.D.C. 2000); Pennwalt Corp. v.
Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983).
Consequently, the motion to hold Mr. Mohr in contempt will be
denied.
Further, to the extent that Mr. Brown’s motion could be
construed as a motion to compel, the motion will be denied.
Defendants note that the subpoena provided only one business day
for Mr. Mohr’s compliance.

They argue that courts have

consistently found that this is not a reasonable amount of time.
Rule 45(d)(3) provides that a subpoena must be quashed if it
“fails to allow a reasonable time to comply.”

One business day

to comply is generally not considered a reasonable time period.
See, e.g., Jenkins v. Michigan Dept. of Corrections, 2015 WL
1198043, *3 (E.D. Mich. March 16, 2015) (as little as one day not
enough time to reasonably comply); Saffady v. Chase Home Finance,
Inc., 2011 WL 717564, *3 (E.D. Mich. Feb. 22, 2011) (four
business days not enough time for reasonable compliance).
Additionally, defendants contend that Mr. Brown’s subpoena
places an undue burden on Mr. Mohr because the records demanded
are not relevant to the claims in this case.

Specifically, the

defendants assert that the records fall outside the time period
identified in Mr. Brown’s complaints.

They also contend that, to

the extent Mr. Brown argues that he needs these records in
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connection with his request for injunctive relief, his request
for such relief has been denied.
Mr. Brown has not addressed the issue of relevance.

There

is no question that “‘[t]he proponent of a motion to compel
discovery bears the initial burden of proving that the
information sought is relevant.

Guinn v. Mount Carmel Health

Systems, 2010 WL 2927254, *5 (S.D. Ohio July 23, 2010).

For all

of these reasons, Mr. Brown’s motion, to the extent it seeks to
compel Mr. Mohr to respond to the subpoena, will be denied.
Turning to Mr. Brown’s motion to consolidate, following the
initial screening order, Mr. Brown’s claims against SOCF
employees have remained in the Court’s Western Division as Case
No. 1:12-cv-583 and his claims against RCI employees are to be
litigated in this case.

Mr. Brown has both refused to honor this

bifurcation and more than once requested the “rejoining” or
consolidation of the cases.

The reasons cited by Mr. Brown focus

on his indigence and incarceration.

Consistently, the Court has

found that Mr. Brown has no legal basis on which to order
consolidation.

Similarly, none has been presented by Mr. Brown’s

current motion.

Consequently, the motion to consolidate will be

denied.
For the reasons stated above, the motion for contempt (Doc.
106) and the motion to consolidate (Doc. 107) are denied.
MOTION FOR RECONSIDERATION
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
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thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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