Opinion
Miscellaneous Action No. 1:14-mc-00247-P1
08-26-2014
SPRINT NEXTEL CORPORATION and SPRINT COMMUNICATIONS COMPANY, L.P., Plaintiffs, v. ACE WHOLESALE, INC, ET AL., Defendants.
Copies furnished to: All counsel of record Pro Se Defendants P&R Brothers, LLC
(Related to Civil Action 1:12-cv-2902-JEC, N.D. Ga.) ORDER ON PLAINTIFFS' MOTION TO COMPEL
This matter having come before the Court on Plaintiffs' Motion to Compel non-party P&R Brothers, LLC ("P&R Brothers") to produce documents and to testify at a deposition ("Motion"), and having reviewed the Motion and incorporated memorandum of law, listened to oral argument regarding same, and being otherwise duly advised on the merits, it is hereby,
ORDERED and ADJUDGED that:
1. Plaintiffs' Subpoena Duces Tecum to Produce Documents, Information, or Objects and to Testify at a Deposition in a Civil Action ("Subpoena") is valid, was properly issued and served.
2. P&R Brothers knowingly failed to comply with the Subpoena and provided no justification for its failure.
3. Plaintiffs' Motion is hereby GRANTED in its entirety.
4. P&R Brothers is hereby ordered to produce all documents responsive to Plaintiffs' request for documents as set forth in Exhibit B to the Subpoena to Plaintiffs' counsel, without any objections as those have been waived, within ten (10) days of the date of this Order.
5. P&R Brothers must designate one or more officers, directors, managing agents or other persons knowledgeable of the subject areas described in Exhibit A to Plaintiffs' Subpoena and is ordered to appear for deposition within ten (10) days following the date of production of the documents.
4. Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Plaintiffs are entitled to recover their expenses, including reasonable attorneys' fees and costs, incurred as a result of filing this Motion and Miscellaneous Action. See Fed. R. Civ. P. 37(a)(5) ("If the motion [to compel] is granted . . . the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees."); Anderson v. City of New York, No. CV-06-5363 KAM/VVP, 2009 WL 3731973, at *1 (E.D.N.Y. Nov. 6, 2009) ("Any motions to compel compliance with a duly issued subpoena, if successful, would of course entitle the moving party to an award of attorneys' fees and costs in appropriate circumstances.").
5. Pursuant to Rule 45(g), this Court is also holding P&R Brothers in contempt for failing to comply with Plaintiffs' Subpoena, which provides another basis for awarding Plaintiffs their reasonable attorneys' fees and costs. See Fed. R. Civ. P. 45(g) ("The court for the district where compliance is required . . . may hold in contempt a person, who, having been served, fails without adequate excuse to obey the subpoena or an order related to it."); see also PaineWebber Inc. v. Acstar Ins. Co., 211 F.R.D. 247, 249 (S.D.N.Y. 2002) ("The Court has the power under this rule to impose contempt simply on the basis of failure to comply with a subpoena.").
6. The Court finds that Plaintiffs' request for $15,000.00 in attorneys' fees and costs is reasonable and hereby directs the Clerk to enter judgment in Plaintiffs' favor and against P&R Brothers, LLC in the amount of $__________.
DONE and ORDERED in New York, New York this ___ day of August, 2014.
/s/_________
THE HONORABLE DENISE COTE
CHIEF UNITED STATES DISTRICT JUDGE Copies furnished to:
All counsel of record
Pro Se Defendants
P&R Brothers, LLC