United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the Court are: (1) Ford's motion to quash plaintiffs'
subpoena directing Matthew Fyie to appear and testify at
trial; (2) plaintiffs' motion for leave to
designate deposition testimony of Matthew Fyie; and (3)
Ford's motion to strike plaintiffs' untimely
objections to Ford's counterdesignations of Victor
Michel's deposition testimony. The Court resolves the
motions as follows.
case arises out of Victor Michel's asbestos exposure
during his work as a mechanic and generator service
technician. Michel contracted peritoneal mesothelioma
after a career that included performing work as a mechanic on
engines and brakes. He filed this action in state court on
July 28, 2017 against Ford Motor Company and many other
asbestos suppliers, claiming negligence and that
defendants' products were unreasonably
dangerous. Defendants removed the case to federal
court on May 8, 2018.On June 12, 2018, Michel
died. The Court substituted his survivors as
plaintiffs on July 10, 2018. As of January 25, 2019, the only
defendant remaining in the case is Ford.
anticipation of trial, which was scheduled for February 19,
2019, the parties issued subpoenas and designated deposition
testimony. On February 13, 2019, the Court continued trial to
allow plaintiffs to amend their complaint. Before trial
was continued, Ford sought to have plaintiffs' subpoena
to Matthew Fyie quashed because Mr. Fyie is beyond the
Court's subpoena power, and because plaintiffs did not
abide by the requirements of Federal Rule of Civil Procedure
45. Plaintiffs opposed the motion,
and they also sought to designate deposition testimony of Mr.
Fyie. Ford opposed the motion to designate Mr.
Fyie's deposition testimony. Ford also sought to
strike plaintiffs' objections to its counterdesignations
to Mr. Michel's deposition testimony because they were
not timely filed.
Motion to Quash Subpoena Issued to Matthew Fyie
argues that plaintiffs cannot subpoena Matthew Fyie to
testify at trial because he is outside of the Court's
subpoena power. A party may subpoena a witness to attend
and testify at trial only within one hundred miles of where
the person resides, is employed, or regularly conducts
business in person. Fed.R.Civ.P. 45(c)(1)(A). A court must
quash or modify a subpoena that does not adhere to these
geographical limits. Fed.R.Civ.P. 45(d)(3)(A)(ii).
Fyie resides in Michigan,  which is more than one hundred
miles from the location of trial. The Advisory Committee
Notes to the 2013 amendments to Rule 45 provide, “Rule
45(c)(1)(A) does not authorize a subpoena for trial to
require a party or party officer to travel more than 100
miles unless the party or party officer resides, is employed,
or regularly transacts business in person in the
state.” There is no evidence that Mr. Fyie resides, is
employed, or regularly conducts business in person in
Louisiana. Fyie is clearly beyond the reach of the
Court's subpoena power under Rule 45(c). See Fradella
v. Coca-Cola Co., No. 17-9622, 2018 WL 3455707, at *2-*3
(E.D. La. Jul. 18, 2018) (quashing subpoena for the testimony
of corporate representative when the subpoenaed business was
headquartered more than one hundred miles from the place of
trial); see also Johnson v. Big Lots Stores, Inc.,
251 F.R.D. 213, 222 (E.D. La. 2008) (quashing subpoenas for
witnesses who resided more than one hundred miles from the
place of trial).
argues that because Mr. Fyie was listed as “c/o Janika
D. Polk, Kuchler Polk Weiner, LLC” on Ford's
witness list, he therefore may be served under Rule 45(c)
because the offices of Kuchler Polk Weiner are in New
Orleans. But where a person's attorney is
located has no bearing on the Court's subpoena power. Mr.
Fyie does not reside at Kuchler Polk Weiner, nor does he work
at, or regularly conduct business at the law firm's
office. Indeed, plaintiffs deposed Mr. Fyie in Michigan only
four months ago.Plaintiffs' argument has no merit and
displays a disturbing unfamiliarity with the Federal Rules of
Civil Procedure. Accordingly, the Court grants Ford's
motion to quash the trial subpoena.
Motion for Leave to Designate Deposition Testimony of Matthew
seek to designate deposition testimony of Matthew
Fyie.Ford opposes this motion because
plaintiffs did not file these designations before their
deadline under the Court's pretrial preparations and
Federal Rule of Civil Procedure 16(b)(4), a court may modify
the deadlines in its scheduling order “for good
cause.” Fed.R.Civ.P. 16(b)(4). In deciding whether to
amend the scheduling order to allow a late filing, the
Court's “judgment range is exceedingly wide,
” for it “must consider not only the facts of the
particular case but also all of the demands on counsel's
time and the court's.” Streber v. Hunter,
221 F.3d 701, 736 (5th Cir. 2000) (quoting HC Gun &
Knife Shows, Inc. v. City of Houston, 201 F.3d 544,
549-50 (5th Cir. 2000)). To determine whether good cause
exists for the Court to modify the scheduling order, the
Court evaluates the following factors: “(1) the
explanation for the failure to [designate the deposition
testimony]; (2) the importance of the testimony; (3)
potential prejudice in allowing the testimony; and (4) the
availability of a continuance to cure such prejudice.”
Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir.
plaintiffs did not designate deposition testimony for Mr.
Fyie because they erroneously assumed that they could
subpoena him to testify live. There is no evidence of bad
faith or dilatory motive. The testimony is important to
plaintiffs' case because plaintiffs seek to use Mr.
Fyie's testimony to establish that Ford products
contained asbestos. Finally, there is little prejudice to
Ford, because the Court has continued trial. All factors
therefore weigh in favor of modifying the scheduling order to
allow plaintiffs to submit their designations. Accordingly,
plaintiffs' motion is granted. Plaintiffs shall submit
their designations within 30 days of the entry of this order.
Motion to Strike Plaintiffs Late Objections to Ford's
Counterdesignations of Victor ...