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Mahar v. US Xpress

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


October 28, 2010

CORNELIUS MAHAR AND MAUREEN MAHAR, PLAINTIFFS,
v.
US XPRESS, INC. AND GLORIA V. MORGAN, DEFENDANTS.

The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs Cornelius and Maureen Mahar brought this action against US Xpress, Inc. and Gloria Morgan for injuries and damages sustained in a tractor-trailer accident. (2d Am. Compl., Dkt. No. 148.) In anticipation of trial, the Mahars served a series of trial subpoenas upon defense counsel pursuant to defense counsel's agreement to accept service of subpoenas on behalf of US Xpress and its representatives. (See Sept. 16, 2010 Letter, Dkt. No. 165:2.) Among these subpoenas were (1) a subpoena to Marc F. Ullom, Esq., directing him to appear and testify at trial regarding his attendance at and involvement in a January 20, 2005 inspection of Morgan's tractor, (Dkt. No. 165:3); (2) subpoenas to witnesses Gloria Morgan, Richard Bonine, Charles Bailey, Rhonda Pegg, Sherri Gilbert, Michael Duffy, Richard Nicely, and Timothy Hicks, generally directing each individual to provide certified copies of various types of documents, (Dkt. No. 168:2); (3) subpoenas directing US Xpress to provide certified copies of various types of documents, (Dkt. Nos. 168:3-4); and (4) a subpoena directing US Xpress to testify and provide documents regarding its finances for purposes of punitive damages, (Dkt. No. 168:5). Pending are Mr. Ullom's motion to quash the subpoena directed to him and US Xpress's motion to quash the subpoenas directed to US Xpress and the individual witnesses. (Dkt. Nos. 164, 167.) For the reasons that follow, the motions to quash are denied.

II. Discussion

A. Subpoena to Marc Ullom

The Mahars concede that the original service and contents of the Ullom subpoena were inadequate. (See Pls. Mem. of Law at 1, Dkt. No. 171.) In response, the Mahars have demonstrated compliance with FED. R. CIV. P. 45 through personal service upon Mr. Ullom of a subpoena directing him to testify by deposition in Philadelphia, Pennsylvania, on October 29, 2010. (See Ullom Subpoenas, Dkt. Nos. 170:2, 170:4; see also Affs. of Service, Dkt. Nos. 170:3, 170:5.) Therefore, based on the Mahars' satisfaction of Rule 45's requirements, and insofar as they intend to tailor their examination and not to elicit privileged or irrelevant testimony from Mr. Ullom,*fn1 the court denies Mr. Ullom's motion to quash.

B. Subpoenas to Individual Witnesses

In qualifying the production requests contained in the individual witness subpoenas, the Mahars contend that they only seek certified copies of documents that are (1) in the individual witnesses' possession, (2) that fit within a specific category, and (3) that have not been produced. (See Pls. Mem. of Law at 2, Dkt. No. 174.) In other words, "[i]f the [witness] does not have anything in [his or her] possession related to that specific category, then nothing further must be done to comply with the demand." (Id.) Alternatively, in attempting to alleviate US Xpress's concerns, the Mahars are willing to withdraw the document production requests directed at each individual witness in exchange for US Xpress and Morgan's agreement to accept service of and comply with the subpoenas insofar as they direct each individual witness's appearance at trial.*fn2 (See Stipulation Offer, Dkt. No. 173:3.) Accordingly, in light of the outstanding stipulation offer-which is favored for several reasons, not least of which is to avoid the court's further and unnecessary involvement*fn3 -the motion to quash the individual witness subpoenas is denied.

C. Subpoena to US Xpress for Documents

In response to defense counsel's refusal to accept service of the production subpoenas directed to US Xpress, the Mahars have served US Xpress at its corporate offices in Chattanooga, Tennessee. (See US Xpress Subpoenas Dkt. Nos. 173:5-6; see also Affs. of Service, Dkt. No. 173:7.) Consequently, the Mahars' compliance with FED. R. CIV. P. 45 renders US Xpress's service objection moot.

As to the substance of its motion, US Xpress argues that the Mahars' production request constitutes an impermissible attempt to engage in further discovery. (See Defs. Mem. of Law at 9-10, Dkt. No. 169.)

Specifically, US Xpress contends-in broad and general terms-that the Mahars "were aware of the existence of such documents before the discovery deadline ... [but] most of these documents were not requested before discovery closed." (Defs. Mem. of Law at 10, Dkt. No. 169.) However, there is nothing in the nature of the Mahars' requests that suggests impropriety or bad faith. On their face, the requests seek certified copies of specifically categorized documentary evidence. Moreover, the timing of the requests and the dates stipulated for production indicate that the Mahars have taken the court's trial-preparation directives to heart and are in the process of complying with and meeting the court's orders. And while the requests may be unnecessarily broad or indefinite, US Xpress offers no evidentiary support of its contentions that would enable the court to evaluate whether the requests are duplicative or duplicitous. Accordingly, in light of the parties' failure to coherently present this issue, and because it is the parties who are in the best position to resolve such issues, the court denies US Xpress's motion to quash the corporate production subpoenas.

D. Subpoena to US Xpress Regarding Punitive Damages

Putting aside US Xpress's Rule 45 objection, which the Mahars have cured, (see US Xpress Subpoena, Dkt. No. 173:4; see also Aff. of Service, Dkt. No. 173:7), the Mahars concede that their subpoena directing US Xpress to produce a witness and documents regarding its financial status for punitive damages purposes is premature, (see Pls. Mem. of Law at 5-6, Dkt. No. 174; see also Defs. Mem. of Law at 11-12, Dkt. No. 169). Nonetheless, based on the conditional nature of the punitive damages issue,*fn4 and in light of the Mahars' assertion that their subpoena was intended to enhance judicial economy by putting US Xpress on notice of their request if and when the punitive damages inquiry is presented to the jury, the court denies US Xpress's motion to quash.

III. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Marc Ullom's motion to quash (Dkt. No. 164) is DENIED; and it is further

ORDERED that US Xpress and Gloria Morgan's motion to quash (Dkt. No. 167) is DENIED; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.

IT IS SO ORDERED.

Albany, New York.


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