Thorn v. Novartis Pharmaceuticals Corporation

Filing 125

ORDER denying 113 Plaintiff's Motion to Quash Subpoenas Duces Tecum and denying 120 Defendant's Cross-Motion relating back to the relief requested by Plaintiffs. Signed by Magistrate Judge C Clifford Shirley on July 27, 2012. (AYB)

UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
IRENE JENKINS,
Plaintiff,
V.
NOVARTIS PHARMECEUTICAL CORP.,
Defendant.

SANDRA THORN,
Plaintiff,
V.
NOVARTIS PHARMECEUTICAL CORP.,
Defendant.

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No. 3:11-CV-342
(CAMPBELL/SHIRLEY)

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No. 3:11-CV-373
(CAMPBELL/SHIRLEY)

MEMORANDUM AND ORDER
These cases are before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this
Court, and the orders of the District Judge. Now before the Court is Plaintiffs’ Motion to Quash
Subpoenas Duces Tecum. The parties appeared before the Court for a hearing on July 25, 2012.
Attorneys Robert Germany was present representing Plaintiff Irene Jenkins, and Attorney
Terence Sweeney was present representing Plaintiff Sandra Thorn. Attorneys William Cople,
Robert Johnston, and Phillip Busman were present representing the Defendant.
On June 25, 2012, Attorney Philip Busman executed a subpoena duces tecum on Robert
Marx, D.D.S., ordering him to produce documents in Washington, D.C., on or before July 9,
2012. Attorney Busman executed a second subpoena duces tecum on June 29, 2012, requesting
essentially the same production be made to the same address in Washington, D.C., on or before
July 13, 2012. Both of the subpoenas cited the instant cases as the civil actions to which the

requests for documents related, but the subpoenas were issued by the United States District Court
for the Southern District of Florida, not the Court for the District where production was to be
made, see Fed. R. Civ. P. 45(a)(2)(c).
On July 9, 2012, Plaintiffs Irene Jenkins and Sandra Thorn filed the instant Motion to
Quash, moving the Court to quash these subpoenas. The Motion to Quash was filed in the
Eastern District of Tennessee, and it was referred to the undersigned on July 9, 2012.
Rule 45 of the Federal Rules of Civil Procedure directs that “the issuing court must quash
or modify a subpoena” that does not allow a reasonable time to comply, requires a non-party to
travel more than 100 miles, requires the disclosure of privileged information, or subjects a person
to undue burden. Fed. R. Civ. P. 45(c)(3) (emphasis added). The plain language of Rule 45
instructs that a motion to quash must be filed in the issuing court, and the Court of Appeals for
the Sixth Circuit has explicitly held the same, stating, “The power to quash or modify the
subpoena likewise resides with the issuing court.” United States v. Diabetes Treatment Centers
of America, Inc., 444 F.3d 462, 468 (6th Cir. 2006).
The Plaintiffs’ Motion to Quash moves this Court to quash subpoenas that were issued by
the District Court for the Southern District of Florida. The power to quash or modify these
subpoenas lies with the District Court of the Southern District of Florida. This Court lacks the
authority to afford the requested relief.

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Accordingly, the Motion to Quash [Doc. 106 in No. 3:11-CV-342; Doc.113 in No. 3:11CV-373] is DENIED. To the extent the Defendant’s response can be interpreted as a cross
motion relating back to the relief requested by Plaintiffs, it [Doc. 113 in No. 3:11-CV-342;
Doc.120 in No. 3:11-CV-373] is also DENIED.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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