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Hodes v. Amco Insurance Co.

United States District Court, Ninth Circuit

November 7, 2013

MARTIN HODES DDS dba BROADWAY DENTAL, Plaintiff,
v.
AMCO INSURANCE COMPANY, an Iowa Corporation; ALLIED INSURANCE COMPANY, a California Corporation; NATIONWIDE INSURANCE COMPANY OF AMERICA, a Wisconsin Corporation and DOES 1 through 100, Inclusive, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL

NITA L. STORMES, Magistrate Judge.

This is a breach of contract and good faith and fair dealing case arising out of the alleged improper handling of a commercial property insurance claim. At issue is a motion to compel compliance with a subpoena served to obtain third party discovery. AMCO Insurance Company, Allied Insurance Company, and Nationwide Insurance Company of America ("Defendants") served a subpoena on Pacific Coast Commercial Flooring ("PCC"), a nonparty. Mem. Ps&As, p.2. The subpoena directed PCC's person most qualified to appear at a deposition and testify on the designated subjects. Id. PCC's person most qualified Nathan Mallory, attended the deposition. But Mallory refused to testify. Id. at 3.

Defendants now bring a motion to (1) compel the deposition of PCC's person most qualified; (2) amend the scheduling order to continue the date for completion of fact discovery; and (3) impose monetary sanctions for the attorney's fees incurred due to PCC's failure to testify. Id. Neither PCC, or any other party, filed an opposition. For the following reasons, the court GRANTS the motion with respect to compelling the deposition of PCC's person most qualified and amending the scheduling order. The court DENIES without prejudice the motion to impose monetary sanctions on PCC.

I. Underlying Litigation

Martin Hodes DDS dba Broadway Dental ("Plaintiff") was closed for a long weekend on or about January 6, 2010. Dkt. 1, Ex. A. An employee entered the property and discovered the dental office was flooded. Id. A hot water pipe had burst over the long weekend, causing damage to the wood floor and dental equipment in the office. Id.

Plaintiff reported the insurance claim to Defendants. Id. The parties disputed the amount that Defendants should pay for the insurance claim. Id. On November 16, 2012, Plaintiff filed a complaint against Defendants, alleging breach of contract and breach of duty of good faith and fair dealing. Id. To support the claim for damages, Plaintiff hired PCC to prepare an estimate for the cost to replace Plaintiff's flooring. Mem.Ps&As, p.3.

II. Discussion

A. Legal Standard

Federal Rules of Civil Procedure 26 and 45 govern discovery from nonparties by subpoena. See Exxon Shipping Co. v. U.S. Dep't of Interior, 347 F.3d 744, 779 (9th Cir. 1994) (applying both rules to motion quash subpoena). The testimony of a nonparty witness at deposition may be compelled by service of subpoena under Rule 45. Fed.R.Civ.P. 30(a)(1). Additionally, Federal Rule 37(a)(5) allows the court to impose monetary sanctions when a party or deponent does not comply with a subpoena. Fed. R. Civ. Proc. 37(a)(5).

B. The Subpoena

Federal Rule of Civil Procedure 45 sets out the requirements to require a witness's attendance at a deposition when compelled by service of a subpoena.

The subpoena must:

(1) state the court from which it issued;
(2) state the title of the action, the court in which it is pending and its ...

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