Thompson v. National Union Fire Insurance Company of Pittsburg

Filing 35

ORDER denying plaintiff Kristi Thompson's 30 Motion to Compel compliance with subpoena by nonparty Integrity Medicolegal Enterprises. Signed by US Magistrate Judge Veronica L. Duffy on 04/12/19. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

KRISTI H. THOMPSON,

4:18-CV-04011-LLP

Plaintiff,
ORDER DENYING PLAINTIFF’S
MOTION TO COMPEL

vs.

Docket No. 30
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURG,
Defendant.

This matter is pending before the court on plaintiff Kristi Thompson’s
complaint alleging defendant handled her workers compensation claim in bad
faith. See Docket No. 1. Jurisdiction is premised on the diverse citizenship of
the parties and an amount in controversy in excess of $75,000. See 28 U.S.C.
§ 1332. Now pending is Ms. Thompson’s motion to compel production of
documents pursuant to a subpoena duces tecum. See Docket No. 30. The
district court, the Honorable Lawrence L. Piersol, referred Ms. Thompson’s
motion to this magistrate judge for decision. See Docket No. 34.

Ms. Thompson “sent” (see Docket No. 32 at ¶¶3 & 6, Affidavit of
Counsel), a subpoena duces tecum to nonparty Integrity Medicolegal
Enterprises (“IME”), located in Minneapolis, Minnesota, seeking the production
of certain documents therein. See Docket No. 32-4. She alleges in her motion
IME has not produced those documents and seeks the court’s order compelling
IME to disgorge the documents. See Docket Nos. 30 & 31.
Ms. Thompson’s motion cannot be granted. First, subpoenas are
required to be “served,” not merely “sent.” See FED. R. CIV. P. 45(b)(1). That
service may be accomplished by any person who is at least 18 years old and
not a party to the action. Id. No proof that service was ever made on IME
appears in the record nor does it appear IME waived service.
Secondly, the subpoena requires IME to produce the documents in
plaintiff’s counsel’s office in Sioux Falls, South Dakota. See Docket No. 32-4.
A subpoena may command the production of documents at a place within 100
miles of where the person served with the subpoena resides, is employed or
regularly transacts business. See FED. R. CIV. P. 45(c)(2)(A). Minneapolis,
where IME is located, is approximately 237 miles away from Sioux Falls. Thus,
the subpoena requires compliance at a location outside the 100-mile radius
provided under Rule 45.
But finally, a motion to enforce a subpoena must be filed in the district
where compliance is to be had. Here, that is ostensibly Sioux Falls, but
because the subpoena exceeds the 100-mile radius rule, in actuality, the place
for performance, when the subpoena is circumscribed to the radius allowed by
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Rule 45, is somewhere in Minnesota. See FED. R. CIV. P. 45(c)(2)(A) and
(d)(2)(B)(i). Accordingly, this motion should have been filed in the District of
Minnesota as that is the location where compliance is required within the
confines of Rule 45.
Last, but certainly not least, Ms. Thompson’s motion is accompanied by
a certificate of service that defendant’s counsel was served with the motion and
memorandum in support. See Docket No. 30 at p. 3; Docket No. 31 at p. 6.
However, the motion is devoid of any indication that the party which is the
object of the motion—IME—was ever served. It appears that only plaintiff’s
counsel’s affidavit was served on IME. Compare Docket No. 30 at p. 3; Docket
No. 31 at p. 6, with Docket No. 32 at p. 3. Even if the subpoena complied with
Rule 45, the court could not grant a motion against a nonparty where the
record before the court does not establish the nonparty received a copy of the
motion. For all these reasons, it is hereby
ORDERED that plaintiff’s motion to compel compliance with her
subpoena by IME is DENIED.

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NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. § 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED this 12th day of April, 2019.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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