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Molefi v. Oppenheimer Trust

February 15, 2007

DOROTHY MOLEFI, ET AL., PLAINTIFFS,
v.
THE OPPENHEIMER TRUST, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pohorelsky, Magistrate Judge

OPINION AND ORDER

Judge Block has referred this matter to me, see 28 U.S.C § 636(b)(1)(A), to determine whether sanctions, in the form of attorneys' fees and costs, pursuant to Rule 45 of the Federal Rules of Civil Procedure, should be imposed upon Edward Fagan, plaintiffs' counsel, for improperly issuing a subpoena to Dumisa Ntsebeza, a non-party to this action. The subpoena was quashed by an earlier ruling of this court.*fn1

For the reasons stated below, the court awards the movant, Mr. Ntsebeza, $14,369.25 in attorneys' fees and $404.50 in related costs and expenses as sanctions to be paid by counsel for the plaintiffs, Edward Fagan, Esq.

BACKGROUND

The circumstances surrounding the service and issuance of the subpoena are relevant to the court's decision and will be recounted briefly here.*fn2

This dispute is loosely related to the well-publicized litigation involving the now abolished South African apartheid regime. Prior to the inception of this matter, Mr. Fagan had represented a different set of plaintiffs in a multidistrict consolidated case before Judge Sprizzo in the Southern District of New York. That case, In re South African Apartheid Litigation, involved allegations that various multinational corporations violated international law, the Alien Tort Claims Act, and other federal statutes, by having conducted business with the South African government before the country was liberated and thus, indirectly or directly, aided the criminal apartheid regime.*fn3

A week before oral argument on a motion to dismiss in the MDL matter was to take place, Mr. Ntsebeza, who was a member of the legal team prosecuting the multidistrict action (as was Mr. Fagan), stripped Mr. Fagan of his authority to argue the case on behalf of the plaintiffs. Ms. Diane Sammons, who is pressing the present application on behalf of Mr. Ntsebeza here, took over Mr. Fagan's role in the litigation. Oral argument eventually proceeded in the Southern District as scheduled with Mr. Ntsebeza in attendance, having traveled there from his residence in South Africa.

In a surprising turn of events, Mr. Fagan, at the conclusion of the proceeding and apparently in "full view of the international and national media," personally handed Mr. Ntsebeza a subpoena (the one eventually quashed by this court). (Certification of Diane Sammons ¶ 8, attached to Mot. to Quash.) This subpoena, as it was later discovered, was issued in connection with an action that Mr. Fagan had hastily instituted in this district, i.e., the present matter, on the same day he served Mr. Ntsebeza the subpoena. (See Molefi Compl., Nov. 6, 2003, available at docket entry no. 1.) Mr. Fagan, however, never served any defendant in this action with copies of the subpoena or even the complaint for that matter, and still has not done so to date. Indeed, aside from litigation involving the subpoena, Mr. Fagan has done nothing to advance the case while it was pending in this district or after it was transferred to the Southern District and consolidated with the MDL matter. Counsel for Mr. Ntsebeza subsequently filed a motion to quash, arguing that the subpoena was issued for "retaliatory" purposes and pointing to various deficiencies infecting the subpoena.

This court, after reviewing papers and entertaining argument, agreed with Mr. Ntsebeza, finding, among other things, that the subpoena contained various procedural defects, and granted the motion to quash. In issuing its ruling, this court also suggested that, because of the near frivolous nature of the subpoena, sanctions may be warranted pursuant to Rule 45 of the Federal Rules of Civil Procedure. The court declined to make a definitive ruling on that issue, however, so it could receive the guidance of further briefing by the parties, including any opposition Mr. Fagan, who made no appearance at the hearing, may have wished to file. The matter has now been fully briefed, and the court has again received no response from Mr. Fagan.

DISCUSSION

I. Motion for Sanctions Under Rule 45

The court first addresses the threshold issue of whether sanctions, in the form of attorneys' fees, are warranted.*fn4 Rule 45(c)(1) imposes a duty upon a party issuing a subpoena to "take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Fed. R. Civ. P. 45(c)(1). To ensure compliance with this requirement, the court is authorized to "impose upon the party or attorney in breach of [the] duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee." Id.

There is scant authority in this circuit as to when and under what circumstances sanctions under Rule 45(c)(1) should be imposed. According to the 1991 Advisory Committee Notes, however, the rule's sanctions provision was intended primarily to protect "a non-party witness as a result of a misuse of the subpoena." Fed. R. Civ. P. 45(c)(1) advisory committee's note (1991) (emphasis added); see also Jones v. Hirschfeld, 219 F.R.D. 71, 74 (S.D.N.Y. 2003) (Gorenstein, Mag. J.) ("Fed. R. Civ. P. 45(c) provides additional protection for non-parties subject to a subpoena by mandating that a court 'quash or modify the subpoena if it . . . subjects [the] person to undue burden.' ") (quoting Fed. R. Civ. P. 45(c)(3)(A)(iv)). There is little doubt then that Rule 45(c)(1) was intended to apply to the service of unduly burdensome subpoenas on non-parties like Mr. Ntsebeza here.

The answer as to whether sanctions should ultimately be imposed against Mr. Fagan, the court finds, is closely tied to its findings on the motion to quash and the extent to which those findings represent a failure by Mr. Fagan to carry out his Rule 45-mandated duty to "take reasonable steps to avoid imposing an undue burden" on Mr. Ntsebeza. Fed. R. Civ. P. 45(c)(1). This is a two-party inquiry. The court must determine whether the subpoena imposed an undue burden on Mr. Ntsebeza, and, if so, what, if any "reasonable steps" Mr. Fagan took to avoid imposing such a burden. See Builders Ass'n of Greater Chicago v. City of Chicago, No. 96 C 1122, 2002 WL 1008455, at *4 (N.D. Ill. May 13, 2002) ...


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