Thuman v. Dembski et al, No. 1:2013cv01087 - Document 175 (W.D.N.Y. 2022)

Court Description: DECISION and ORDER GRANTING 169 Motion to Compel filed by Defendant Dembski. Reliance and Grenda shall comply with Defendant Dembski's subpoena WITHIN 30 DAYS of this Decision and Order. The non-parties are reminded that failure to comply w ith this Decision and Order may result in a finding of contempt of court pursuant to Fed.R.Civ.P. 45(g). SO ORDERED. Signed by Hon. Leslie G. Foschio on 09/29/2022. A copy of this Decision and Order was mailed to non-parties Reliance and Grenda at 2686 William Street, Buffalo, NY 14227. (TAH)

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Thuman v. Dembski et al Doc. 175 Case 1:13-cv-01087-RJA-LGF Document 175 Filed 09/29/22 Page 1 of 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _________________________________________ GREGORY J. THUMAN, DECISION and ORDER Plaintiff, v. TIMOTHY S. DEMBSKI, SCOTT M. STEPHAN, PRESTIGE WEALTH MANAGEMENT FUND, LP, PRESTIGE WEALTH MANAGEMENT, LLC, MID-ATLANTIC CAPITAL CORPORATION, RELIANCE FINANCIAL ADVISORS, LLC, 13-CV-01087A(F) Defendants. _________________________________________ APPEARANCES: WEBSTER SZANYI, LLP Attorneys for Plaintiff THOMAS S. LANE, MICHAEL P. McCLAREN, D. CHARLES ROBERTS, JR., and KEVIN GEORGE COPE, of Counsel 1400 Liberty Building Buffalo, New York 14202 LIPPES MATHIAS WEXLER FRIEDMAN LLP Attorneys for Defendant Dembski DENNIS C. VACCO, and ERIC MICHAEL SOEHNLEIN, of Counsel 50 Fountain Plaza Suite 1700 Buffalo, New York 14202 K&L GATES, LLP Attorneys for Defendant Mid-Atlantic Capital Corp. ERIC R.I. COTTLE, of Counsel 389 Lexington Avenue New York, New York 10022 and JAMES P. ANGELO, of Counsel 210 Sixth Avenue Pittsburgh, Pennsylvania 15222 Dockets.Justia.com Case 1:13-cv-01087-RJA-LGF Document 175 Filed 09/29/22 Page 2 of 4 In this securities fraud case, by papers filed August 15, 2022, Defendant Dembski moves, pursuant to Fed.R.Civ.P. 37 1 and 45(d)(2)(B)(i), for an order compelling compliance with a subpoena duces tecum pursuant to Fed.R.Civ.P. 45(a)(1)(A) (“Rule 45(_)”) seeking production, relating to Plaintiff’s fraud claims against Dembski, of records in the custody, control or possession of Reliance Financial Advisors, LLC (“Reliance”) and one Walter Grenda, a principal of Reliance (“Grenda”), 2 (Dkt. 169-2 at 2) (“the subpoena”). The subpoena was served on Reliance and Grenda’s attorney, Joseph G. Makowski (“Makowski”) by e-mail as agreed to by Makowski. See Dkt. 169-2 at 4. No objections to the subpoena were timely served by either Reliance or Grenda as required by Fed.R.Civ.P. 45(d)(2)(B). Defendant’s motion was also served on Makowski on August 15, 2022. See Dkt. 169-3 at 1. According to the Scheduling Order for the motion, responses to the motion were due by September 6, 2022; replies were due September 16, 2022. Dkt. 170. To date, no responses to the Defendant’s motion have been filed nor is there any indication of compliance with the subpoena. The Fifth Amended Scheduling Order in the case requires discovery to be completed by October 31, 2022 (Dkt. 173). It is well established that a party may move pursuant to Rule 45(d)(2)(B) to compel against a non-party which fails to respond to a properly served non-party subpoena, see In Re John Adams Assocs., Inc., 255 F.R.D. 7, 7 (D.D.C. 2008); see 1 Defendant’s motion references Fed.R.Civ.P. 31 which the court assumes is a typographical error as Rule 31 is inapplicable to the motion. 2 Reliance was previously a party to this action until it was dismissed, by order of Judge Arcara on March 30, 2022, as a party based on Plaintiff’s failure to prosecute. See Dkt. 141. Grenda has not been a party to the instant action. 2 Case 1:13-cv-01087-RJA-LGF Document 175 Filed 09/29/22 Page 3 of 4 also United States ex rel. Ortiz v. Mount Sinai Hospital, 169 F.Supp.3d 358, (S.D.N.Y. 2016) (district court had authority to compel non-party to comply with subpoena seeking production of defendant’s information where plaintiff made motion in court in district where compliance with subpoena was sought); see also Baicker-McKee, Janssen, Corr, FEDERAL CIVIL RULES HANDBOOK (2021 Thomson Reuters) at 1165 (even in the absence of objections, Rule 37(a) is a proper basis to compel compliance with a subpoena), and courts may find that the defaulting non-party concedes the merits of a motion to compel such non-party’s compliance. See, c.f., Lennon v. Allegiance Accounting Services, LLC, 2020 WL 13441772, at * 1 (W.D.N.Y. Oct. 20, 2020 (“a defendant’s unexcused failure to respond to a motion to compel permits the court to deem the merits of the motion to be conceded.”). Based on the record, both Reliance and Grenda have both failed to comply with the Defendant’s subpoena, and have also failed to respond to the instant motion. Accordingly, the court finds that the subpoena seeks relevant information as permitted by Fed.R.Civ.P. 26(b)(1) and is not burdensome. See Fed.R.Civ.P. 45(d)(1) (party issuing Rule 45 subpoena required to minimize burden of production to non-party) and, as such, Defendant’s motion should be GRANTED. 3 Case 1:13-cv-01087-RJA-LGF Document 175 Filed 09/29/22 Page 4 of 4 CONCLUSION Based on the foregoing, Defendant’s motion (Dkt. 169) is GRANTED. Reliance and Grenda shall comply with Defendant’s subpoena within 30 days of this Decision and Order. The non-parties are reminded that failure to comply with this Decision and Order may result in a finding of contempt of court pursuant to Fed.R.Civ.P. 45(g). SO ORDERED. /s/ Leslie G. Foschio _________________________________ LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE Dates: September 29th, 2022 Buffalo, New York 4

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