United States District Court, D. New Jersey
C. MANNION UNITED STATES MAGISTRATE JUDGE
the Court is non-party DialAmerica Marketing, Inc.'s
(“DialAmerica”) letter requesting clarification
of its obligations “to diligently work towards
compliance with plaintiff Leyse's subpoena and …
to produce the Court-ordered discovery and to inform both
counsel … and this Court when DialAmerica's costs
… reach $21, 866.67.” DialAmerica contends that
“it is not reasonable to expect that [it] will be able
to complete in less than three weeks [by April 5, 2019] what
the previously-filed Bardwell Declaration stated will take
approximately six months to complete.” The Court will
treat DialAmerica's letter as an informal motion to
extend its time for compliance.
BACKGROUND & PROCEDURAL HISTORY
Leyse's discovery campaign with DialAmerica began in or
about July 2017.Discovery was supposed to end on November
30, 2017. However, the Court granted Mr. Leyse
several extensions to complete limited and specific discovery
with DialAmerica. After much motion practice, the Court
ordered DialAmerica to comply with the subpoena on November
requested a stay pending appeal. The request was
denied. Therefore, DialAmerica was required to
begin its compliance on November 27, 2018. Instead,
DialAmerica made no effort to comply.
January 25, 2019, the Court learned of DialAmerica's
non-compliance from its counsel. It was then that the Court
also learned of Mr. Leyse's complicity in the
non-compliance. The Court responded by establishing a
sixty-day deadline to complete the discovery and then
extended the deadline to April 5, 2019.
March 14, 2019, Mr. Leyse's counsel informed the Court of
DialAmerica's ‘belief' that the April
5th deadline did not apply to it. So, the Court
issued an order making even clearer that it did
served upon a non-party are governed by the Federal Rules of
Civil Procedure.Rule 45 bestows “broad enforcement
powers upon the court to ensure compliance with subpoenas,
while avoiding unfair prejudice to persons who are the
subject of a subpoena's commands.” The Rule
further provides that a person or entity subject to a
subpoena must be afforded “a reasonable time to
for an extension must be made in writing,  and courts
may extend almost any deadline for “good cause”
if a request is made before the time for compliance
expires. “A determination of good cause
depends on the diligence of the moving
party” where “[t]he moving party has the
burden of demonstrating that ‘despite its diligence, it
could not reasonably have met the scheduling order
deadline.'” Further, the absence of prejudice to
the nonmovant does not demonstrate good cause.
also be noted that Rule 1 commands that all rules “be
construed, administered, and employed by the court and the
parties to secure the just, speedy, and inexpensive
determination of every action and
DISCUSSION & ANALYSIS
has been afforded over four months to comply with the
subpoena. Compliance was required to begin on November 27,
2018 and the deadline for completion is April 5, 2019.
DialAmerica bears the burden of showing that it has been
diligent during this entire period and despite its diligence,
it cannot comply within the time allotted.
has miscalculated. Its argument relies upon two faulty
premises-that it could ignore the Court's November
27th Order until the Court prescribed a fixed
deadline and that DialAmerica alone could determine the pace
(or diligence) of its compliance efforts.
the Court ordered DialAmerica to comply on November 27, 2018.
If that order was insufficient to kickstart DialAmerica's
efforts, the order denying its request for a stay pending
appeal should have sufficed.
DialAmerica relies upon the Declaration of Michael R.
Bardwell to support its contention that “it is not
reasonable [for the Court] to expect that DialAmerica will be
able to complete in less than three weeks, ” by April
5, 2019 what was previously expected to “take
approximately six months.” Mr. Bardwell is a Vice
President at DialAmerica. He estimated that it would
take DialAmerica a total of 165 man-hours to identify the
putative class members.One dedicated employee working 35
hours per week could have completed the entire ...