Buc-ee's Ltd v. Shepherd Retail Inc et al

Filing 9

MEMORANDUM OPINION AND ORDER: The Court sua sponte ORDERS, under Federal Rule of Civil Procedure 45(f), that Third Party Ben E. Keith Company's Motion to Quash Subpoena and for Protective Order [Dkt. No. 1 ] is transferred and remitted to t he Houston Division of the United States District Court of the Southern District of Texas for determination in connection with the underlying litigation, Buc-ee's, Ltd. v. Panjwani, No. 4:15-cv-3704 (S.D. Tex.). The Court CANCELS the oral arg ument set for Wednesday, January 11, 2017, at 2:00 p.m., and the Clerk of the Court is directed to close this matter after transfer of the Motion to Quash Subpoena and for Protective Order. (Ordered by Magistrate Judge David L. Horan on 1/10/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BUC-EE’S, LTD.,

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Plaintiff,
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V.
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SHEPHERD RETAIL, INC., et al.,
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Defendants.
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______________________________________ §
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BEN E. KEITH COMPANY,
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Movant.
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No. 3:17-mc-1-N-BN

MEMORANDUM OPINION AND ORDER
Third Party Ben E. Keith Company (“BEK”) has filed a Motion to Quash
Subpoena and for Protective Order, see Dkt. No. 1 (the “Motion to Quash”), which
United States District Judge David C. Godbey has referred to the undersigned United
States magistrate judge for determination under 28 U.S.C. § 636(b), see Dkt. No. 3.
Respondent Buc-ee’s, Ltd. (“Buc-ee’s”) has filed a response to the Motion to Quash. See
Dkt. No. 7.
The Motion to Quash relates to a subpoena (the “Subpoena”) issued by the
United States District Court for the Southern District of Texas (the “issuing court”)
and served on non-party BEK by Buc-ee’s in connection with a case that Buc-ee’s filed
against several related defendants in the Houston Division of the United States
District Court for the Southern District of Texas, styled Buc-ee’s, Ltd. v. Panjwani, No.
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4:15-cv-3704 (S.D. Tex.) (the “underlying litigation”). The Subpoena required BEK to
designate a corporate representative to appear and testify on January 4, 2017 at the
offices of Buc-ee’s counsel in Dallas, Texas. See Dkt. No. 1-1. Trial of the underlying
litigation is scheduled to begin on January 24, 2017, and the presiding judge in the
underlying litigation (the “Houston Court”) entered an Amended Scheduling / Docket
Control Order that required discovery to be completed by December 21, 2016. See id.
BEK properly filed its Motion to Quash in this Court, which, as required by
Federal Rule of Civil Procedure 45(d)(3), is the court in the district where compliance
with the subpoena is required. See id.
But 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.” FED. R. CIV. P. 45(f). “Rule 45(f) does not require that
a motion to transfer be filed, and the Court may sua sponte order transfer where
appropriate.” Orix USA Corp. v. Armentrout, No. 3:16-mc-63-N-BN, 2016 WL 3926507,
at *2 (N.D. Tex. July 21, 2016).
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
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is appropriate only if such interests outweigh the interests of the
nonparty served with the subpoena in obtaining local resolution of the
motion.
Id.
As the first ground for its Motion to Quash, BEK notes that, “[d]espite the close
of discovery on December 21, ... Buc-ee’s sought and obtained leave of Court to conduct
a deposition after the close of discovery” but that “[n]o motion was ever filed by
Buc-ee’s requesting permission of the Court to conduct its deposition of non-party BEK
after the close of discovery,” even though “a deposition scheduled to be taken after the
close of discovery would also be untimely” under the Houston Court’s scheduling order.
Dkt. No. 1 at 4, 6. But Buc-ee’s reports in its response (and a review of the docket in
the underlying litigation confirms) that Buc-ee’s has now filed a motion “for another
extension for this deposition” of BEK. Dkt. No. 7 at 2. That motion is pending before
the Houston Court, and Buc-ee’s has requested expedited briefing.
The Court is persuaded that sua sponte transfer of the Motion to Quash to the
Houston Court is appropriate here under Rule 45(f) based on exceptional
circumstances. BEK’s first ground for quashal is based on the scheduling order in the
underlying litigation, and the Houston Court is now considering a motion to permit
out-of-time discovery for this deposition that would resolve that issue.
Secondarily, BEK’s other grounds for quashal turn on the relative importance
of the requested deposition to the trial of the case – set to begin in only two weeks – as
weighed against the burden to BEK’s preparing and presenting a representative for a
deposition. See Dkt. No. 1 at 7-9. As a general matter, on the eve of trial, the Houston
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Court presumably has more familiarity with the overall course and scope of discovery
in the underlying litigation on which that ground for the Motion to Quash turns. And
BEK’s Motion to Quash further asserts as a ground for quashal that “Buc-ee’s demand
in its subpoena to take a corporate deposition of a non-party at its counsel’s office in
Dallas, despite its knowledge that the principal office of the relevant and
knowledgeable corporate representative is located in San Antonio, more than 100 miles
away, represents an undue burden under clear precedent.” Dkt. No. 1 at 8. This is not
a case of a local non-party wanting its subpoena-related motion resolved in its home
district. Indeed, BEK’s counsel, who is located in San Antonio, was granted leave to
appear telephonically for oral argument. See Dkt. No. 6.
The Court is presented here with exceptional circumstances in which transfer
is warranted to avoid disrupting the issuing court’s (that is, the Houston Court’s)
management of the underlying litigation and in which those interests outweigh
whatever interests that BEK may have resolution of the Motion to Quash in this
district in which neither BEK nor its counsel is located and whatever relatively
minimal relative burden BEK may face in litigating the Motion to Quash before the
Houston Court as opposed to this Court.
Conclusion
The Court sua sponte ORDERS, under Federal Rule of Civil Procedure 45(f), that
Third Party Ben E. Keith Company’s Motion to Quash Subpoena and for Protective
Order [Dkt. No. 1] is transferred and remitted to the Houston Division of the United

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States District Court of the Southern District of Texas for determination in connection
with the underlying litigation, Buc-ee’s, Ltd. v. Panjwani, No. 4:15-cv-3704 (S.D. Tex.).
The Court CANCELS the oral argument set for Wednesday, January 11, 2017,
at 2:00 p.m., and the Clerk of the Court is directed to close this matter after transfer
of the Motion to Quash Subpoena and for Protective Order .
SO ORDERED.
DATED: January 10, 2017

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DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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