Brim v. Dell Financial Services, LLC et al

MOTION to Quash Subpoena to Non-Party American Express

N.D. Ala.February 11, 2011

1138567.1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION JAMON T. BRIM, Plaintiff, v. MIDLAND CREDIT MANAGEMENT, INC. and MIDLAND FUNDING, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 5:10-cv-0369-IPJ MOTION TO QUASH SUBPOENA Pursuant to Federal Rules of Civil Procedure 45(c)(3) and 26(c)(1), Defendant Midland Credit Management, Inc. (“Midland”) moves this Court to enter an Order quashing Plaintiff’s subpoena to non-party American Express: 1. Earlier this afternoon, Friday, February 11, 2011, counsel for Midland received a service copy of a subpoena from Plaintiff directed to non-party American Express, commanding American Express to submit to deposition on Tuesday, February 15, 2011, and to produce certain documents at that deposition. This is the first notice Midland’s counsel has received of Plaintiff’s intent to seek testimony or documents from American Express. The subpoena was purportedly sent to American Express via overnight mail on Tuesday, February 8, 2011. (See Exhibit A, Subpoena). FILED 2011 Feb-11 PM 04:30 U.S. DISTRICT COURT N.D. OF ALABAMA Case 5:10-cv-00369-IPJ Document 57 Filed 02/11/11 Page 1 of 4 1138567.1 2 2. The discovery cut-off in this case was October 22, 2010. Now, more than three-and-a-half months later, Plaintiff seeks deposition and document discovery just four business days before trial, with notice to Midland of only two business days. 3. To the extent the subpoena is for a trial deposition (rather than a discovery deposition), final witness and exhibit lists for the trial beginning in 10 days were due February 1, 2011. See Scheduling Order, doc. 14. Plaintiff’s witness list did not include a witness from American Express. (See doc. 47). Having not disclosed a witness from American Express on his final witness list, the trial deposition of American Express would be a waste of both parties’ time and money. Plaintiff’s subpoena should therefore be quashed. 4. Moreover, American Express does not have any records concerning the Plaintiff. In October 2010, Midland served a subpoena for documents on American Express, and American Express did not produce any documents. Earlier today, American Express sent to Midland’s counsel a letter stating that it “does not have records responsive to the subpoena request” and that Plaintiff’s “name/address and Social Security . . . were not located in our database.” (See Exhibit B, Letter from American Express). Case 5:10-cv-00369-IPJ Document 57 Filed 02/11/11 Page 2 of 4 1138567.1 3 Respectfully submitted this 11th day of February, 2011. /s/ Jason B. Tompkins One of the Attorneys for Defendant Midland Credit Management, Inc. OF COUNSEL: Eric B. Langley Jason B. Tompkins BALCH & BINGHAM LLP Post Office Box 306 Birmingham, Alabama 35201-0306 Telephone: (205)251-8100 Facsimile: (205)226-8798 elangley@balch.com jtompkins@balch.com Case 5:10-cv-00369-IPJ Document 57 Filed 02/11/11 Page 3 of 4 1138567.1 4 CERTIFICATE OF SERVICE I hereby certify that on this 11th day of February 2011, I have filed the above and foregoing with the Clerk of the Court via the CM/ECF electronic filing system, which will send notification to all counsel of record listed below: Penny Hays Cauley HAYS CAULEY, P.C. 549 West Evans Street, Suite E Florence, SC 29501 phc917@hayscauley.com Ronald C. Sykstus BOND, BOTES, SYKSTUS, TANNER & EZZELL, P.C. 415 Church Street, Suite 100 Huntsville, AL 35801 Leonard A Bennett CONSUMER LITIGATION ASSOCIATES PC 12515 Warwick Blvd, Suite 100 Newport News, VA 23606 757-930-3660 Fax: 757-930-3662 Email: lenbennett@clalegal.com /s/ Jason B. Tompkins Of Counsel Case 5:10-cv-00369-IPJ Document 57 Filed 02/11/11 Page 4 of 4