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Ello v. Brinton

United States District Court, N.D. Indiana, Hammond Division

April 28, 2017

ANTHONY E. ELLO and EVELYN ELLO, Plaintiffs,
v.
GARY R. BRINTON and SEVEN PEAKS MARKETING CHICAGO, LLC, Defendants, SEVEN PEAKS MARKETING CHICAGO, LLC, Counter-Claimant,
v.
ANTHONY E. ELLO and EVELYN ELLO, Counter-Defendants.

          OPINION AND ORDER

          MAGISTRATE JUDGE JOHN E. MARTIN UNITED STATES DISTRICT COURT

         This matter is before the Court on the following:

         (1) Plaintiffs' Motion to Quash Subpoena [DE 87], filed by Plaintiffs on February 8, 2017, to which Defendants responded and Plaintiff replied.

         (2) Gary Brinton's Renewed Motion to Quash and for Protective Order Re: Horizon Bank Subpoena [DE 90] and Monica Brinton's Motion to Quash and for Protective Order Re: Horizon Bank Subpoena [DE 92], both filed on February 22, 2017, to which Plaintiffs responded and Monica Brinton replied.

         (3) Plaintiffs' Motion to Quash Horizon Bank Subpoena and for Protective Order [DE 106], filed by Plaintiffs on March 27, 2017, to which Defendants responded and Plaintiffs replied.

         (4) Plaintiffs' Motion to Quash Subpoenas and for Protective Order [DE 111], filed by Plaintiffs on April 17, 2017, to which Defendants have not yet responded.

         (5) Plaintiffs' Motion to Withdraw Their Motion to Quash Subpoenas and for Protective Order [DE 115], filed by Plaintiffs on April 26, 2017, to which Defendants have not yet responded.

         I. Background

         This case concerns a bowling alley lease agreement between Plaintiffs and Defendant Seven Peaks Marketing Chicago, LLC (“SPMC”). Plaintiffs allege that Defendant SPMC improperly terminated the lease in June 2014 and seek to hold both Defendant SPMC and Defendant Brinton, through an alter ego claim, liable for the breach. As demonstrated by the several motions listed above, discovery between the parties has been contentious. The Court addresses each contested subpoena, below.

         II. Defendants' Subpoena to Dorothy L. Kittredge, CPA

         On January 10, 2017, Defendants served a subpoena on Dorothy L. Kittredge, Plaintiffs' accountant. The subpoena requested documents related to Plaintiffs and their company, Ello & Ello, LLC, among others. Plaintiffs move to quash that subpoena. Defendants contend that Plaintiffs have waived any objection to the subpoenas because Plaintiffs filed their Motion to Quash more than 14 days after the Kittredge subpoena was served. Plaintiff concedes that the Motion to Quash was filed after the 14-day period for objections expired, but argues that the Court should nonetheless consider the merits of its request to quash.

         Rule 45(d)(2)(B), which governs objections made by anyone “commanded to produce documents or tangible things or to permit inspection, ” provides that objections must be served on the subpoenaing party within 14 days. However, Plaintiffs' objections do not fall under this Rule, as they were not commanded to produce anything by the Kittredge subpoena - their accountant was. Rule 45(d)(3), which governs motions to quash, provides that the motion must be “timely” filed. Some courts have interpreted Rule 45(d)(3)'s timeliness requirement to require objections within 14 days, although the Rule does not explicitly include that time frame. See, e.g., Edin v. Garner Family Enters., Inc., No. 1:11-CV-1300, 2012 WL 364088, at *1 (S.D. Ind. Feb. 1, 2012).

         Plaintiffs filed their Motion to Quash almost a month after Defendants served the Kittredge subpoena and 8 days after the subpoena's response date of January 31, 2017. Plaintiffs provide no reason for their delay in filing the Motion to Quash. Even setting aside the precedent requiring that motions to quash be filed within 14 days, Plaintiffs' Motion to Quash cannot be considered “timely” under Rule 45(d)(3)(A) by any available standard. Nothing in Rule 45(d)(3) suggests that the Court should consider whether to quash a subpoena that has already been complied with. The Rule requires a court to quash a subpoena that fails to allow a reasonable time to comply, requires compliance beyond certain geographic limits, requires disclosure of privileged material, or subjects a person to undue burden. Fed.R.Civ.P. 45(d)(3)(A)(i)-(iv). These listed categories require consideration of prospective, rather than retrospective, concerns.

         Even looking past the untimely nature of Plaintiffs' Motion to Quash, Plaintiffs' arguments in the Motion are almost entirely undeveloped. Plaintiffs' Motion to Quash was a total of three pages and does not cite a single case or specific Rule suggesting that the Court should quash the Kittredge subpoena. See Perez v. Illinois, 488 F.3d 773, 776-77 (7th Cir. 2007) (“[P]erfunctory and underdeveloped arguments are deemed waived.”). Plaintiffs' inadequate development of their arguments in the Motion, in addition to their failure to raise those arguments in a timely manner, prevents a decision on the Motion's merits.

         III. Defendants' Horizon Bank Subpoena

         On January 10, 2017, Defendants also issued a subpoena to Horizon Bank, seeking, among other information, documents relating to Plaintiffs and Ello & Ello, LLC. Without objection from Plaintiffs, Horizon Bank complied with the subpoena and produced several documents. On March 22, 2017, counsel for Horizon Bank informed the parties' counsel that Horizon Bank had Plaintiffs' personal tax returns and personal financial data, which are responsive to the subpoena's request but were not turned over due to an oversight. Based on the parties' briefing, it appears that Horizon Bank has still not yet turned over the tax returns or financial data because of Plaintiffs' ...


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