Arrows Up, LLC v. U.S. Silica Holdings, Inc. et al

Filing 192

ORDER denying 133 Motion to Compel. (Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified. (Palermo, J.)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

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Arrows Up, LLC,
Plaintiff,
v.
US Silica Holdings, Inc., and
Sandbox Logistics, LLC,
Defendants.

November 12, 2019
David J. Bradley, Clerk

4:17-CV-1945

ORDER
Pending before the Court1 is Defendant Sandbox’s (“Defendant’s”) motion to
compel document production from two third-parties, OmniTRAX and ShaleTECH
(“Third Parties”). Motion to Compel, ECF No. 133. Defendant served subpoenas
on them, requiring document production pursuant to FED. R. CIV. P. 45. Third Parties
refused to produce any documents. They oppose Defendant’s motion, asserting that
compliance is required in Denver, Colorado and Weatherford, Texas and this Court
is without jurisdiction to compel compliance with the subpoenas. Response, ECF
No. 140 at 1 (citing FED. R. CIV. P. 45(d)(2)(B)(i)).
The Court agrees with Third Parties that Rule 45 vests authority to compel
production in the “court for the district where compliance is required.” FED. R. CIV.
P. 45(d)(2)(B)(i). This Court is the issuing court of the subpoenas. The face of the
subpoena issued to OMNI commands the custodian to produce documents in
Denver, Colorado. ECF No. 133-1 at 9. Likewise, the face of the subpoena issued to
ShaleTECH commands the custodian to produce documents in Weatherford, Texas.
ECF No. 133-2 at 7. Thus, compliance is required in the District of Colorado and
the Northern District of Texas, not the Southern District of Texas. Because
compliance is in other districts, this Court does not have the authority to compel the
subpoenas. See, e.g., HISC, Inc. v. Franmar Internat’l Importers, Ltd., No. 16-cv480-BEN(WVG), 2018 WL 2095738, at *2 (S.D. Cal. May 7, 2018) (issuing court
does not have authority to quash subpoenas). Under Rule 45(f), the compliance court
may transfer the motion to the issuing court, but only under exceptional
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This motion was referred to the undersigned judge and is appropriate for decision under 28 U.S.C.
§636(b)(1)(A). See Notice of Referral, ECF No. 138.
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circumstances if the subject of the subpoena does not consent to the transfer. FED.
R. CIV. P. 45(f); see 9A, Wright & Miller, Fed. Prac. & Proc. Civ. § 2463.1 (3d ed.
2019). Defendant’s argument that production is in electronic form and therefore
Third Parties’ motion is a mere technicality is unavailing. Reply, ECF No. 144 at 34 (citing cases interpreting the 100-mile rule, not the jurisdiction of the court).
Accordingly, Defendant’s motion to compel production is DENIED.
Signed on November 12, 2019.

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Dena Hanovice Palermo
United States Magistrate Judge

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