Gulf Coast Shippers Limited Partnership et al v. DHL Express USA et al

Filing 332

MEMORANDUM DECISION AND ORDER denying #268 Motion to Quash; denying #270 Motion to Quash; denying #272 Motion to Quash. Signed by Magistrate Judge Paul M. Warner on 10/25/11 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

GULF COAST SHIPPERS LIMITED
PARTNERSHIP, et al.,

MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.

Case No. 2:09cv221

DHL EXPRESS (USA), INC., an Ohio
corporation; and DPWN HOLDINGS
(USA), INC.,
Defendants.

District Judge Dale A. Kimball
Magistrate Judge Paul M. Warner

This matter was referred to Magistrate Judge Paul M. Warner by District Judge Dale A.
Kimball pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court are (1) Gulf Coast Shippers
Limited Partnership, et al.’s (collectively, “Plaintiffs”) motion to quash the subpoena of Nancy
Haug and/or for a protective order;2 (2) Plaintiffs’ motion to quash the subpoena of Alexander
Rossi and/or for a protective order;3 and (3) Unishippers Global Logistics, LLC’s
(“Unishippers”) motion to quash the subpoena of Mr. Rossi.4 On October 14, 2011, the court

1

See docket no. 60.

2

See docket no. 268.

3

See docket no. 270.

4

See docket no. 272.

held a hearing on the motions. At the hearing, Plaintiffs were represented by Patrick S. McGoey
and Kyle D. Schonekas; DHL Express (USA), Inc. (“DHL”) and DPWN Holdings (USA), Inc.
(collectively, “Defendants”) were represented by George M. Haley, Christopher S. Ruhland, and
Amy Rudd; and Unishippers was represented by Lewis M. Francis and Jessica Wilde. Before
the hearing, the court carefully considered the motions, memoranda, and other materials
submitted by the parties. After considering the arguments of counsel and taking the motions
under advisement, the court now being fully advised rules as follows.
First, Plaintiffs’ motion to quash the deposition of Ms. Haug and/or for a protective order
is DENIED. Plaintiffs do not have standing to move to quash a subpoena served on a nonparty
unless they have “a personal right or privilege with respect to the subject matter sought by the
subpoena,” Richards v. Convergys Corp., No. 2005-cv-00790-DAK, 2007 U.S. Dist. LEXIS
9131, *3 (D. Utah Feb. 6, 2007), and they have not demonstrated the existence of such a right.
They do, however, have standing to move for a protective order, and this court concludes that
Plaintiffs have not demonstrated that a protective order is warranted in this instance. See Fed. R.
Civ. P. 26(c)(1). Additionally, the court notes that Ms. Haug does not object to the subpoena and
is apparently willing to be deposed.
Second, Plaintiffs’ motion to quash the deposition of Mr. Rossi and/or for a protective
order is DENIED. Again, Plaintiffs do not have standing to move to quash a subpoena served
on a nonparty unless they have “a personal right or privilege with respect to the subject matter
sought by the subpoena,” Richards, 2007 U.S. Dist. LEXIS 9131, at *3, and they have not
demonstrated the existence of such a right. While Plaintiffs do have standing to move for a
2

protective order, they have not demonstrated that a protective order is warranted in this instance.
See Fed. R. Civ. P. 26(c)(1).
Third, Unishippers’ motion to quash the deposition of Mr. Rossi is DENIED. The court
concludes that the criteria set forth in Shelton v. American Motors Corp., 805 F.2d 1323, 1327
(8th Cir. 1986), do not apply here because generally they “only apply to depositions of trial
counsel–or counsel directly representing the party in the pending litigation–and then only if the
deposition would reveal litigation strategy in the pending case.” Luster v. Schafer, No. 08-cv02399-PAB-KMT, 2009 WL 2219255, at *2 (D. Colo. July 23, 2009) (citing cases). Mr. Rossi
is not trial counsel, nor would his deposition reveal litigation strategy in the instant case;
Defendants seek to depose him regarding his understanding of his negotiations with Airborne
Express regarding the National Account Agreement.
This court further concludes that Mr. Rossi was properly served under rule 45 of the
Federal Rules of Civil Procedure. While the court recognizes there is a split of authority
regarding whether personal in-hand service of a subpoena is required under rule 45, the court is
persuaded by the reasoning in E.A. Renfroe & Co., Inc. v. Moran, No. 08-cv-00732-RPM-KMT,
2008 WL 1815535, at *3-5 (D. Colo. April 18, 2008) (“The courts that have upheld service by
alternative means have uniformly held that what is mandated is that service be made in a manner
which reasonably insures actual receipt of the subpoena.”). There is no question that Mr. Rossi
received the subpoena.

3

In summary, Plaintiffs’ motions to quash and/or for protective orders regarding the
depositions of Ms. Haug and Mr. Rossi5 are DENIED. Unishippers’ motion to quash the
subpoena of Mr. Rossi6 is also DENIED. While Defendants may depose Ms. Haug and Mr.
Rossi regarding the negotiations of the agreements at issue, they may not question the deponents
regarding the third-party beneficiary issue because Judge Kimball has already determined that
Plaintiffs “are third-party beneficiaries of the National Account Agreement and the Reseller
Agreement, with rights to enforce those agreements.”7
IT IS SO ORDERED.
DATED this 25th day of October, 2011.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

5

See docket nos. 268, 270.

6

See docket no. 272.

7

Docket no. 294 at 5.
4