Brooks et al v. MVP Group International LTD

Filing 56

ORDER DENYING NON-PARTY DISCOVERY MOTION denying without prejudice 40 Motion to Compel.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

December 12, 2016
David J. Bradley, Clerk

MARIA BROOKS, et al,

§
§
Plaintiffs,
§
VS.
§ CIVIL ACTION NO. 2:16-CV-00028
§
MVP GROUP INTERNATIONAL INC., et §
al,
§
§
Defendants.
§
ORDER DENYING NON-PARTY DISCOVERY MOTION
Before the Court is Defendant MVP Group International, Inc.’s (MVP’s) motion
to compel discovery (D.E. 40) against the Aransas Pass Police Department, a non-party to
this action. MVP seeks an order compelling compliance with discovery sought pursuant
to a Federal Rule of Civil Procedure 45 subpoena. The motion is not accompanied by
proof that the subpoena was served as required by Rule 45(b). Neither is there proof that
the Aransas Pass Police Department made an appearance in this action to seek relief from
the requirements of the subpoena.

Thus the record does not establish personal

jurisdiction over respondent, non-party, Aransas Pass Police Department for purposes of
compelling discovery.
Before the Court’s contempt powers may be invoked, the movant must bring the
non-party to the Court through appropriate means to satisfy the requirements of due
process. In particular, the exercise of contempt powers must be preceded by notice of the
motion and date of hearing through Rule 4 (when the non-party has made no response to
the subpoena) or Rule 5 (if the non-party has made an appearance in writing by a
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designated representative by objecting to, or seeking relief from, the subpoena) giving
time to respond under Rule 6(c). See generally, S.E.C. v. Hyatt, 621 F.3d 687, 697 (7th
Cir. 2010); Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d 737, 748
(7th Cir. 2007). Of course, waiver of such service signed by the respondent’s duly
recognized representative would be sufficient.
If the subpoena was not properly served, it is not entitled to enforcement. And
because a properly served Rule 45 subpoena acts as a court order requiring discovery, an
additional court order is not required prior to the exercise of contempt powers to enforce
it. Hyatt, supra at 694 (treating the issuance of such an order as an optional step). The
Court thus DENIES MVP’s request for an order requiring discovery that is superfluous
and does not involve contempt powers.
MVP’s motion does not, on its face, invoke the Court’s contempt powers. And if
the Court were to construe it as doing so, no relief could be granted because of the failure
to provide proof of service of the motion pursuant to Rule 4 or 5 so as to guarantee due
process. Consequently, the Court DENIES the motion (D.E. 40) without prejudice to
correct the service issues identified herein and seek relief pursuant to the Court’s
contempt powers.
ORDERED this 12th day of December, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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