A.Hak Industrial Services BV et al v. Techcorr USA, LLC

Filing 209

MEMORANDUM OPINION AND ORDER SUSTAINING OBJECTION 196 AND REVERSING IN PART MAGISTRATE JUDGE SEIBERT'S JUNE 9, 2014 180 ORDER. Signed by District Judge Gina M. Groh on 6/30/2014. (tlg)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

A.HAK INDUSTRIAL SERVICES BV
and A.HAK INTANK SERVICES, LLC,
Plaintiffs,
v.

CIVIL ACTION NO: 3:11-CV-74
(JUDGE GROH)

TECHCORR USA, LLC,
Defendant.

TECHCORR USA MANAGEMENT, LLC,
Plaintiff,
v.
A.HAK INDUSTRIAL SERVICES B.V.;
A.HAK INDUSTRIAL SERVICES US LLC;
A.HAK INTANK SERVICES, LLC;
BERKELEY SPRINGS INSTRUMENTS, LLC;
and EUGENE SILVERMAN,
Defendants.
MEMORANDUM OPINION AND ORDER SUSTAINING OBJECTION AND
REVERSING IN PART MAGISTRATE JUDGE SEIBERT’S JUNE 9, 2014 ORDER
Pending before the Court is A.Hak Industrial Services, BV’s Objection [Doc. 196] to
Magistrate Judge James E. Seibert’s Order Denying Defendant TechCorr’s Third Motion
to Compel [Doc. 180]. TechCorr opposes the objection. For the following reasons, the
Court SUSTAINS the Objection and REVERSES IN PART Magistrate Judge Seibert’s

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Order.
I. Background
On May 14, 2014, TechCorr filed a third motion to compel. Magistrate Judge Seibert
held a hearing regarding the motion on June 6, 2014. At the hearing, he denied the motion
without prejudice. On June 9, 2014, he entered an Order confirming that ruling. This Order
set deadlines for the parties to supplement the discovery at issue and correspond regarding
any unresolved discovery issues. Magistrate Judge Seibert also set a deadline for
TechCorr to file another motion to compel (if needed), set a response deadline to any such
motion, and scheduled a hearing on any such motion for July 30, 2014 in Wheeling, West
Virginia. He further ordered that “the CEOs of each party . . . appear in person” at the
motion to compel hearing. Magistrate Judge Seibert later rescheduled the motion to
compel hearing for July 22, 2014, the day after the parties must attend mediation before
Magistrate Judge Seibert in Wheeling.
A.Hak BV filed an objection to the June 9, 2014 Order. A.Hak BV objects that
Magistrate Judge Seibert cannot require that its equivalent of a CEO–General Manager
Johan Robbe–attend the motion to compel hearing in person because Mr. Robbe, as a
citizen and resident of the Netherlands, is outside of the Court’s subpoena power.
Alternatively, A.Hak BV argues that the requirement is an abuse of discretion. It also asks
that Mr. Robbe be allowed to attend the hearing telephonically. TechCorr opposes this
objection. It argues that the subpoena power issue is moot because A.Hak’s CEO will be
in West Virginia for the mediation.
II. Standard of Review
A party can submit objections to a magistrate judge’s ruling on nondispositive

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matters, including discovery orders. Fed. R. Civ. P. 72(a); see also 28 U.S.C. §
636(b)(1)(A). The “clearly erroneous” or “contrary to law” standard of review governs
review of such orders. Fed. R. Civ. P. 72(a).
If a magistrate judge’s decision is “clearly erroneous or is contrary to law,” a
district court may modify or set aside any portion of the decision. Id. A court’s “finding
is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948); see also Harman v. Levin, 772 F.2d 1150, 1152 (4th Cir. 1985). Given that a
magistrate judge has broad discretion afforded to resolve “nondispositive discovery
disputes, the court should only overrule a magistrate judge’s determination if this
discretion is abused.” Shoop v. Hott, Civil Action No. 5:08CV188, 2010 WL 5067567, at
*2 (N.D.W. Va. Dec. 6, 2010) (citing Detection Sys., Inc. v. Pittway Corp., 96 F.R.D.
152, 154 (W.D.N.Y. 1982)).
III. Discussion
Statutes and rules can limit lower federal courts’ inherent power. Chambers v.
NASCO, Inc., 501 U.S. 32, 48 (1991). Federal Rule of Civil Procedure 45(c)(1) limits the
court’s power to compel an individual to attend a hearing as follows:
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or
regularly transacts business in person, if the person

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(i) is a party or a party's officer; or
(ii) is commanded to attend a trial and would not incur
substantial expense.
This provision was added to Rule 45 in 2013. Fed. R. Civ. P. 45, Advisory Committee
Note, 2013 Amendment. The Advisory Committee Notes explain that it is intended to
“resolve a conflict . . . about a court’s authority to compel a party of party officer to travel
long distances to testify at trial” and that “such testimony may now be required only as
specified in new Rule 45(c).” Id.
Here, the Court lacks authority to require that the General Manager of A.Hak
Industrial Services, BV attend the motion to compel hearing in person. The General
Manager lives and works in the Netherlands, outside of West Virginia and more than 100
miles from Wheeling, West Virginia. He therefore is outside of Rule 45(c)(1)’s ambit.
TechCorr’s contention that the mediation date renders Rule 45 inapplicable is
misplaced because it assumes that A.Hak BV’s General Manager must attend the
mediation when that may not be the case. A.Hak BV must send someone with “full
authority to make final and binding decisions” to the mediation. N.D.W. Va. L. R. Civ. P.
16.06(c). That individual may be A.Hak BV’s General Manager, but someone else could
also have such authority. Accordingly, the Court SUSTAINS A.Hak BV’s objection because
its equivalent of a CEO is beyond this Court’s subpoena power. The Court will reverse the
portion of Magistrate Judge Seibert’s June 9, 2014 Order that compels A.Hak BV’s CEO
to attend the motion to compel hearing in person.
Rule 45(c), however, does not preclude Magistrate Judge Seibert from requiring that
A.Hak BV’s CEO or equivalent attend the hearing telephonically. See In re San Juan

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Dupont Plaza Hotel Fire Litig., 129 F.R.D. 424, 426 (D.P.R. 1989) (ordering witnesses
beyond subpoena power of former Rule 45 to testify via satellite and finding Rule 45 neither
permitted nor prohibited the approach). The Advisory Committee Notes state that the
purpose of Rule 45(c) is to prohibit a court from compelling a party’s officer to travel long
distances to attend a hearing. Subdivision (c) demonstrates that Rule 45(c) only seeks to
circumscribe in-person attendance at hearings as it conditions the subpoena power on the
locations of the individual and hearing. Further, remote attendance does not contravene
the policy underlying Rule 45(c) because it does not require that a person travel at all.
Accordingly, given the protracted nature of the discovery disputes that have arisen in this
case and in the interest of fairness to the parties whose CEOs must attend the hearing in
person, the Court finds good cause to order that A.Hak BV’s CEO attend the hearing
telephonically.
IV. Conclusion
For the foregoing reasons, the Court SUSTAINS A.Hak Industrial Services BV’s
Objection and REVERSES IN PART Magistrate Judge Seibert’s June 9, 2014 Order
Confirming the Pronounced Order of the Court Denying Defendant TechCorr’s Third Motion
to Compel.
The Court REVERSES the June 9, 2014 Order’s requirement that the CEO of A.Hak
Industrial Services, BV attend the July 22, 2014 motion to compel hearing in person.
The Court ORDERS that A.Hak Industrial Services, BV’s CEO (or equivalent person
if no CEO exists) attend the July 22, 2014 motion to compel hearing by telephone. The
Court FURTHER ORDERS that, before the proceeding, A.Hak. Industrial Services, BV do
the following:

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1.

Advise Magistrate Judge Seibert of the name of the CEO (or the name of the
equivalent person if no CEO exists) appearing on its behalf and that individual’s
telephone number by July 15, 2014.

2.

Initiate one timely conference call with such individual to [phone] FIVE
MINUTES PRIOR TO the time of the scheduled proceeding. The conference
operator shall have all persons appearing by telephone on the line prior to placing
the call to the Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: June 30, 2014

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