Ruppert et al v. Alliant Energy Cash Balance Pension Plan

Filing 11

ORDER signed by Judge Rudolph T Randa on 02/18/2010 denying 5 Motion to Transfer Case to Western District of Wisconsin. WE should inform the Court whether it intends to proceed in the Western District on or before 02/22/2010. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

In the Matter of Subpoenas to Wisconsin E n e r g y Corporation and the Wisconsin E n e r g y Corporation Retirement Account Plan

L A W R E N C E G. RUPPERT, et al., P l a i n t if f s , C a s e No. 10-MC-7 -vsA L L IA N T ENERGY CASH BALANCE P E N S I O N PLAN, Defendant.

D E C IS IO N AND ORDER

T h is matter comes before the Court on a motion to quash nonparty subpoenas issued to Wisconsin Energy Corporation and Wisconsin Energy Corporation Retirement Account P la n (collectively, "WE"). The subpoenas were initiated by plaintiffs' counsel in a case c u rr e n tly pending in the Western District of Wisconsin, Ruppert, et al. v. Alliant Energy C a s h Balance Pension Plan, No. 3:08-CV-00127-bbc (W.D. Wis.). Also before the Court is plaintiffs' motion to transfer this discovery dispute to the Western District of Wisconsin. O n February 10, Magistrate Judge Crocker held a telephonic hearing on a motion for a protective order filed by the defendants in the Western District case, Alliant Energy Cash B a la n c e Pension Plan. Judge Crocker denied the defendant's motion and also commented

o n the pending motions to quash and compel here in the Eastern District.1 Interestingly, p la in tif f s' counsel stated that he "goofed" when he initiated subpoenas in Milwaukee as o p p o s e d to Madison. See D. 8-1, Transcript of February 10 Telephonic Hearing at 18. WE is located in Milwaukee, only 80 miles from Madison, so the subpoenas could have been is s u e d out of Madison. See Fed. R. Civ. P. 45(b)(2)(B). Even so, what's done is done. The W e ste rn District cannot quash these subpoenas. The sole authority to quash rests with the is s u in g court. See Fed. R. Civ. P. 45(c)(3)(A); In re Sealed Case, 141 F.3d 337, 341 (D.C. C ir. 1998) ("only the issuing court has the power to act on its subpoenas"). Moreover, the S e v e n th Circuit does not recognize a "discretionary authority to transfer discovery motions to the forum where the underlying litigation is proceeding." Kearney v. Jandernoa, 172 F .R .D . 381, 382-83 (N.D. Ill. 1997) (citing In the Matter of Orthopedic Bone Screw Prods. L ia b ility Litigation, 79 F.3d 46, 48 (7th Cir. 1996)); see also WM High Yield v. O'Hanlon, 4 6 0 F. Supp. 2d 891, 893 (S.D. Ind. 2006) ("district courts in the Seventh Circuit disfavor tran sfe r rin g Rule 45 motions to quash except in the instance of multidistrict litigation"); D r e y er v. GACS Inc., 204 F.R.D. 120, 122 n.4 (N.D. Ind. 2001) ("while some district courts in this Circuit view such transfers as discretionary, the Seventh Circuit frowns on the p ra c tic e "). Therefore, plaintiffs' motion to transfer must be denied. H o w e v e r, Judge Crocker is intimately familiar with what appears to be an exceedingly c o n ten tio u s litigation. It would be far more efficient for Judge Crocker to resolve this d i sc o v e r y dispute. One solution is for the Court to stay its decision on the motion to quash
Two other miscellaneous actions relating to the W e s te rn District case are pending here in the Eastern District b e fo r e Judge Adelman, Nos. 10-mc-9 and 10-mc-10.
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a n d invite WE to file a motion for a protective order in the Western District. See Fed. R. Civ. P . 26(c)(1); Sealed Case, 141 F.3d at 342 (the "rules may well allow similar abstention on a motion to quash, followed by deference to the trial court's decision on a motion for a p ro tec tiv e order"); Kearney, 172 F.R.D. at 383-84 (ordering that the moving party should file a motion for a protective order in the trial court and stating that the court will "issue a ruling n o t inconsistent with the ruling" of the trial court). This solution is appealing, but the Court c a n n o t force WE to submit to the jurisdiction of the Western District. In fact, WE probably d o e s not want to proceed in the Western District in light of Judge Crocker's strong hints that h e would not rule in their favor. Despite the strategic implications, it seems wasteful to in v o lv e this Court in a discovery dispute because of a procedural "goof," 2 especially when th e amount of time and effort already spent on the case in the Western District lends itself to a quicker and easier resolution. T h is may be a naive request, but the Court encourages WE to file a motion for a p ro tec tiv e order before Judge Crocker. If WE is not inclined to do so, the Court will do its b est to resolve this discovery dispute on its merits. If WE elects to proceed in the Western D istric t, the Court will stay its decision, await word on a ruling, and issue an order that is c o n sis te n t with that ruling.

As an aside, the Court agrees with Judge Crocker's assessment that the plaintiffs did not intend to proceed in th e Eastern District. "[E]ven if we were to attribute a scienter to Mr. Gottesdiener or his law firm, I can't think of the u p s id e to them of proceeding in this fashion because all its done is slow things down and make it harder for them to get w h a t they want. So I can't imagine why he would have done this on purpose." D. 8-1, Tr. at 18-19.

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N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. P lain tiff s' motion to transfer this matter to the Western District of Wisconsin

[ D . 5] is DENIED; and 2. W E should inform the Court whether it intends to proceed in the Western

D is tric t on or before February 22, 2010. D a te d at Milwaukee, Wisconsin, this 18th day of February, 2010. S O ORDERED,

s / Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge

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