United States District Court, N.D. New York
FOR PLAINTIFFS: GEORGE TOMPKINS, III., ESQ., WILSON, ELSER LAW FIRM, New York, NY.
FOR ORISKA INS. CO.: DAVID A. BAGLEY, ESQ., KERNAN PROFESSIONAL GROUP, Oriskany, NY.
FOR DEFENDANTS: AVROM R. VANN, ESQ., AVROM R. VANN, P.C., New York, NY; SETH PETER ROBERT, ESQ., VANESSA M. CADY, ESQ., BROWN ROBERT, LLP, Fort Lauderdale, FL; STEPHEN B. RAKUSIN, ESQ., RAKUSIN LAW FIRM, Fort Lauderdale, FL.
DECISION AND ORDER
David E. Peebles, U.S. Magistrate Judge.
This action was commenced by Patriot National Insurance Group, Patriot Underwriters, Inc., and Guarantee Insurance Company, Inc., against Oriska Insurance Company (" Oriska" ) for the purpose of compelling Oriska's compliance with a subpoena duces tecum issued by this court in connection with a lawsuit pending in the United States District Court for the Southern District of Florida entitled Guarantee Ins. Co. v. Brand Mgmt. Serv. Inc., No. 12-CV-61670 (S.D. Fla. filed Aug. 12, 2012) (" underlying action" ). Currently before the court is plaintiffs' motion to compel Oriska's compliance with the subpoena, which is opposed by Oriska and defendants in the underlying action, and a cross-motion by Oriska for a protective order. Dkt. Nos. 1, 3, 5.
The court held a telephone conference on Monday, September 16, 2013, in which the parties in the underlying action and Oriska all appeared through counsel. Text Minute Entry Dated Sept. 16, 2013. The purpose of the telephone conference was to hear oral argument regarding whether the court should transfer the pending cross motions to the forum court, the Southern District of Florida. During that conference, I heard argument from all parties. Plaintiffs are in favor of transfer; both Oriska and the defendants, however, object to transfer. For the reasons set forth below, I find that transferring the pending motion to compel and cross-motion for a protective order is most appropriate in light of the familiarity the Southern District
of Florida has with the underlying action.
The case law on the issue regarding transfer appears to be equally divided. Some circuit courts of appeal have permitted transfer of a motion to compel compliance with or to quash a subpoena, while others do not. Compare Petersen v. Douglas Cnty. Bank & Trust Co., 940 F.2d 1389, 1391 (10th Cir. 1991) (" Nothing in Rule 45 or the commentary thereto and no case cited to us, however, compels us to conclude that only the Kansas magistrate had authority to rule on a motion to quash, effectively prohibiting him from transferring the motion to Nebraska." ) and In re Digital Equip. Corp., 949 F.2d 228, 231 (8th Cir. 1991) (" While the Oregon district court initially has exclusive jurisdiction to rule on the objections, it may in its discretion remit the matter to the court in which the action is pending." ) with In re Sealed Case, 141 F.3d 337, 341-42, 329 U.S.App. D.C. 374 (D.C. Cir. 1998) (finding that the district court exceeded its authority in transferring the motion to quash a subpoena to the forum court).
The Second Circuit has not spoken on the issue, and the district courts in this circuit appear to also be divided. In Westernbank Puerto Rico v. Kachkar, No. M8-85 X3, 2009 WL 856392 (S.D.N.Y. Mar. 27, 2009), the court refused to transfer a motion seeking compliance with a subpoena issued from that court based on the fact that the forum court, the District of Puerto Rico, would not have personal jurisdiction over the subpoenaed party. Westernbank Puerto Rico, 2009 WL 856392, at *3. In Shelby v. Ingersoll-Rand Co., No. 10-MC-0059A, 2011 WL 118613 (S.D.N.Y. Mar. 24, 2011), the court briefly acknowledged the division of authority on the issue, without discussion, and decided the motion to quash deposition and document subpoenas on the merits. Shelby, 2011 WL 118613, at *4. On the other hand, the court in Stanziale v. Pepper Hamilton LLP, No. M8-85, 2007 WL 473703 (S.D.N.Y. Feb. 9, 2007), after a thorough discussion of the split of authority, transferred a motion to compel compliance with a subpoena, concluding that " [a] judge who is fully familiar with the underlying litigation is in a better position to resolve such issues than a judge in a different district with no knowledge of the case." Stanziale, 2007 WL 473703, at *5; see also Air & Liquid Sys. Corp. v. Allianz Underwriters Ins. Co., No. 12-MC-0051, 2012 WL 3656418, at *2 (D. Conn. Aug. 23, 2012) (following Stanziale, and transferring motion to quash to forum court); Delvin v. Transp. Commc'ns Int'l Union, No. 95-CV-0742, 2000 WL 249286, at *1 (S.D.N.Y. Mar. 6, 2010) (" There is substantial support in the case[ ]law, among the commentators, and in the Advisory Committee Note to Rule 26(c) of the Federal Rules of Civil Procedure for the proposition that the court from which a subpoena has ...