United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE
Party Ben E. Keith Company (“BEK”) has filed a
Motion to Quash Subpoena and for Protective Order,
see Dkt. No. 1 (the “Motion to Quash”),
which United States District Judge David C. Godbey has
referred to the undersigned United States magistrate judge
for determination under 28 U.S.C. § 636(b), see
Dkt. No. 3. Respondent Buc-ee's, Ltd.
(“Buc-ee's”) has filed a response to the
Motion to Quash. See Dkt. No. 7.
Motion to Quash relates to a subpoena (the
“Subpoena”) issued by the United States District
Court for the Southern District of Texas (the “issuing
court”) and served on non-party BEK by Buc-ee's in
connection with a case that Buc-ee's filed against
several related defendants in the Houston Division of the
United States District Court for the Southern District of
Texas, styled Buc-ee's, Ltd. v. Panjwani, No.
4:15-cv-3704 (S.D. Tex.) (the “underlying
litigation”). The Subpoena required BEK to designate a
corporate representative to appear and testify on January 4,
2017 at the offices of Buc-ee's counsel in Dallas, Texas.
See Dkt. No. 1-1. Trial of the underlying litigation
is scheduled to begin on January 24, 2017, and the presiding
judge in the underlying litigation (the “Houston
Court”) entered an Amended Scheduling / Docket Control
Order that required discovery to be completed by December 21,
2016. See id.
properly filed its Motion to Quash in this Court, which, as
required by Federal Rule of Civil Procedure 45(d)(3), is the
court in the district where compliance with the subpoena is
required. See id.
Federal Rule of Civil Procedure 45(f) provides that,
“[w]hen the court where compliance is required did not
issue the subpoena, it may transfer a motion under this rule
to the issuing court if the person subject to the subpoena
consents or if the court finds exceptional
circumstances.” Fed.R.Civ.P. 45(f). “Rule 45(f)
does not require that a motion to transfer be filed, and the
Court may sua sponte order transfer where
appropriate.” Orix USA Corp. v. Armentrout,
No. 3:16-mc-63-N-BN, 2016 WL 3926507, at *2 (N.D. Tex. July
Advisory Committee Notes provide the following guidance as to
when transfer of a subpoena-related motion is appropriate:
The 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.
first ground for its Motion to Quash, BEK notes that,
“[d]espite the close of discovery on December 21, ...
Buc-ee's sought and obtained leave of Court to conduct a
deposition after the close of discovery” but that
“[n]o motion was ever filed by Buc-ee's requesting
permission of the Court to conduct its deposition of
non-party BEK after the close of discovery, ” even
though “a deposition scheduled to be taken after the
close of discovery would also be untimely” under the
Houston Court's scheduling order. Dkt. No. 1 at 4, 6. But
Buc-ee's reports in its response (and a review of the
docket in the underlying litigation confirms) that
Buc-ee's has now filed a motion “for another
extension for this deposition” of BEK. Dkt. No. 7 at 2.
That motion is pending before the Houston Court, and
Buc-ee's has requested expedited briefing.
Court is persuaded that sua sponte transfer of the
Motion to Quash to the Houston Court is appropriate here
under Rule 45(f) based on exceptional circumstances.
BEK's first ground for quashal is based on the scheduling
order in the underlying litigation, and the Houston Court is
now considering a motion to permit out-of-time discovery for
this deposition that would resolve that issue.
BEK's other grounds for quashal turn on the relative
importance of the requested deposition to the trial of the
case - set to begin in only two weeks - as weighed against
the burden to BEK's preparing and presenting a
representative for a deposition. See Dkt. No. 1 at
7-9. As a general matter, on the eve of trial, the Houston
Court presumably has more familiarity with the overall course
and scope of discovery in the underlying litigation on which
that ground for the Motion to Quash turns. And BEK's
Motion to Quash further asserts as a ground for quashal that
“Buc-ee's demand in its subpoena to take a
corporate deposition of a non-party at its counsel's
office in Dallas, despite its knowledge that the principal
office of the relevant and knowledgeable corporate
representative is located in San Antonio, more than 100 miles
away, represents an undue burden under clear
precedent.” Dkt. No. 1 at 8. This is not a case of a
local non-party wanting its subpoena-related motion resolved
in its home district. Indeed, BEK's counsel, who is
located in San Antonio, was granted leave to appear
telephonically for oral argument. See Dkt. No. 6.
Court is presented here with exceptional circumstances in
which transfer is warranted to avoid disrupting the issuing
court's (that is, the Houston Court's) management of
the underlying litigation and in which those interests
outweigh whatever interests that BEK may have resolution of
the Motion to Quash in this district in which neither BEK nor
its counsel is located and whatever relatively minimal
relative burden BEK may face in litigating the Motion to
Quash before the Houston Court as opposed to this Court.
Court sua sponte ORDERS, under Federal Rule of Civil
Procedure 45(f), that Third Party Ben E. Keith Company's
Motion to Quash Subpoena and for Protective Order [Dkt. No.
1] is transferred and remitted to the Houston Division of the
United States District Court of the Southern District of
Texas for determination in connection ...