Lopez Foods Inc v. Aegis Sciences Corporation
Filing
13
ORDER stricken as moot 5 Amended Motion to Quash Subpoena for the Deposition of Lopez Foods, Inc.; terminating 1 Motion to Quash; case dismissed. Signed by Honorable Robin J. Cauthron on 3/7/13. (lg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LOPEZ FOODS, INC.,
Plaintiff,
vs.
AEGIS SCIENCES CORPORATION,
Defendant.
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) Case Number CIV-13-65-C
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MEMORANDUM OPINION AND ORDER
This matter is ancillary to a proceeding in the United States District Court for the District
of South Dakota, Southern District. Defendant subpoenaed Plaintiff Lopez Foods to depose a
corporate representative. Plaintiff now seeks to quash the subpoena. Plaintiff’s Amended Motion
to Quash argues that any duties imposed by the subpoena have been fulfilled.
According to Plaintiff, Defendant served a subpoena on Plaintiff on December 13, 2012, for
a deposition to occur on December 27, 2012. However, on the day before the deposition was to
occur, Defendant notified Plaintiff that the deposition was not going to occur and was canceled.
Defendant “canceled” the deposition based on Plaintiff’s objection to document requests included
as a part of the subpoena. Plaintiff notified Defendant that it would view any failure to appear as
a waiver. Plaintiff then appeared at the time scheduled for the deposition, with documents
responsive to the request, and produced those documents to the court reporter. No representative
from Defendant attended.
After consideration of the parties’ positions, the Court finds that Plaintiff’s duties pursuant
to subpoena have been met. As noted above, Defendant’s subpoena was served on December 13,
2012, noticing a deposition on December 27, 2012. The subpoena included a request for document
production. Pursuant to Fed. R. Civ. P. 45(c)(2)(B), a person commanded to produce documents
should make any objection to that request either before the time specified for compliance or 14 days
after the subpoena is served, whichever is earlier. In compliance with this rule, Plaintiff served its
objections to Defendant on December 26, 2012, or the day before the deposition was to be taken.
Rather than seeking an order from the Court compelling the production of the documents or
otherwise obtaining a resolution of the objection, Defendant unilaterally opted to cancel the
deposition. By doing so Defendant released Plaintiff from any further duties under the subpoena.
If Defendant wished to reschedule the deposition, it was obligated to re-issue a subpoena to
Plaintiff.
For the reasons set forth herein, the Amended Motion to Quash Subpoena for the Deposition
of Lopez Foods, Inc. (Dkt. No. 5) is STRICKEN as moot as no subpoena which can be enforced
is in effect.
This resolves all matters under this Court’s jurisdiction and the case is therefore dismissed.
IT IS SO ORDERED this 7th day of March, 2013.
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