United States District Court, D. Maryland
David Copperthite United States Magistrate Judge.
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.
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.
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. Id.
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.
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. 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.
Plaintiffs' argument that Defendant failed to comply with
the procedural requirements of Fed R. Civ. P. 45 ("Rule
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).
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
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.
Plaintiffs' argument that Defendant's document
request is overbroad.
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