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Poly-Med, Inc. v. Novus Scientific Pte Ltd.

United States District Court, S.D. California

May 25, 2017

POLY-MED, INC., Plaintiff,
v.
NOVUS SCIENTIFIC PTE LTD., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL [ECF No.1]

          Hon. William V. Gallo United States Magistrate Judge

         I. INTRODUCTION

         Present before the Court is defendants Novus Scientific PTE LTD, Novus Scientific, Inc., and Novus Scientific AB (collectively “Defendants” or “Novus”) unopposed Motion to Compel an out of district subpoena. (Def.s'. Mot., ECF No. 1.) This ancillary discovery proceeding is related to a subpoena served on nonparty Dr. James Chao (“Chao”) in an underlying action pending in the United States District Court for the District of South Carolina. See Poly-Med, Inc., v. Novus Scientific PTE LTD, et al, No. 15-CV-1964-JMC (D.S.C. filed May 8, 2015). Defendants are seeking a court order to compel compliance with the subject subpoena.

         Defendants also seek attorney's fees that have resulted from filing the present Motion. The Court construes this as a motion for contempt sanctions as this is the only sanctions remedy allowed under Rule 45. See Fed. R. Civ. P. 45(g); Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d, 492, 494 n. 4 (9th Cir. 1983); see also Molina v. City of Visalia, No. 13-CV-01991-LJO-SAB, 2015 WL 5193584, at *2 (E.D. Cal. Sept. 4, 2015) (“The only authority in the Federal Rules of Civil Procedure to sanction a nonparty to an action for failure to comply with a subpoena is Rule 45(g).”).

         For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendants' Motion. Additionally, the Court issues an ORDER TO SHOW CAUSE as to why Chao should not be held in contempt for his failure to comply with the subpoena.

         II. RELEVANT BACKGROUND

         On May 8, 2015, Plaintiff filed a Complaint in the United States District Court for the District of South Carolina alleging breach of contract, tortious interference with contract, misappropriation of trade secrets, and unfair trade practices. Poly-Med, Inc., v. Novus Scientific PTE LTD, et al, No. 15-CV-1964-JMC, ECF No. 1. On March 14, 2016, Defendants each filed their Answers as well as Counterclaims against Plaintiff alleging breach of contract, intentional interference with contractual relations, defamation, and unfair trade practices. Id., ECF Nos. 82-84.

         On November 13, 2016, Chao was served personally with a subpoena duces tecum pursuant to Rule 45. (Mallory Decl., Ex. F at 2.) On November 16, 2016, Chao responded by sending an email to Jennifer Mallory, counsel for Defendants. (Id., Ex G at 2.) In this email, Chao indicated he was embarking on a trip to China that would last twelve days, and that he would not be able to respond at the time proscribed in the subpoena. (Id.) Chao further explained he had not yet discussed the matter with his attorney and he requested an additional two to three weeks to “properly respond.” (Id.) That same day, defense counsel responded and requested Chao direct his attorney to contact defense counsel promptly. (Id.) On January 9, 2017, having not received a response from Chao, defense counsel again emailed Chao requesting compliance with the subpoena and warned Chao that Defendants may seek a motion to compel compliance with the subpoena. (Id., Ex. H at 2.)

         On March 30, 2017, Defendants brought the present Motion. On April 14, 2017, the Court issued an order setting a briefing schedule requiring: (1) Defendants to effect service on Chao on or before April 21, 2017; (2) Chao to file an opposition to Defendants' Motion on or before May 12, 2017; and (3) staying compliance with the subject subpoena pending the Court's ruling on the subject motion. (ECF No. 7.) The scheduling order also granted Defendants leave to file a reply on or before May 19, 2017. (Id.) Chao did not file an opposition to the motion. On May 19, 2017, Defendants timely filed a Reply. (Def.s' Reply, ECF No. 11.)

         III. MOTION TO COMPEL

         Under Rule 45(a)(1)(C), a nonparty to a civil suit may be subpoenaed for documents relevant to the suit. A nonparty served with the subpoena duces tecum may serve the propounding party with a written objection within fourteen days after service or before the time of compliance, if less than fourteen days. Fed.R.Civ.P. 45(d)(2)(B). “A nonparty's failure to timely make objections to a Rule 45 subpoena generally requires the court to find that any objections have been waived.” Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005).

         Chao has raised no objections to the subject subpoena. Rather, Chao requested additional time to consult with counsel before replying to the subpoena. That occurred over five months ago. Chao was then ordered to respond to this motion to compel - another opportunity to explain why he has failed to respond to the subpoena. Chao disregarded the Court's order and offered no explanation for his unresponsiveness nor any objections to the subpoena. Thus, Chao has waived any objections he may have had with the subject subpoena.

         Therefore, Defendants' Motion to Compel is GRANTED.

         IV. ORDER ...


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