CMB Expert, LLC v. Atteberry et al

Filing 19

Memorandum Opinion and Order denying 5 MOTION to Transfer Case out of District/Division . Encore's 1 Motion to Quash and 13 Amended MOTION to Quash are set for telephonic oral argument on 6/6/2014 at 2:00 PM before Magistrate Judge David L Horan. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 5/27/2014) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CMB EXPERT, LLC d/b/a CMB
REGIONAL CENTERS,
Plaintiff,
V.
KIMBERLY ATTEBERRY, et al.,
Defendants.

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No. 3:14-mc-51-B-BN

MEMORANDUM OPINION AND ORDER DENYING MOTION TO
TRANSFER AND SETTING ORAL ARGUMENT ON MOTIONS TO QUASH
Nonparties Encore Enterprises, Inc. and Encore Global (collectively, “Encore”)
have filed a Motion to Quash [Dkt. No. 1] and, subsequently, an Amended Motion to
Quash [Dkt. No. 13] (collectively, the “Motions to Quash”) subpoenas issued to them
by Plaintiff CMB Expert, LLC d/b/a CMB Regional Centers (“CMB”). CMB has filed a
Motion to Transfer Encore’s Motion to Quash [Dkt. No. 5], which Encore opposes.
District Judge Jane J. Boyle has referred these motions to the undersigned magistrate
judge. See Dkt. Nos. 9 & 14.
CMB’s Motion to Transfer [Dkt. No. 5] is DENIED for the reasons explained
below.
Encore’s Motion to Quash [Dkt. No. 1] and Amended Motion to Quash [Dkt. No.
13] are set for telephonic oral argument on June 6, 2014 at 2:00 p.m Central Time
before U.S. Magistrate Judge David L. Horan. By 4:00 p.m. on June 5, 2014, Encore’s
counsel

shall

circulate

a

dial-in

number
-1-

to

CMB’s

counsel

and

to

[e-mail]. Counsel for each party shall contact Vila Fisher at
[phone] no later than 4:00 p.m. on June 5, 2014 to confirm that counsel will
be available for the telephonic oral argument.
CMB seeks to transfer Encore’s Motions to Quash to the issuing court and the
court where the underlying action is pending, the United States District Court for the
Central District of Illinois, Rock Island Division. See Dkt. No. 5. Encore opposes CMB’s
Motion to Transfer. See Dkt. No. 16.
Federal Rule of Civil Procedure 45(f) provides that, “[w]hen the court where
compliance is required did not issue the subpoena, it may transfer a motion under this
rule to the issuing court if the person subject to the subpoena consents or if the court
finds exceptional circumstances.” Because Encore does not consent to transfer, the
Court may only transfer the Motions to Quash if exceptional circumstances exist.
“[T]he proponent of transfer bears the burden of showing that such
circumstances are present.” Fed. R. Civ. P. 45(f), advisory committee notes (2013
amendments). The Advisory Committee Notes provide the following guidance as to
when transfer of a subpoena-related motion is appropriate:
The prime concern should be avoiding burdens on local nonparties subject
to subpoenas, and it should not be assumed that the issuing court is in a
superior position to resolve subpoena-related motions. In some
circumstances, however, transfer may be warranted in order to avoid
disrupting the issuing court’s management of the underlying litigation,
as when the court has already ruled on issues presented by the motion or
the same issues are likely to rise in discovery in many districts. Transfer
is appropriate only if such interest outweigh the interests of the nonparty
served with the subpoena in obtaining local resolution of the motion.
Id.
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In support of its Motion to Transfer, CMB asserts that: 1) CMB served
subpoenas on several nonparties in multiple jurisdictions requesting the production of
documents relating to the defendants in the underlying action; 2) the underlying action
is a “fairly complex civil case”; 3) a criminal investigation involving the facts of the
underlying case is also pending in the Central District of Illinois; and 4) the Central
District of Illinois is already considering motions to stay the underlying action, CMB’s
motion to compel discovery from defendants, and a motion to extend discovery. CMB
also argues that transferring the Motions to Quash will not pose an undue burden on
Encore.
Encore opposes the Motion to Transfer and asserts that, because Encore is
headquartered and based in Dallas, and because any responsive documents will be
located in Dallas, it would be a burden for Encore to litigate the Motions to Quash in
the Central District of Illinois. See Dkt. No. 16 at 7. Encore also argues that none of the
circumstances offered by CMB qualify as “exceptional.”
The Court notes that the parties have agreed to consolidate before this Court the
only other subpoena-related action cited by either party. See Dkt. No. 13 at 3. The
remaining circumstances cited by CMB – that the underlying action is “fairly complex,”
that there is a related criminal case, and that other, at most tangentially related
motions are pending before the court in the Central District of Illinois – are not
exceptional circumstances warranting a Rule 45(f) transfer. See, e.g., Garden City
Emps. Ret. Sys. v. Psychiatric Solutions, Inc., Misc. A. No. 13-238, 2014 WL 272088,
at *3 (E..D. Pa. Jan. 24, 2014) (denying transfer under Rule 45(f) because the fact that
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the issuing court undeniably had greater familiarity with the underlying action did not
constitute an exceptional circumstance).
CMB’s Motion to Transfer [Dkt. No. 5] is DENIED.
SO ORDERED.
DATED: May 27, 2014

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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