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Bierman Family Farm, LLC v. United Farm Family Insurance Co.

United States District Court, D. Maryland

August 2, 2017

BIERMAN FAMILY FARM, LLC./ KING MULCH/KING FARMS, Plaintiffs,
v.
UNITED FARM FAMILY INSURANCE COMPANY, Defendant.

          MEMORANDUM

          A. David Copperthite United States Magistrate Judge.

         This Memorandum Opinion addresses the Motion to Quash and Objections to Defendant United Farm's Notice of and Subpoena for Depostion Duces Tecum (ECF No. 29) filed by Plaintiffs Bierman Family Farm, LLC, King Mulch, and King Farms (collectively, "Plaintiffs") against Defendant United Farm Family Insurance Company ("Defendant"). On June 5, 2017. Plaintiffs filed a Motion to Quash and Objections to Defendant United Farm's Notice of and Subpoena for Depostion Duces Tecum (hereinafter "die Motion to Quash"). ECF No. 29. On June 7, 2017, Plaintiffs filed an opposition to Plaintiffs' Motion to Quash. ECF No. 30. On June 12, 2017, Plaintiff filed a reply to Defendant's opposition. ECF No. 31. Plaintiffs argument is two-fold: (1) that Defendant failed to comply with the procedural requirements of Fed R. Civ. P. 45 ("Rule 45") because the subpoena was not directed to either the registered agent or principal business office and failed to include a witness fee; and (2) that the document request contained therein fails to comply with Fed R. Civ. P. 26 ("Rule 26") because it is overbroad and unduly burdensome on Plaintiff. ECF No. 29-1.

         This matter is now fully briefed. Upon review of Plaintiffs' Motion to Quash. Defendant's Response, and Plaintiffs' Reply, the Court finds no hearing is necessary. See Local Rule 105.6. For the foregoing reasons, this Court GRANTS Plaintiffs* Motion to Quash on all grounds.

         I. Factual Background

         This lawsuit arises out of Defendant United Farm Family's denial of Plaintiff Bierman's insurance claim for alleged damage to a storage building on the property located at 33819 Market Street. Pokomoke City, Maryland 21851 (hereinafter "the Property"). On or about October 13, 2015, Plaintiff Bierman and Defendant entered into a contract of insurance (Policy No. 1913G1126) (hereinafter "the Policy") providing coverage on the Property for the time period from November 17, 2015 through November 17, 2016. ECF No. 29-1. The Policy provided for a maximum coverage of $200, 000 for the storage building located at the Property. In addition to that maximum, the Policy provided for up to $10, 000 for debris removal and up to $ 10, 000 for law and ordinance coverage.[1] Id.

         On April 10, 2016, "the Property sustained a fire loss" ECF No. 2 at 2. As a result, Plaintiffs "made a claim with the Defendant for the resulting property damage by way of Claim Number 19-G-3A9171" claiming costs in excess of the $200, 000 policy limit for replacement of the Property as well as estimates in excess of $10, 000 for debris removal. Id. at 3. Thereafter, Defendant partially denied Plaintiffs claim, paying $105, 000 or one half of the total coverage for damage and debris removal at the Property based on the application of a Vacancy and Unoccupancy Clause contained in the Policy.[2]

         On January 3, 2017, Plaintiffs filed suit in the Circuit Court for Harford County against Defendant alleging one count of breach of contract for failure to fully pay the amounts due under the Policy.[3] Specifically, Plaintiffs contend that. "[Defendant] improperly applied a 50% vacancy penalty, even though the Storage Building was not vacant under the definitions of the policy." Id.

         II. Discussion

         a. Plaintiffs' argument that Defendant failed to comply with the procedural requirements of Fed R. Civ. P. 45 ("Rule 45").

         The decision whether to enforce or quash a party's subpoena is within the district court's discretion. See United States v. Guild, No. I:07cr404, 2008 WL 169355, at *1 (E.D.Va. Jan. 15. 2008) (citations omitted). This Court first addresses Plaintiffs' claim that Defendant's subpoena was improperly served. Rule 45 addresses the mechanisms by which a subpoena may be served and sets forth protections for persons subject to subpoenas. Specifically, Rule 45(b)(1) provides, in part, that "[s]erving a subpoena requires delivering a copy to the named person and. if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law." Fed.R.Civ.P. 45(b)(1) (2017).

         Plaintiff argues that the Defendant failed to tender the required witness and mileage fee as mandated by Rule 45(b)(1). Defendant counters that the subpoena does not request witness attendance and thus is not subject to the witness and mileage fee requirement.

         The Court finds no support in the record for Defendant's argument. First, the subpoena itself is titled as follows: "SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION!.]" In addition, the subpoena sets a time, date, and location for deposition of the witness and commands that the witness, "must also bring with you to the deposition the following documents, electronically stored information, or objects, and must permit inspection, copying testing or sampling of the material[.]" ECF No. 29-2 at 2 (emphasis added). Furthermore, the attached notice is titled as "NOTICE TO TAKE DEPOSITION DUCES TECUM" and states that "Defendant will take deposition upon oral examination of the following person on the date and at the time noted [...]"). Therefore, based on the language in the subpoena, the witness's attendance was clearly requested and Defendant was required to comply with the fee requirements of Rule 45(b)(1). Thus, the Court finds that the subpoena was not properly served in accordance with Rule 45(b)(1) because Defendant failed to tender the required witness and mileage fees upon service.

         b. Plaintiffs' argument that Defendant's document request is overbroad.

         "The burden of proving that a subpoena is oppressive is on the party moving to quash." Fleet Bus. Credit. LLC v. Solarcom, LLC, No. Civ. AMD 05-901, 2005 WL 1025799, at *1 (D.Md. May 2, 2005) (internal quotation marks omitted); see also Smith v. United Salt Co., No. 1:08CV00053, 2009 WL 2929343, at *5 (W.D. Va. 9 Sept. 2009). Irrelevance and overbreadth are not contained within the list of enumerated reasons for quashing a subpoena found in Rule 45. It is well settled, however, that the scope of discovery allowed under a subpoena is the same as the scope of discovery allowed under Rules 26(b). Cook v. Howard, No. 11-1601, 2012 WL 3634451, at *6 (4th Cir. Aug. 24, 2012) (per curiam) ("Although Rule 45(c) sets forth additional ...


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