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Israel v. Carpenter

United States District Court, S.D. New York
Jun 28, 2002
95 Civ. 2703 (DAB) (JCF) (S.D.N.Y. Jun. 28, 2002)

Summary

finding that 92-day delay warranted waiver

Summary of this case from Sines v. Yiannopoulos

Opinion

95 Civ. 2703 (DAB) (JCF)

June 28, 2002


MEMORANDUM AND ORDER


The plaintiffs in this action have each obtained a judgment against Daniel E. Carpenter. No part of the judgment has been satisfied, and the plaintiffs have conducted post-judgment discovery concerning Mr. Carpenter's income and assets. In connection with that discovery they have issued thirteen subpoenas on non-parties. Mr. Carpenter has now filed two motions pursuant to Rule 26 of the Federal Rules of Civil Procedure seeking a protective order relieving the non-parties of the obligation to comply with the subpoenas. Non-parties Benistar, Benistar Employee Services Trust Corporation, Benistar Admin Services, Inc., Benistar Group, Ltd., Benistar Corporation, Benistar Capital, LLC, Benistar Insurance Group, Benistar Ltd., and Health Resources Organization, Inc. (collectively, the "Benistar movants") have also moved to quash the subpoenas served upon them. Finally, the plaintiffs have cross-moved for an order finding Mr. Carpenter in contempt and for other related relief.

Mr. Carpenter lacks standing to challenge the subpoenas. In the absence of a claim of privilege or proprietary interest, parties to an action may not generally object to a subpoena served on a non-party. See Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975); Bulkmatic Transport Co. v. Pappas, No. 99 Civ. 12070, 2001 WL 504839, at *2 (S.D.N.Y. May 11, 2001); United States v. Nachamie, 91 F. Supp.2d 552, 558 (S.D.N.Y. 2000). Mr. Carpenter has made no such claim here. To the contrary, he has disavowed any ownership interest in the subpoenaed entities.

The Benistar movants, though they have standing to challenge the subpoenas served upon them, have waived any objections by failing to raise them in a timely manner. Rule 45(c)(2)(B) provides that "a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena . . . serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials." Here, the return date of the subpoenas was February 19, 2002, and the motion to quash was not filed until May 22, 2002, 92 days later. The Benistar movants have offered no persuasive excuse for their delay, and their motion is therefore denied. See Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996); Winchester Capital Management Co. v. Manufacturers Hanover Trust Co., 144 F.R.D. 170, 176 n. 2 (D. Mass. 1992); Deal v. Lutheran Hospitals Homes, 127 F.R.D. 166, 167-68 (D.Alaska 1989).

Enforcement of the subpoenas shall, however, be conditioned upon payment by the plaintiffs of the reasonable costs of production and copying incurred by the non-parties.

This cost-shifting is warranted both by the fact that the non-parties have no stake in this litigation and by the broad nature of the subpoenas issued by the plaintiffs. See In re Law Firms of McCourts and McGrigor Donald, No. M. 19-96, 2001 WL 345233, at *1-3 (S.D.N.Y. April 9, 2001); Standard Chlorine of Delaware, Inc. v. Sinibaldi, 821 F. Supp. 232, 262-64 (D. Del. 1992).

The plaintiffs' motion for contempt and related relief is premature. Although they have presented evidence sufficient to raise questions about Mr. Carpenter's candor that justify further discovery, the plaintiffs have not yet established a basis for a finding of contempt or issuance of injunctive relief.

Conclusion

For the reasons set forth above, Daniel E. Carpenter's motion for a protective order is denied; the motion of the Benistar movants to quash the subpoenas is denied, and the non-parties shall promptly comply with them on the condition that the plaintiffs pay the reasonable costs of production and copying; and the plaintiffs' cross-motion to hold Mr. Carpenter in contempt and for related relief is denied.

His motion to file a surreply, however, is granted, and I have considered the arguments contained in that submission.

SO ORDERED.


Summaries of

Israel v. Carpenter

United States District Court, S.D. New York
Jun 28, 2002
95 Civ. 2703 (DAB) (JCF) (S.D.N.Y. Jun. 28, 2002)

finding that 92-day delay warranted waiver

Summary of this case from Sines v. Yiannopoulos

denying Carpenter's Rule 26 motion seeking a protective order relieving non-parties of the obligation to comply with subpoenas issued by Israel and Taylor, denying cross-motion by Israel and Taylor for an order of contempt and related relief against Carpenter, and denying non-parties' motion to quash subpoenas

Summary of this case from Voluntary Benefit Systems, Inc. v. Israel
Case details for

Israel v. Carpenter

Case Details

Full title:DONALD M. ISRAEL and MARK R. TAYLOR, Plaintiffs, v. DANIEL E. CARPENTER…

Court:United States District Court, S.D. New York

Date published: Jun 28, 2002

Citations

95 Civ. 2703 (DAB) (JCF) (S.D.N.Y. Jun. 28, 2002)

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