Fradella v. Coca-Cola Company et al, No. 2:2017cv09622 - Document 134 (E.D. La. 2018)
Court Description: ORDER AND REASONS - IT IS ORDERED that Defendants' 118 motion to quash be and is hereby GRANTED. Signed by Judge Susie Morgan. (bwn)
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Fradella v. Coca-Cola Company et al Doc. 134 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A PAM FRAD ELLA, Plain tiff CIVIL ACTION VERSU S N O. 17-9 6 2 2 COCA-COLA COMPAN Y, ET AL., D e fe n d an ts SECTION : “E” ORD ER AND REASON S Before the Court is a m otion to quash filed by Defendants, The Coca-Cola Com pany and Coca-Cola Refreshm ents USA, Inc. 1 The m otion is opposed. 2 Defendants have filed a reply. 3 For the following reasons, Defendants’ m otion to quash is GRAN TED . BACKGROU N D On Septem ber 1, 20 17, Plaintiff filed suit in the 24th J udicial District Court for the Parish of J efferson, State of Louisiana, alleging she “becam e ill” after consum ing a Gold Peak Tea contain ing “m old or som e other deleterious substance.”4 On Septem ber 26, 20 17, Defendants rem oved the case to this Court. 5 Plaintiff brings this prospective class action on behalf of “[a]ll Louisiana residents who, any tim e from Septem ber 1, 20 16 to present, purchased a bottle of Gold Peak Tea of any flavor an d any size, that contained visible m old or som e other visible deleterious substance, and suffered econom ic loss.”6 According to Plaintiff, “there are thousands of 1 R. Doc. 118 . R. Doc. 123. 3 R. Doc. 133. 4 R. Doc. 1-1 at ¶¶ 10 – 13. 5 R. Doc. 1. 6 R. Doc. 97. 2 1 Dockets.Justia.com Louisiana residents who have purchased Gold Peak Tea and been adversely effected by this unwholesom e product.”7 On J une 28, 20 18, Court set a class certification hearing to take place on Thursday, J uly 19, 20 18. 8 In connection with the hearing, the Court ordered the parties to exchange and file witness and exhibit lists. 9 On J uly 3, 20 18, Plaintiff served counsel for Defendants with a subpoena to appear an d testify directed to the “Corporate Representative of [Defendants].”10 The subpoena purported to com pel a corporate representative for Defendants to appear at the J uly 19, 20 18 class certification hearing and to bring “[a]ny and all inform ation” related to issues Plaintiff identified in a docum ent she attached to the subpoena as Exhibit “A.”11 Exhibit A is a list of seventeen requests for docum ents and other inform ation related to com plaints of m old in Gold Peak Tea. 12 On J uly 9, 20 18, Defendants filed the instant m otion to quash. 13 LEGAL STAN D ARD The quashing or m odification of a subpoena is governed by Federal Rule of Civil Procedure 45. 14 The Court m ust quash or m odify a subpoena that “(i) fails to allow a reasonable tim e to com ply; (ii) requires a person to com ply beyond the geographical lim its specified in Rule 45(c); (iii) requires disclosure of privileged or other protected m atter, if no exception or waiver applies; or (iv) subjects a person to undue burden.”15 Although Rule 45 allows subpoena service anywhere in the United States, a subpoena notice can only direct com pliance as defined by FRCP 45(c), which states: 7 R. Doc. 1-1 at ¶ 25. R. Doc. 113. 9 Id. at 2. 10 R. Doc. 118-2. 11 Id. 12 Id. at 4– 5. 13 R. Doc. 118 . 14 Gom ez ex rel. “YHL” v. N orm and, No. 16-170 46, 20 17 WL 2868 850 , at *1 (E.D. La. J uly 5, 20 17). 15 F ED . R. CIV. P. 45(d)(3)(A)(i)-(iv). 8 2 ( c) Place o f Co m p lian ce . (1) For a Trial, Hearing, or Deposition. A subpoena m ay com m and a person to attend a trial, hearing, or deposition only as follows: (A) within 10 0 m iles of where the person resides, is em ployed, or regularly transacts business in person; or (B) within the state where the person resides, is em ployed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is com m anded to attend a trial and would not incur substantial expen se. “If the subpoena falls outside of the scope of Rule 45(c), Rule 45(d)(3)(A)(ii) requires the Court to quash the subpoena following tim ely m otion.”16 D ISCU SSION Defendants contend the subpoena m ust be quashed for three reasons: (1) “it is untim ely and im properly attem pts to circum vent this Court’s Scheduling Order”; (2) “the subpoena is procedurally im proper as it violates the geographical lim its set forth by Fed. R. Civ. P. 45(c)”; and (3) it “violates the rules for proper service under Fed. R. Civ. P. 45(b).”17 In opposition, Plaintiff argues, (1) the Court’s scheduling order notwithstanding, there is “no law that prevents the plaintiff from calling a witness live at trial”; (2) Plaintiff’s subpoena is proper, as it “seeks to com m and a party’s officer in the state where the party regularly transacts business”; and (3) because the corporate officers’ attorney was served with the subpoena, it was properly served on an agent authorized by law to accept service. 18 Because the Court finds the subpoena does not com ply with the geographical lim its set forth by Federal Rule of Civil Procedure 45(c), the Court will grant Defendants’ m otion to quash. Rule 45 was am en ded in 20 13. The Advisory Com m ittee Notes to the 20 13 Am endm ents provide significant guidance on its application. The Notes explain, “Rule 16 Roundtree v . Chase Bank USA, N .A., No. 13– 239, 20 14 WL 2480 259, at *2 (W.D. Wash. J une 3, 20 14). R. Doc. 118 at 1. 18 R. Doc. 123 at 1. 17 3 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party officer to travel m ore than 10 0 m iles unless the party or party officer resides, is em ployed, or regularly transacts business in person in the state.”19 Moreover, “Rule 45(d)(3)(A)(ii) directs the court to quash any subpoena that purports to com pel com pliance beyond the geographical lim its specified in Rule 45(c).”20 Thus, “[b]ecause Rule 45(c) directs that com pliance m ay be com m anded only as it provides, these am endm ents resolve a split in interpreting Rule 45’s provisions for subpoen aing parties and party officers.”21 In other words, the “20 13 Am endm ent to Federal Rule of Civil Procedure 45 resolved” the “com peting authority that debates whether courts have authority to subpoena witnesses who reside m ore than 10 0 m iles from the place of trial,” includin g parties and party officers. 22 In Roundtree v. Chase Bank USA, N .A., for exam ple, a party served a subpoena on a corporate representative who lived and worked in Arizona, com m anding him to testify at a trial in Seattle, Washington. 23 The U.S. District Court for the Western District of Washington quashed the subpoena, holding that, “[r]egardless of his status as nonparty witness, party, or party officer, he is m ore than 10 0 m iles from Seattle and in another state. Therefore, the Federal Rules of Civil Procedure do not authorize this Court to com pel his attendance.”24 Because the subpoenaed party did not have any em ployees 19 F ED. R. CIV. P. 45, 20 13 cm ts. Id. 21 Id. 22 Passm ore v. Barrett, No. 13- 290 , 20 16 WL 1253541, at *2 (N.D. Ind. Mar. 31, 20 16). 23 No. 13-239, 20 14 WL 248 0 259, at *1– 2 (W.D. Wash. J une 3, 20 14). 24 Id. at *2; see also Herm itage Glob. Partners LP v. Prevezon Holdings Ltd., No. 13-6326, 20 15 WL 728463, at *4 (S.D.N.Y. Feb. 19, 20 15) (“[T]he plain language of Rule 45(c) indicates that the court can not com pel a witness—as an in dividual or as a corporate representative—to travel m ore than 10 0 m iles from a place of residence, em ploym ent, or regular business to testify at a deposition.”). 20 4 within 10 0 m iles of the deposition location, the court quashed the subpoena pursuant to Rule 45(c). 25 In this case, the headquarters for both Defendants is in Atlanta, Georgia, which is greater than 10 0 m iles from New Orleans, Louisiana. 26 None of Defendants’ em ployees who m ight possess the inform ation requested in Exhibit A reside in Louisiana, nor do any of Defendants’ em ployees who m ight possess this knowledge live within 10 0 m iles of the courthouse. Thus, Plaintiff’s subpoena falls outside of the scope of Rule 45(c). As a result, the Court grants Defendants’ m otion to quash pursuant to Rule 45(d)(3)(A)(ii). 27 Accordingly; CON CLU SION IT IS ORD ERED that Defendants’ m otion to quash be and is hereby GRAN TED . 28 N e w Orle a n s , Lo u is ian a o n th is 18 th d ay o f J u ly, 2 0 18 . __________________ ________ SU SIE MORGAN U .S. D ISTRICT COU RT JU D GE 25 20 14 WL 2480 259, at *2; see also Ishee v. Fed. N at’l Mortg. Ass’n , No. 13 -234, 20 14 WL 12638499, at *1– 2 (S.D. Miss. Nov. 13, 20 14) (rejectin g the argum ent that the defendant’s corporate representative could be com pelled to attend trial, since his em ployer conducts busin ess in the state where the trial would be held); Passm ore v. Barrett, 20 16 WL 1253541, at *2 (quashin g subpoena directed to defendant who lived outside of Indiana and otherwise m ore than 10 0 m iles from the courthouse). 26 According to Google Maps, Defendants’ headquarters in Atlanta, Georgia is approxim ately 425 m iles away as the crow flies from the Federal Courthouse in New Orleans, Louisiana. 27 Roundtree v . Chase Bank USA, N .A., No. 13– 239, 20 14 WL 2480 259, at *2 (W.D. Wash. J une 3, 20 14). 28 R. Doc. 118 . 5
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