United States District Court, D. Maryland
case has been referred to me for post-judgment discovery
disputes and related scheduling matters as authorized by
Local Rule 301.6 (aj) and pursuant to Maryland Rule of Civil
Procedure 2-633. [ECF No. 39]. Presently pending is Plaintiff
Michael Scott's (“Plaintiff”) Motion to
Enforce a Subpoena Duces Tecum served on a
non-party, State Towing, LLC [ECF No. 94], Defendant Mudassar
Rana's (“Rana”) Opposition [ECF No. 97], and
Plaintiff's Reply [ECF No. 101]. I find that no hearing
is necessary. See Loc. R. 105.6 (D. Md. 2016). For
the reasons discussed below, Plaintiff's Motion will be
granted in part and denied in part.
background, Plaintiff drove a tow truck for Shaheen Group,
LLC (t/a “Empire Towing”), which was managed by
Faizal “Frank” Nisar and Mudassar Rana. On
December 19, 2017, a judgment for violations of the Fair
Labor Standards Act was entered against: (1) Shaheen Group,
Nisar, and Rana (collectively “Defendants”),
jointly and severally, in the amount of $131, 466.00; and (2)
Rana in the amount of $100, 000.00. [ECF No. 20 at 2]. The
judgment also awarded Plaintiff attorneys' fees and costs
in the amount of $7, 797.91. Id. On March 19, 2018,
with the judgment remaining unpaid, Plaintiff filed a Request
for Order Directing Judgment Debtor Rana to Appear for
Examination in Aid of Enforcement of Judgment. [ECF No. 32].
On April 5, 2018, I granted Plaintiff's Request and
ordered Rana to appear for examination on May 7, 2018, [ECF
No. 40]. On May 7, 2018, however, Rana filed for bankruptcy
under Chapter 7. [ECF No. 48]. Consequently, Rana's
post-judgment examination was stayed.
corporate charter to Shaheen Group, LLC was revoked by the
state of Maryland [ECF No. 52-2], and Rana began operating
State Towing, LLC (“State Towing”) in 2017, [ECF
Nos. 52 at 3, 52-1]. According to Plaintiff, State Towing:
(1) utilizes several vehicles that were once operated by
Empire Towing; (2) serves former clients of Empire Towing;
and (3) “[i]n all respects . . . is run like Empire
Towing.” [ECF No. 52 at 3]. Plaintiff further alleges
that, “in order to finance and assist in the
establishment of State Towing, LLC,  Rana used assets
received, recovered or transferred from Empire Towing.”
Id. Accordingly, Plaintiff requested, and I granted,
limited post-judgment discovery to permit Plaintiff to
determine whether State Towing qualifies as Shaheen Group,
LLC's successor in interest. [ECF No. 70].
15, 2018, Plaintiff served a Subpoena Duces Tecum on
State Towing's resident agent, Rana, requiring production
by July 6, 2018. [ECF No. 76]. Rana's counsel responded
to Plaintiff with “a number of categories of
documents” on July 5, 2018. [ECF No. 94]. On July 16,
2018, Plaintiff's counsel and State Towing's counsel
spoke on the telephone regarding the production of the
subpoenaed documents and the inadequacy of State Towing's
production. Id. On July 18, 2018, Plaintiff inquired
about the status of the documents and State Towing's
counsel responded that more documents would arrive
“tomorrow.” Id. Plaintiff did not
receive any more documents or responses from State Towing.
Id. Plaintiff alleges that State Towing has failed
to produce critical documents in response to the Subpoena
Duces Tecum, including cancelled bank account
checks, correspondence with third party motor clubs, all
vehicle titles and registrations for vehicles used by State
Towing, payroll records for State Towing, and all
applications for insurance on State Towing's vehicles.
[ECF No. 94]. Thus, Plaintiff requests that I enforce the
Subpoena Duces Tecum served on State Towing, and
require State Towing to produce the requested documents.
Id. Plaintiff also seeks $1, 500.00 in
attorneys' fees and costs associated with the preparation
and filing of Plaintiff's Motion. [ECF No. 94-1].
Rule of Civil Procedure 45 establishes the rules for
subpoenas served upon individuals and entities that are not
parties to the underlying lawsuit.” United States
v. Star Scientific, Inc., 205 F.Supp.2d 482, 484 (D. Md.
2002) (citing Fed.R.Civ.P. 34(c)). Consistent with Rule 26,
Rule 45 subpoenas may be used to discover “any
nonprivileged matter that is relevant to any party's
claim or defense.” Boykin Anchor Co. Inc. v.
Wong, No. 5:10-CV-591-FL, 2012 WL 27328, at *2 (E.D.
N.C. Jan. 4, 2012). A non-party may object to a subpoena by:
“fil[ing] a motion to quash or modify the subpoena
pursuant to Fed.R.Civ.P. 45(c)(3)(A), seek[ing] a protective
order pursuant to Fed.R.Civ.P. 26(c), or … [by]
object[ing] to the production of documents by opposing a
motion to compel under Fed.R.Civ.P. 45(c)(2).” Star
Scientific, Inc., 205 F.Supp.2d at 484. Rule 45 further
provides that a party serving a subpoena may move the court
for an order compelling production, as Plaintiff has done in
this case. Fed.R.Civ.P. 45(d)(2)(B)(i).
Rana opposed Plaintiff's Motion to Enforce the Subpoena,
arguing that Rana's counsel has been prompt in responding
to Plaintiff's requests, that Rana is not a sophisticated
businessman and requires third parties to obtain and produce
responsive documents, and that Rana has already produced the
documents requested or is in the process of doing such. [ECF
No. 97]. Importantly, while Rana is the resident agent and
owner of State Towing, his response to Plaintiff's Motion
was not submitted on behalf of State Towing. Id.
Thus, there is no objection by State Towing currently before
this Court. With no objections from State Towing as to the
relevance of the documents requested by Plaintiff, I find
that the documents are both relevant and discoverable, as
they concern State Towing's potential successor
liability. Accordingly, I find that State Towing shall comply
with the Subpoena Duces Tecum and shall produce to
Plaintiff's counsel all requested documents no later than
October 15, 2018.
also seeks fees and costs. “The only authority for the
imposition of sanctions against a nonparty for failure to
comply with a subpoena is Rule 45(e).” In re NCAA
Student-Athlete Name & Likeness License Litig. for the N.
Dist. Cal., No. 1:11MC63, 2012 WL 2281253, at *7 (M.D.
N.C. June 18, 2012). Rule 45(e) allows the Court to hold
persons in contempt who “fail without adequate excuse
to obey the subpoena, ” but does not independently
provide for an award of fees and costs Id. Plaintiff
has not sought a contempt order, and cites no other authority
for awarding fees and costs in connection with a motion to
enforce a non-party subpoena. Accordingly, no such order is
the informal nature of this letter, it will be flagged as an
Opinion and docketed as an Order.
Stephanie A. Gallagher United ...