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Leyse v. Bank of America, N.A.

United States District Court, D. New Jersey

March 22, 2019

Leyse
v.
Bank of America. N.A.

          LETTER OPINION-ORDER

          STEVEN C. MANNION UNITED STATES MAGISTRATE JUDGE

         Dear Counsel:

         Before 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.”[1] 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.”[2] The Court will treat DialAmerica's letter as an informal motion to extend its time for compliance.

         I. BACKGROUND & PROCEDURAL HISTORY

         Mr. Leyse's discovery campaign with DialAmerica began in or about July 2017.[3]Discovery was supposed to end on November 30, 2017.[4] 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 27, 2018.[5]

         DialAmerica requested a stay pending appeal.[6] The request was denied.[7] Therefore, DialAmerica was required to begin its compliance on November 27, 2018. Instead, DialAmerica made no effort to comply.

         On 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.[8]

         On 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 apply.[9]

         II. LEGAL STANDARD

         Subpoenas served upon a non-party are governed by the Federal Rules of Civil Procedure.[10]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.”[11] The Rule further provides that a person or entity subject to a subpoena must be afforded “a reasonable time to comply.”[12]

         Applications for an extension must be made in writing, [13] and courts may extend almost any deadline for “good cause” if a request is made before the time for compliance expires.[14] “A determination of good cause depends on the diligence of the moving party”[15] where “[t]he moving party has the burden of demonstrating that ‘despite its diligence, it could not reasonably have met the scheduling order deadline.'”[16] Further, the absence of prejudice to the nonmovant does not demonstrate good cause.[17]

         It must 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 proceeding.”[18]

         III. DISCUSSION & ANALYSIS

         DialAmerica 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.

         DialAmerica 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.

         First, 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.

         Second, 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.”[19] Mr. Bardwell is a Vice President at DialAmerica.[20] He estimated that it would take DialAmerica a total of 165 man-hours to identify the putative class members.[21]One dedicated employee working 35 hours per week could have completed the entire ...


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