Audi of America, Inc. v. Bronsberg & Hughes Pontiac, Inc.
MEMORANDUM ORDER granting 106 MOTION to Quash Subpoena to Testify at a Hearing filed by William Hughes. Signed by Magistrate Judge Martin C. Carlson on April 25, 2017. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AUDI OF AMERICA, INC.,
BRONSBERG & HUGHES PONTIAC, :
INC. d/b/a WYOMING VALLEY
Civil No. 3:16-CV-2470
(Magistrate Judge Carlson)
On December 13, 2016, Audi of America, Inc., (“Audi”) brought a breach of
contract action, alleging that Defendant Bronsberg & Hughes Pontiac, Inc., d/b/a
Wyoming Valley Audi (“Wyoming Valley”) breached certain terms of an Audi
Dealer Agreement into which the parties entered on January 1, 1997, when it
entered into an Asset and Real Estate Purchase Agreement (the “Purchase
Agreement”) with the Napleton Group. Audi alleged that this Purchase Agreement
between Wyoming Valley and the Napleton Group, which was signed on July 11,
2016, included the sale of Wyoming Valley’s Audi assets in violation of Audi’s
own right of first refusal and its right to refuse to consent to the transaction on
reasonable grounds. (Doc. 1.) In January of 2017, Audi sought, and obtained, a
preliminary injunction from the district court temporarily enjoining Wyoming
Valley and Napleton from consummating this asset purchase agreement while this
litigation was pending. (Doc. 30.) That order currently remains in effect, but is
now the subject of an array of competing motions filed by the parties.
These motions include a motion to dismiss this action, and preliminary
injunction, filed by the defendants (Doc. 42.); a motion to intervene, filed
Napleton, the other participant in this asset purchase agreement (Doc. 52.); and a
motion filed by Audi for rule to show cause why various parties and non-parties
should not be held in contempt for allegedly violating the terms of the district
court’s preliminary injunction (Doc. 65.). These motions, in turn, have inspired
further motions practice, as Audi issued subpoenas to a number of non-party
witnesses, seeking to compel their appearance and attendance at the contempt
proceedings which Audi has initiated before this court. Some of these subpoenaed
witnesses have moved to quash the outstanding subpoenas served upon them.
(Docs. 106, 108, and 136.) On April 21, 2017, these motions to quash were
referred to the undersigned for resolution. (Doc. 142.)
One of these motions to quash has been filed on behalf of William Hughes.
(Doc. 106.) With respect to Mr. Hughes the currently uncontested facts (Doc. 1062.) are as follows: Hughes is an independent contractor who resides in Brighton,
Utah, far beyond 100 miles from the Middle District of Pennsylvania. Hughes is a
part owner and board member of Bronsberg & Hughes Pontiac, Inc., but plays no
role in the day-to-day management or operations of this company. Instead, Mr.
Hughes’ involvement in this business has been limited to traveling to Kingston,
Pennsylvania once a year for annual board meetings, a practice he engaged in from
approximately 2007 through 2015.
According to Hughes he has not visited
Pennsylvania since 2015, and does not otherwise reside, work or regularly transact
business in person in Pennsylvania or its immediate environs. (Id.)
Given this factual recital, Hughes seeks to quash the subpoena served upon
him by Audi. Hughes filed this motion to quash on March 31, 2017. (Doc. 106.)
Audi has not responded to this particular motion to quash and the time for
responding to this motion has now passed.1 Therefore, in the absence of a response
from Audi this motion to quash will be deemed ripe for resolution.
For the reasons set forth below, the motion to quash will be granted.
Several basic guiding principles inform our resolution of the instant motion
At the outset, “[r]ule 45 of the Federal Rules of Civil Procedure
establishes the rules for discovery directed to individuals and entities that are not
It should be noted that Audi has timely opposed motions to quash filed by other
individuals who have been subpoenaed in this case. (Docs. 130, 131.) These
motions will be addressed separately by the Court.
parties to the underlying lawsuit.
A subpoena under Rule
45‘must fall within the scope of proper discovery under Fed.R.Civ.P. 26(b)(1).’
OMS Invs., Inc. v. Lebanon Seaboard Corp., No. 08–2681, 2008 WL 4952445, at
*2 (D.N.J. Nov. 18, 2008).” First Sealord Sur. v. Durkin & Devries Ins. Agency,
918 F. Supp. 2d 362, 382 (E.D. Pa. 2013). Rule 45 also confers broad enforcement
powers upon the court to ensure compliance with subpoenas, while avoiding unfair
prejudice to persons who are the subject of a subpoena’s commands. In this
regard, it is well settled that decisions on matters pertaining to subpoena
compliance rest in the sound discretion of the trial court and will not be disturbed
absent a showing of an abuse of that discretion. R.J. Reynolds Tobacco v. Philip
Morris Inc, 29 F. App’x 880, 881 (3d Cir. 2002). This far-reaching discretion
extends to decisions regarding whether to enforce compliance with subpoenas,
where “ ‘[i]t is well-established that the scope and conduct of discovery are within
the sound discretion of the trial court.’ Guinan v. A.I. duPont Hosp. for Children,
No. 08–228, 2008 WL 938874, at *1 (E.D.Pa. Apr.7, 2008) (quoting Marroquin–
Manriquez v. INS, 699 F.2d 129, 134 (3d Cir.1983)).” Coleman-Hill v. Governor
Mifflin School Dist., 271 F.R.D. 549, 552 (E.D.Pa. 2010).
Rule 45 also provides geographical limitations on the reach of the court’s
subpoena power and prescribes guidance for the court to follow when it considers
subpoenas which transgress these geographic boundaries. Under Rule 45(d) “[o]n
timely motion, the court for the district where compliance is required must quash
or modify a subpoena that . . . requires a person to comply beyond the geographical
limits specified in Rule 45(c).” Fed. R. Civ. P. 45(d)(3)(A)(ii) (emphasis added);
see generally Havens v. Maritime Commc’ns/Land Mobile, LLC, Civ. No. 11-993
(KSH) (CLW), 2014 WL 2094035, at *3 (D.N.J. May 20, 2014) (granting motion
to quash trial subpoenas that “would, if enforced, violate the geographical limits
set out in Rule 45(c)(1)”). In turn, Rule 45(c)(1) provides that a subpoena may not
compel a person to attend a hearing outside of the following geographical limits:
“(A) within 100 miles of where the person resides, is employed, or regularly
transacts business in person; or (B) within the state where the person resides is
employed or regularly transacts business in person, if the person (i) is a party or a
party’s officer . . . .” Fed. R. Civ. P. 45(c)(1); see Havens, 2014 WL 2094035, at
*3(“‘[W]hether an officer of a party or not, under Rule 45(c) a person cannot be
compelled to travel more than 100 miles to attend at trial if the place of trial is not
in the state where the witness resides, is employed, or regularly transacts business
in person.’”). Where a subpoena has been served upon a witness who resides,
works, and transacts business beyond the 100 miles limit prescribed by Rule 45,
we have not hesitated to quash that subpoena in the past.
Cuccinello, No. CIV.A. 3:CV-09-1543, 2009 WL 4280735, at *2 (M.D. Pa. Nov.
30, 2009)(quashing subpoena served upon a North Carolina witness in a
proceeding conducted in the Middle District of Pennsylvania).
In this case William Hughes has represented, without contradiction by Audi,
that he lives and works in Utah, far beyond the 100 mile territorial limits
prescribed by Rule 45 for valid enforcement of a subpoena issued by this court.
Mr. Hughes also represents that, while he is a part owner of defendant Bronsberg,
he does not manage its daily affairs and operations, and his sole contact with this
district has been limited to attending annual board of directors meetings from
approximately 2007 through 2015. However, according to Mr. Hughes he has not
set foot in Pennsylvania or its immediate environs since 2015. Hughes has also
denied, without any meaningful contradiction by Audi, that he has resided in, been
employed in or regularly transacted business in person in the Middle District of
On these undisputed facts, Hughes is entitled under Rule 45 to quash this
subpoena. Indeed, by declining to oppose this motion or defend its subpoena, Audi
may be deemed under the local rules of this court to not oppose this motion to
quash. Local Rule 7.6 of the rules of this court imposes an affirmative duty on
Audi to respond to motions and provides that
Any party opposing any motion, other than a motion for summary
judgment, shall file a brief in opposition within fourteen (14) days
after service of the movant's brief, or, if a brief in support of the
motion is not required under these rules, within seven (7) days after
service of the motion. Any party who fails to comply with this rule
shall be deemed not to oppose such motion. Nothing in this rule shall
be construed to limit the authority of the court to grant any motion
before expiration of the prescribed period for filing a brief in
opposition. A brief in opposition to a motion for summary judgment
and LR 56.1 responsive statement, together with any transcripts,
affidavits or other relevant documentation, shall be filed within
twenty-one (21) days after service of the movant’s brief.
Local Rule 7.6 (emphasis added).
Here Audi has not responded to this particular motion to quash. Therefore,
Audi may be deemed not to oppose the motion, and since Rule 45 seems to
indicate that Mr. Hughes falls beyond the legitimate reach of the court’s subpoena
power, this motion to quash will be granted.
AND NOW, this 25th day of April, 2017, IT IS ORDERED that the motion
to quash the subpoena served upon Williams Hughes, (Doc. 106.), is GRANTED.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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