Wright v. Old Gringo, Inc. ( 2020 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARSHA WRIGHT, Case No.: 17cv1996-BAS (MSB) 12 Plaintiff, ORDER DENYING EX PARTE MOTION RE: 13 v. DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S SUBPOENAS FOR 14 OLD GRINGO, INC., et al., DOCUMENTS TO THIRD PARTIES 15 Defendants. CAVENDER, LTD. AND BOOT BARN, INC. [ECF NO. 211] 16 17 18 On January 10, 2020, Defendants Old Gringo, Inc. (“OGI”), Old Gringo, S.A. de C.V. 19 (“OGS”), Yan Ferry, and Ernest Tarut filed an “Ex Parte Motion Re: Defendants’ Objections 20 to Plaintiff’s Subpoenas for Documents to Third Parties Cavender, Ltd. and Boot Barn, 21 Inc.” (“Objection Motion”). (ECF No. 211.) Plaintiff filed her Opposition on January 14, 22 2020. (ECF NO. 217.) For the reasons discussed below, the Court DENIES Defendants’ 23 Objection Motion without prejudice. 24 I. RELEVANT PROCEDURAL HISTORY 25 Defendants assert, without providing evidence, that Plaintiff served Rule 45 26 subpoenas for documents on third parties, Cavender, Ltd. and Boot Barn, Inc., on either 27 January 2, 2020 or January 3, 2020, with production due on January 13, 2020, the cut-off 2 January 3, 2020. (ECF No. 211 at 2, ECF No. 211-1 at 2.) After attempting to meet and 3 confer with Plaintiff’s counsel to file a joint motion for determination of discovery dispute, 4 Defendants filed the instant Objection Motion on January 10, 2020. (ECF No. 211.) 5 II. DISCUSSION 6 In their Objection Motion, Defendants raise both procedural and substantive 7 objections, and ask this Court to “take action” on said objections, without explaining what 8 action Defendants seeks from the Court. (ECF No. 211.) Specifically, Defendants object 9 that (1) the subpoenas were untimely because Plaintiff did not permit the subpoenaed 10 parties a reasonable time to respond; (2) Plaintiff failed to provide Defendants with 11 advance notice of the third-party subpoenas, and (3) the subpoenas seek specific sales 12 figures of OGS customers, to which this Court has previously denied discovery to Plaintiff. 13 (Id. at 5-6.) Plaintiff opposes Defendants’ Objection Motion, noting that (1) the Federal 14 Rules of Civil Procedure do not permit a party to file objections to a Rule 45 subpoena to 15 a third party, and (2) any motion to quash must be filed in the district where compliance 16 was demanded. (ECF No. 217 at 2-3.) 17 A. Legal Standard 18 Federal Rule of Civil Procedure 45 governs the procedure by which a party can 19 compel a non-party to produce documents and tangible things. Fed. R. Civ. P. 34(c). A 20 Rule 45 subpoena may issue from the court where the action is pending and compel a 21 non-party to produce documents “at a place within 100 miles of where the person resides, 22 is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(a)(2), 23 45(c)(2)(A). 24 The procedures for protecting a third-party subject to enforcement or challenging 25 a subpoena are set forth in Rule 45, subsection (d), which permits the subpoenaed party 26 to serve objections on the subpoenaing party the earlier of the date of production, or 14 27 days after service of the subpoena. Fed. R. Civ. P. 45(d)(2)(B). The demanding party may 2 district where compliance is required” is required or permitted to grant a motion to quash 3 or modify a subpoena. Fed. R. Civ. P. 45(d)(3). Finally, the rule specifies the circumstances 4 under which a motion brought under this section may be transferred from “the court 5 where compliance is required” to the “issuing court.” Fed. R. Civ. P. 45(f). Such transfer 6 is permitted when “the person subject to the subpoena consents or [] the court finds 7 exceptional circumstances.” Id. “The issuing court does not have authority to quash a 8 subpoena unless, of course, compliance is also required in that the same district where 9 that court sits.” H.I.S.C, Inc. v. Franmar Int'l Importers, Ltd., Case No. 16-CV-480- 10 BEN(WVG), 2018 WL 2095738, at *2 (S.D. Cal. May 7, 2018). 11 B. Defendants’ Objections are Procedurally Improper. 12 In the first instance, Rule 45 does not permit a party to interfere with a subpoena 13 by serving or filing objections. Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 14 2005) (“A party cannot object to a subpoena duces tecum served on a non-party, but 15 rather, must seek a protective order or make a motion to quash.”) (citing Schwarzer, 16 Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, ¶ 17 11:2291 (2005 rev.)). However, even if this Court were to construe Defendants’ motion 18 as a Motion to Quash, see Odyssey Reinsurance Co. v. Nagby, Case No. 16-CV-3038- 19 BTM(WVG), 2018 WL 1963665, at *2 (S.D. Cal. Apr. 26, 2018) (considering possibility of 20 construing defendant’s objections as motion to quash), Defendants have not submitted 21 any evidence that this Court has jurisdiction to rule on such a motion. Defendants did not 22 submit the subpoenas or anything else to indicate in which district compliance was 23 required. 24 / / / 25 / / / 26 / / / 27 / / / 1 Ill. CONCLUSION 2 For the foregoing reasons, Defendants’ Objection Motion is DENIED without 3 || prejudice. 4 IT IS SO ORDERED. 5 ||Dated: January 28, 2020 SA Honorable Michael S. Berg United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28