Opinion
8:18CV23
03-31-2023
MILLARD GUTTER COMPANY, a Corporation d/b/a MILLARD ROOFING AND GUTTER; GILLICK ENTERPRISES, INC.; and GROSS POINT HOLDINGS, LLC; Plaintiffs, v. NATIONWIDE INSURANCE, a/k/a/ or d/b/a NATIONWIDE; and DEPOSITORS INSURANCE COMPANY, Defendants.
NATIONWIDE INSURANCE a/k/a or d/b/a NATIONWIDE, and DEPOSITORS INSURANCE COMPANY, Defendants, Matthew D. Hammes, NE #21484 Locher Pavelka Dostal Braddy & Hammes LLC Attorneys for Defendants
NATIONWIDE INSURANCE a/k/a or d/b/a NATIONWIDE, and DEPOSITORS INSURANCE COMPANY, Defendants,
Matthew D. Hammes, NE #21484
Locher Pavelka Dostal Braddy & Hammes LLC
Attorneys for Defendants
ORDER
Michael D. Nelson, United States Magistrate Judge
This matter comes before the Court regarding the parties' dispute over the timeliness of Defendants' Notice of Intent to Serve Subpoena Duces Tecum upon third parties pursuant to Rule 45 of the Federal Rules of Civil Procedure. Defendants issued the notice on February 27, 2023. Plaintiffs object to the notice as untimely and because it seeks documents irrelevant to this case. The Court held a hearing on the dispute on March 30, 2023. (Filing Nos. 66-67).
The court will sustain Plaintiffs' timeliness objections. Defendants maintain there was never a deadline set for serving Rule 45 subpoenas. While it is true that the case progression order filed on August 6, 2021, (Filing No. 40), provided the deadline for completing written discovery under Rules 33, 34, and 36 of the Federal Rules of Civil Procedure was December 15, 2021--without specifically identifying Rule 45-- the majority of courts within this circuit agree that Rule 45 subpoenas nevertheless constitute discovery and are therefore governed by the discovery deadlines set forth in a scheduling order. See, e.g., Cave v. Thurston, No. 4:18-CV-00342-KGB, 2022 WL 4599408, at *11 (E.D. Ark. Sept. 30, 2022) (finding Rule 45 subpoenas for discovery issued outside the Court's announced discovery deadline were untimely). The magistrate judges within this district also take the view that Rule 45 is encompassed within the written discovery deadline, and have subsequently revised its standard case progression order to specifically add Rule 45 to the written discovery deadline to eliminate any confusion. Although Rule 45 subpoenas may sometimes be employed in advance of trial and outside of a discovery deadline for the limited purposes of things such as memory refreshment or trial preparation, here, it is clear that the purpose of Defendants' Rule 45 subpoenas seek written discovery rather than documents for trial preparation. Therefore, Defendants' subpoenas seeking written discovery noticed for the first time on February 27, 2023, are well past the December 15, 2021, written discovery deadline.
And, the Court finds good cause does not exist to modify the progression order with regard to the December 15, 2021, written discovery deadline. See Fed.R.Civ.P. 16(b)(4). “The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements.” Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Good cause under Rule 16(b)(4) may be shown by identifying a change in the law, newly discovered facts, or another significant change in circumstance. See Ellingsworth v. Vermeer Mfg. Co., 949 F.3d 1097, 1100 (8th Cir. 2020). If the movant makes the requisite showing of diligence, then the court may consider other factors such as the degree of prejudice to the nonmoving party. See Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008).
There is a split of authority as to whether a motion to modify a progression schedule filed after a deadline has passed must satisfy the “excusable neglect” standard of Rule 6(b)(1)(B) in addition to, or in lieu of, the “good cause” standard under Rule 16(b). See LeFever v. Castellanos, No. 4:20CV3066, 2021 WL 5416240, at *2 (D. Neb. Nov. 19, 2021) (recognizing split); Doe v. Frakes, No. 8:19CV252, 2022 WL 507518, at *2 (D. Neb. Feb. 18, 2022) (finding the moving party must show both excusable neglect and good cause); Shank v. Carleton Coll., 329 F.R.D. 610, 614 (D. Minn. 2019) (“Arguably the excusable-neglect standard should apply when a party seeks to modify the scheduling order after the deadline has passed. But the plain text of Rule 16 does not make this distinction.”) (citations omitted); Burke v. Lippert Components Inc., No. 21-CV-3020-CJW-KEM, 2022 WL 17978806, at *2 (N.D. Iowa Dec. 28, 2022) (recognizing some district courts within this circuit have suggested that a party must also demonstrate excusable neglect to modify a deadline after it has passed); but see Petrone v. Werner Enterprises, Inc., 940 F.3d 425, 432 (8th Cir. 2019) (relying only on the “good cause” standard under Rule 16(b) when discussing what a litigant must show in order to extend a court-imposed expert disclosure deadline after the deadline has passed).
The same documents now sought by Defendants in the third party subpoena were originally sought by Defendants from Plaintiffs in 2019. Plaintiffs objected to those discovery requests. Defendants did not pursue the issue further and have never sought the Court's involvement, formally or informally, to obtain that discovery from Plaintiffs throughout this case and over several years. Throughout the course of this long-pending case, the Court has held numerous telephone conferences with counsel to discuss scheduling matters and discovery, most recently on February 24, 2023, to set the pretrial and trial dates, and not once did Defendants mention they were still seeking this written discovery. Given that this case has been pending since 2018, the fact that Defendants did not diligently pursue available avenues to obtain the discovery they first sought in 2019, that the dispositive motion is less than one-business day away, and that the pretrial and trial dates are set for this fall, the Court finds good cause does not exist to extend the written discovery deadline for Defendants to serve the noticed third party subpoenas.
Accordingly, IT IS ORDERED that Plaintiffs' timeliness objections to Defendants' Notice of Intent to Serve Rule 45 Subpoena are sustained.
NOTICE OF INTENT TO SERVE SUBPOENA DUCES TECUM
Pursuant to Fed.R.Civ.P. 45 and NECivR 45.1, Defendants Nationwide Insurance and Depositors Insurance Company (collectively "Defendants"), hereby provide notice that Defendants will serve a Subpoena Duces Tecum upon the following entities on March 9, 2023, unless all parties waive the 10-day notice period:
1. Mejia Roofing & Contractors, Inc., 2910 Daniell Circle, Bellevue, NE 68123
2. SOS Heating, Cooling & Electrical Co., Inc., 8314 Maple Street, Omaha, NE 68134
3. MWSS, Inc., 28602 S. State Route D., Cleveland, MO 64734.
A copy of the subpoenas Defendants' intend to issue are attached hereto. Defendants will issue the subpoenas on or after March 9, 2023 (or earlier should the 10-day notice period be waived), and will command the materials sought to be produced to reach the office of Matthew D. Hammes on or before March 22, 2023 or as otherwise set forth within each subpoena.
AO 88B (Rev, 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action
United States District Court for the District of Nebraska
MILLARD GUTTER CO., GILLICK & GROSS POINT, Plaintiff
v.
NATIONWIDE INSURANCE CO. AND DEPOSITORS' INSURANCE CO. Defendant
Civil Action No. 8:18-CV-23
SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
Mejia Roofing & Contractors, Inc., 2910 Daniell Circle, Bellevue, NE 68123
To: ______ (Name of person to whom this subpoena is directed)
[√] Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material:
SEE ATTACHED EXHIBIT "A"
Place:
Looher Pavelka Dostal Braddy & Hammes LLC
2002 Douglas Street, Suite 200, Omaha, NE 68102
Date and Time:
March 17 2023 by mail
March 22, 2023 by 10:00 a.m. in person
[ ] Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:
Date and Time:
The following provisions of Fed.R.Civ.P. 45 are attached - Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so.
Dated:_____
CLERK OF COURT
_____Signature of Clerk or Deputy Clerk
____Attorney's signature
OR
The name, address, e-mail address, and telephone number of the attorney representing (name of party) Nationwide Insurance and Depositors Insurance, who issues or requests this subpoena, are: Matthew D. Hammes, mhammes@lpdbhlaw.com, 2002 Douglas Street, Suite 200, Omaha, NE 68102, (402) 898-7000
Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R, Civ. P. 45(a)(4).
EXHIBIT A
In lieu of appearing in person on Wednesday, March 22, 2023 (at the place and time indicated on the face of this Subpoena) to appear and deliver true and accurate copies of the foregoing requested documents, items and/or things, you are hereby authorized to instead send in the mail to: Matthew D. Hammes, Locher Pavelka Dostal Braddy & Hammes, LLC, 200 The Omaha Club, 2002 Douglas Street, Omaha, NE 68102, on or before Friday, March 17,2023, true and accurate copies of the following documents, items and/or things:
1. All communications and correspondence of any type or variety between Mejia Roofing & Contractors, Inc. ("MRC") and Millard Gutter Company, a Corporation doing business as Millard Roofing and Gutter ("Millard Gutter"), including any and all communications and correspondence between any of MRC owner, officer, manager, foreman, employee, representative, agent, subcontractor or attorney and any Millard Gutter owner, officer, manager, foreman, employee, representative, agent, contractors, suppliers, materialmen, subcontractors or attorney, pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC.
2. All communications and correspondence of any type or variety between Mejia Roofing & Contractors, Inc. ("MRC") and Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC, including any and all communications and correspondence between any MRC owner, officer, manager, foreman, employee, representative, agent, subcontractor or attorney and any Quality Brands', Gillick Enterprises, Inc.s' and/or Gross Point Holdings, LLC's owner(s), officer(s), manager(s), foreman, employee(s), representative(s), agent(s), contractors, suppliers, materialmen, subcontractor(s) or attorney(s), pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC.
3. All bids, bid proposals, estimates, accepted bids, accepted proposals, accepted estimates, invoices, receipts, work orders, bills and any other writing of any type, variety or description pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC.
4. All documents, including but not limited to copies of all checks, accounting records, lien releases, waivers of mechanic's or supplier's lien, and any other writing of any type, variety or description reflecting any monies paid to Mejia Roofing & Contractors, Inc. ("MRC") from any source for any work, labor and/or provision of any supplies, materials, equipment, or payment of any permits, fees, or other costs, pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC.
5. All documents reflecting the names of all persons, contractors, subcontractors, materialmen, or suppliers providing Mejia Roofing & Contractors, Inc. ("MRC") with any work, labor and/or provision of any supplies, materials, equipment, or payment of any permits, fees, or other costs, pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC.
6. All writings of any type, variety or description evidencing any and all work and labor actually performed by Mejia Roofing & Contractors, Inc. ("MRC") or anyone acting on its behalf pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC.
7. Any and all photographs, videos or other documents, items or things memorializing, evidencing, and/or documenting the work performed and/or goods provided by Mejia Roofing & Contractors, Inc. ("MRC") or anyone acting on its behalf at the property located at 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC.
8. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 1 attached hereto.
9. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 2 attached hereto.
10. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 3 attached hereto.
11. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 4 attached hereto.
12. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 5 attached hereto.
13. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 6 attached hereto.
14. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 7 attached hereto.