United States District Court, N.D. Illinois, Eastern Division
SCOTT A. ELLIOT, et al., Plaintiff,
MISSION TRUST SERVICES, LLC, CHRISTOPHER C. FINLAY, THE CORPORATION TRUST COMPANY, and MICHAEL T. HOSMER, Defendants.
MEMORANDUM OPINION AND ORDER
JEFFREY COLE, Magistrate Judge.
The curious case of the North Carolina apartment complex continues, far from its home in the Tarheel State, here in the Northern District of Illinois. The current dispute arises out of proceedings in the Western District of Texas, where Hugh Caraway resides. Mr. Caraway's firm, IRI, was engaged by the Mission Trust plaintiffs to perform a financial analysis of the apartment complex. Mr. Caraway is IRI's CEO. He didn't perform the work, but he did sign off on it. [14-9625, Dkt. #1-1, at 20-21]. The Mission Trust defendants issued a subpoena from this court to Mr. Caraway, requiring that he produce documents and appear for a deposition in San Antonio, Texas.
Mr. Caraway was served on October 7, 2014, the day before he was to leave for a family vacation in Puerta Vallarta, Mexico. The subpoena demanded he produce documents on October 17 and sit for a deposition on the 27th. Prior to that, Mr. Caraway hadn't heard anything from the Mission Trust defendants, and he hadn't heard anything about the lawsuit. He obviously didn't have sufficient time to deal with the subpoena before catching an early flight with his family the next morning. [14-9625, Dkt. #1-1, at 21-22]. He returned on October 14th, and the next day emailed counsel for the Mission Trust defendants, informing him that he had a conflict for the deposition date scheduled and also needed some time to engage counsel. He asked if things could be rescheduled for early November. [14-9625, Dkt. # 1-1, at 69-70].
Apparently in no hurry, counsel for Mission Trust defendants did not respond for six days. Finally on October 21st, he sent an email, steadfastly refusing to budge. [14-9625, Dkt. # 1-1, at 69]. Here is his response in its entirety: "We are in receipt of your e-mail below. We understand that your e-mail related to the subpoena for production of documents. Please confirm that we will be proceeding with your testimonial deposition on Monday, October 27, in San Antonio pursuant to the subpoena served on you." Id. An hour later, Mr. Caraway responded, saying: " I meant both dates. I should have counsel engaged today or tomorrow and they will be getting in contact with you." Id.
Three days later, on October 24, 2014, Mr. Caraway's newly retained counsel went to federal court in San Antonio seeking an order quashing the subpoenas for: (1) failure to provide a witness fee under 28 USC §1821; (2) failure to allow a reasonable time to comply under Fed.R.Civ.P. 45(d)(3); and (3) undue burden. The judge in the Western District of Texas referred the matter to a magistrate judge. The Mission Trust defendants - who had been in such a hurry they could not put Mr. Caraway's compliance off a week or ten days - were no longer so pressed for time, for in addition to filing a response to Mr. Caraway's motion to quash, they filed a motion to transfer the subpoena matter here, claiming there were "exceptional circumstances" under Fed.R.Civ.P. 45(f). [Dkt. #14].
According to the Mission Trust defendants, the "exceptional circumstances" were: (1) "a pattern of gamesmanship to delay discovery that ha[d] been orchestrated by [the Mission Trust] Plaintiffs" that had resulted in sanctions - which had nothing to do with the merit of Mr. Caraway's motion to quash - and (2) the Northern District of Illinois was "very familiar" with the facts and background of the case - a circumstance that is almost invariably true in every case. [14-9625, Dkt. # 14, at 6].
The magistrate judge recommended that the district court transfer the matter here, and the district court accepted the recommendation. The subpoena matter was transferred to the Northern District of Illinois on December 2, 2014.  It did not come to me until March 9. See infra at 5. In the interim, the Mission Trust defendants did nothing to obtain a ruling on so that they could take the deposition they insisted had to proceed in less than 14 days from the original issuance of the subpoena in November 2014.
Under Fed.R.Civ.P 45(f), an enforcing court may transfer a motion to quash a subpoena to the issuing court if the enforcing court finds there are "exceptional circumstances." The Advisory Committee notes explain that, in determining whether exceptional circumstances are at play, the court's:
prime concern should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions. In some circumstances, however, transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation, as when the court has already ruled on issues presented by the motion or the same issues are likely to rise in discovery in many districts. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.
Thus, the second reason offered by Mission Trust defendants, familiarity with the case is, at least in the circumstances of this case, essentially irrelevant since Mr. Caraway's objections - fees, time for compliance, burden - could have been resolved without any familiarity with the core proceedings. It is also clear that the court in Texas was gulled by the first reason the Mission Trust defendants offered: the Mission Trust plaintiffs engaging in gamesmanship and having been sanctioned. At the time of the transfer in early December 2014, the Texas court had no way of knowing that it was the Mission Trust defendants who had engaged in overarching gamesmanship by concealing from Judge Norgle that they had dissolved the trust, and thus he was proceeding without jurisdiction over the plaintiff's claims. See Elliott v. Mission Trust Services, ___ F.Supp.2d ___, 2015 WL 1138265 (N.D.Ill. March 11, 2015). Beyond this, it is difficult to see what the claim of gamesmanship and noncompliance with discovery by the plaintiff had to do with the merit of Mr. Caraways's motion to quash.
The desideratum of Fed.R.Civ.P. 45(f) is the protection of non-parties from undue burdens. And under Fed.R.Civ.P. 45(c), Mr. Caraway was assured he would not have to travel more than 100 miles from his home or business in order to comply with a subpoena. Yet, now, as a consequence of the Mission defendants' Motion to Transfer, not only has compliance with the subpoena been substantially delayed beyond dates that could have been reasonably agreed upon back in the Fall of 2014, but Mr. Caraway is now required to be litigating in a court over 1000 miles away from his place of business and residence. Of ...