Opinion
CIVIL ACTION NO: 00-1209, SECTION: "T" (4)
July 31, 2002
ORDER AND REASONS
On May 3, 2002, the plaintiff, Liberty Mutual Fire Insurance Company ("Liberty"), filed a Motion to Quash Subpoena Duces Tecum (doc. # 166) seeking to quash the subpoena duces tecum issued upon Louis Reynolds by the Ravannacks. The defendant opposes the motion.
I. Background
This suit arises out of a claim filed by James and Jocel Ravannack in the 24th Judicial District Court, Parish of Jefferson, State of Louisiana, against Liberty for homeowner's insurance coverage as a result of property damages sustained to their residence at 5432 Janice Avenue in Kenner, Louisiana. Liberty Mutual subsequently filed suit in federal court seeking a declaratory judgment regarding coverage under its policy of insurance covering the Ravannacks' home.
On April 22, 2002, Louis Reynolds, a sales representative with Liberty, was served with a subpoena duces tecum by the Ravannacks. The subpoena sought:
Any and all files, and/or the entire file of Liberty Mutual of Liberty Mutual Fire Insurance Company, in any way related to the renewal or non-renewal of the policy of homeowner's insurance, policy number H32-291-502814-001 7 ME/NR, issued to James E. Ravannack, for the property located at 5432 Janice Avenue, Kenner, Louisiana 70065-2335, including but not limited to all records, correspondence, notes, reports, memoranda, phone or e-mail messages, and any documentation whatsoever regarding or reflecting any matter whatsoever pertaining to homeowners insurance for the house located at 5432 Janice Avenue, Kenner, Louisiana, or James and/or Jocel Ravanack.
Rec. Doc. No. 166, Pl's Mot. to Quash, Exhibit A.
Liberty filed the subject motion, seeking to quash the subpoena duces tecum. Liberty submitted the affidavit of Reynolds who states that he is not authorized to receive service of process on behalf of Liberty. Reynolds also states that he does not have access, custody or control of documents regarding the issuance or non-renewal of the Ravannacks' insurance policy. Reynolds further states that he was not authorized to possess or produce the requested documents and that he did not sell the subject policy to the Ravannacks. Finally, Liberty contends that because the Court denied the Ravannacks' Motion for Preliminary Injunction to Enjoin Liberty Mutual from exercising its right to non-renewal, the documents requested are irrelevant.
The Ravannacks oppose the motion contending that Liberty's arguments are misplaced. First, the Ravannacks contend that the motion should be denied because, contrary to the Rule 37.1 certificate submitted, the mover did not confer with counsel to resolve the dispute short of filing the instant motion. Second, the Ravannacks contend that the subpoena seeks documents "that were in the possession of Reynolds or that were created by him or others working at his direction in his office," and not documents created and maintained by Liberty as a corporate entity. Third, the Ravannacks contend that the subpoena is not invalid as Rule 45 of the Federal Rules of Civil Procedure allows for service upon a person who is not a party. See Fed.R.Civ.P. 45(b)(1). Fourth, the Ravannacks contend that the denial of the Motion for Preliminary Injunction does not moot all issues addressed in the document requests. Having set forth the position of the parties, the Court will proceed with its analysis of the motion.
II. Analysis
The first issue for the Court is whether the motion should be dismissed because the mover misrepresented in the Rule 37 Certificate that it attempted to resolve the discovery dispute without success. Local Rule 37.1 provides that:
No motion relative to discovery shall be accepted for filing unless accompanied by a certificate of counsel for the moving party stating that counsel have conferred in person or by telephone for purposes of amicably resolving the issues and stating why they are unable to agree or stating that opposing counsel has refused to so confer after reasonable notice. Counsel for the moving party shall arrange the conference.
Local Rule 37.1.
Counsel for Liberty, in its opposition to the "Ex Parte Motion for Leave to File Opposition," does not address the Ravannacks contention that there was no attempt to resolve the dispute short of a written motion. The Court notes that the certificate as submitted does not comply with the Local Rule because it does not state why the parties were unable to agree, nor is there any indication that counsel for the Ravannacks refused to confer after reasonable notice. The Court observes that it has the right to refuse to consider the motion as submitted and cautions counsel that strict compliance with the rule will be required in its future filings. Despite the obvious non-compliance, the Court will address the remainder of the subject motion.
The mover next contends that the subpoena should be quashed because Reynolds is an employee who (1) has no authority to receive service of process on its behalf, (2) had no involvement in the issuance of the homeowner's policy at issue, and (3) does not have possession of the documents sought by the subpoena. The Ravannacks contend conversely that (1) a subpoena issued pursuant to 45(b)(1) can be directed to a person who is not a party, and (2) the subpoena should not be quashed because it is seeking documents created by Reynolds or others under his direction. Before addressing the merits of the motion, the Court must determine whether the Motion to Quash can be pursued by Liberty since it was directed to Reynolds.
A motion to quash or modify a subpoena under Rule 45(c)(3) of the Federal Rules of Civil Procedure may ordinarily be made by the person to whom the subpoena is directed because only that person has standing to attack the subpoena. See Shepard v. Castle, 20 F.R.D. 184 (W.D.Miss. 1957). However, a party, although not the person to whom a subpoena is directed and not in possession or control of the requested materials, does have such standing if he has a personal right or privilege in respect to the subject matter of the subpoena or a sufficient interest in it. Westside-Marrero Jeep Eagle, Inc. v. Chrysler Corp., 1998 WL 186705, *4 (E.D.La. 1998) (citing Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)); Midland Brake, 162 F.R.D. at 685. Here, the subpoena was issued to and served upon Louis Reynolds, a sales representative of Liberty, seeking production of the entire Liberty file regarding the renewal or non-renewal of Ravannacks' homeowner policy.
The record establishes that Louis Reynolds was served with the subpoena duces tecum on April 22, 2002. See Rec. Doc. No. 157.
Liberty clearly has a personal right with regards to the documents made the subject of the subpoena as the subpoena seeks the production of Liberty's files pertaining to the renewal and non-renewal of the Ravannacks' homeowner's policy. Furthermore, Reynolds states in his affidavit that he does not have possession of the Liberty file regarding the renewal or non-renewal of the Ravannacks' homeowner policy.
The Ravannacks suggest that the subpoena sought documents that were in Reynolds' possession or created by him or others working at his direction in his office. Contrary to the assertions of the Ravannacks however, the wording of the subpoena does not seek such documents. Even if it did, Liberty clearly has an interest in the files of its policy holders. Thus, Liberty has standing to challenge the subpoena issued upon Reynolds. Having determined that Liberty has standing to challenge the subpoena, the Court will consider whether the subpoena should be quashed for improper service.
Before a Court may order compliance with a subpoena, the party seeking such an order must establish that it has complied with the requirements of Rule 45 of the Federal Rules of Civil Procedure. Midland Brake, 162 F.R.D. at 686. Where a witness named in a subpoena is a corporation, the subpoena may be served upon an officer, managing agent, or general agent of the corporation. Ghandi v. Police Dept. of Detroit, 74 F.R.D. 115, 121 (E.D.Mich. 1977) (citing International Shoe Co. v. Washington, 326 U.S. 310 (1945)). However, it is proper to address a subpoena to a corporation's records custodian or the corporation itself requiring that it produce documents on behalf of the corporation. See Vaughn Furniture Co. v. Featureline Mfg., 156 F.R.D. 123 (M.D.N.C. 1994).
In the instant case, the subpoena issued by the Ravannacks seeks the renewal and non-renewal files of Liberty. The subpoena, however, was served upon Louis Reynolds individually. Reynolds has indicated that he is not an authorized agent for subpoena of Liberty's business records and has never had and does not presently have custody, control or access to records or files regarding the issuance or non-renewal of the Ravannacks' homeowner's policy.
The Court therefore finds that although the subpoena was addressed to Reynolds, it was implicitly directed to Liberty because it sought Liberty's documents. Since Reynolds is neither the custodian of records, nor an officer of the corporation, managing agent or general agent, service upon Reynolds was improper. See Midland Brake, 162 F.R.D. at 686 (holding that subpoena was improperly served and the Court could not compel defendant corporation to comply with subpoena duces tecum and produce documents identified therein where subpoena was issued to and served upon witness, an employee of corporation, not corporation). Accordingly,
IT IS ORDERED that the Motion to Quash Subpoena Duces Tecum (doc. # 166) is GRANTED.