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finding that service was effectuated when made by FedEx and certified mail
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Case No: 5:13-MC-004-WTH-PRL
03-28-2013
SECURITIES AND EXCHANGE COMMISSION, PLAINTIFF, v. REX VENTURE GROUP, LLC, d/b/a ZEEKREWARDS.COM, and PAUL BURKS, DEFENDANT.
ORDER
This cause is before the Court on Rex Venture Group, LLC's Court-Appointed Receiver's Motion to Compel Non-Party Nathaniel Woods' Compliance with Rule 45 Subpoena (Doc. 1), filed on January 25, 2013. Pursuant to Rule 45(c)(2)(B)(i), Fed. R. Civ. P., Rex Venture asks the Court to compel non-party Mr. Nathaniel Woods' compliance with the Receivers' Rule 45 subpoena and require Mr. Woods to produce the documents listed in the subpoena.
I. BACKGROUND
The issues in the instant Motion arise out of an action pending in the United States District Court for the Western District of North Carolina ("N.C. Case"). In the N.C. Case, the Securities and Exchange Commission ("SEC") alleges that Paul Burks used Rex Venture Group, LLC to operate an illegal Ponzi and pyramid scheme, which allegedly took more than $600 million from hundreds of thousands of individuals in dozens of countries. (Doc. 1, ¶ 1). On August 17, 2012, the District Judge in the N.C. Case appointed a Temporary Receiver and gave him the power to "issue subpoenas for documents and testimony consistent with the Federal Rules of Civil Procedure[.]" (Doc. 1, ¶ 2, 4 & Exh. 1, ¶ 7(H)). Subsequently, on October 30, 2012, the Receiver issued to Mr. Woods a Rule 45 subpoena for production of documents (from the Western District of North Carolina) (Doc. 1, ¶ 6). In response, Mr. Woods filed a Motion to Quash the Subpoena (Doc. 1, ¶ 7 & Exh. 2), arguing various procedural and jurisdictional issues; as such, he did not produce any documents. (Doc. 1, ¶ 7).
Securities and Exchange Commission v. Rex Venture Group, LLC d/b/a ZeekRewards.com and Paul Burks, No. 3:12-cv-519 (W.D.N.C. 2012).
Thereafter, on November 27, 2012, the Receiver issued a new subpoena from the United States District Court for the Middle District of Florida, wherein the Receiver narrowed the scope of the requested documents. (Doc. 1, ¶ 8 & Exh. 3). The Receiver served Mr. Woods with the subpoena (issued by this Court) via certified mail and federal express. (Doc. 1, ¶ 10 & Exh. 4). Subsequently, on January 16, 2013, the District Judge in the N.C. Case denied Mr. Woods' Motion to Quash the October 30, 2012 subpoena as moot because the Receiver "re-issued [the subpoena] through different procedures and [the Receiver is now] requiring a different scope of documents to be produced." (Doc. 1, ¶ 11 & Exh. 7).
Further, the record before this Court demonstrates that the Receiver's counsel has contacted Mr. Woods in attempts to obtain the subpoenaed documents without the Court's intervention to no avail. (See e.g., Doc. 1, Exh. 8). Accordingly, the instant Motion to Compel (Doc. 1) was filed in accordance with Rule 45, Fed. R. Civ. P.
Upon initial review of Rex Venture's Motion (Doc. 1), the Court had concerns with whether Mr. Woods was properly served with the subpoena; accordingly, the Court entered an Order to Show (Doc. 3); to which Rex Venture responded. (Doc. 5). In addition, Rex Venture notified the Court that Mr. Woods had filed what appeared to be an objection to Rex Venture's Motion to Compel, but had done so in a different case. (Doc. 2). Based on this Notice, the Court ordered Mr. Woods to notify the Court whether the document titled "Objection to Receiver's Motion to Compel Nathaniel Woods, a Non-Party" was intended to be filed in this action in response to Rex Venture's Motion to Compel. (Doc. 6). In response, Mr. Woods filed a Motion for Clarification (Doc. 7) and his Objection to Receiver's Motion to Compel (Doc. 8). Finally, the Court granted Rex Venture's leave to file a reply, which it has done. (Docs. 10 & 12). This matter is now ripe for review.
In its Notice (Doc. 2), Rex Venture represents that it takes no position as to whether this document should have been filed in this case; rather, Rex Venture submits that it is simply filing the Notice "so as not to prejudice" Mr. Woods, who is acting pro se. (Doc. 2, ¶¶ 5-6).
II. DISCUSSION
Mr. Woods' Motion for Clarification
As an initial matter, Mr. Woods seeks clarification as to where he "should submit pleadings and motions as well as clarification as to the case number which is to be used in the matter." (Doc. 7, at 4). Mr. Woods represents that he was served with a copy of Rex Venture's Motion to Compel (Doc. 1) without a case number, and thus, he did not know where to file his objection. (Doc. 7). As such, Mr. Woods submits that he filed his Objection in the N.C. Case.
This Court has jurisdiction over enforcing the Rule 45 subpoena issued by this Court, which is dated November 27, 2012. See Great American Ins. Co. v. General Contractors & Const. Mgmt., Inc., 2008 WL 4372884, at *1 (S.D. Fla. Sept. 24, 2008) (finding that "The Advisory Committee note to the 1991 Amendment to Fed. R. Civ. P. 45(a)(2) states that the court in whose name the subpoena issued is responsible for its enforcement."). Accordingly, Mr. Woods' Motion for Clarification (Doc. 7) is granted to the extent that this Court has jurisdiction over enforcing the subpoena issued by this Court (dated November 27, 2012), which is attached as Exhibit 3 to Rex Venture's Motion to Compel (Doc. 1). To avoid any confusion, the Court has attached to this Order (as "Exhibit A") the subpoena subject to this Order and the Court's jurisdiction. The case number for this action is indicated on the first page of this Order. Thus, any documents that Mr. Woods would like to file pertaining to the Rule 45 subpoena issued by this Court and dated November 27, 2012 ("Exhibit A"), should be filed in this action.
Service of the Subpoena
Next, the Court must address its concerns (see doc. 3) regarding whether Mr. Woods was properly served with the Rule 45 subpoena issued by this Court. Rex Venture represents that it served Mr. Woods with this subpoena via certified mail and federal express, and argues that this service is proper under Rule 45. See TracFone Wireless, Inc. v. Does, 2011 WL 4711458, at *4 (S.D. Fla. Oct. 4, 2011) (finding that "service of a Rule 45 subpoena need not be effectuated by personal delivery on the person being subpoenaed."); In re Falcon Air Exp., Inc., 2008 WL 2038799, at *4 (Bkrtcy. S.D. Fla. May 8, 2008) (finding that a Rule 45 subpoena does not require personal service, rather service is sufficient where it is "reasonably calculated to insure receipt of the subpoena by the witness."); Codrington v. Anheuser-Busch, Inc., 1999 WL 1043861, at *1-2 (M.D. Fla. Oct. 15, 1999) (finding that "nothing in the plain language of the Rule requires personal service").
It does not appear the Eleventh Circuit has addressed this particular issue and the Court finds these cases persuasive, especially since it is clear that Mr. Woods received the subpoena both by federal express and certified mail. Indeed, Mr. Woods specifically states that he "received [two subpoenas] sequentially on November 28th and 29th, 2012, via FedEx and [c]ertified mail." (Doc. 8, at 2 & 11). Accordingly, the purpose of service - i.e., that Mr. Woods was put on notice - has been effectuated.
Mr. Woods' Compliance with the Subpoena
Rule 45(c)(2)(B), Fed. R. Civ. P., provides (in relevant part) that, in the event the person upon whom a subpoena is served objects, the party serving the subpoena may, at any time, file a motion to compel production. Here, the Receiver has done just that. On November 27, 2012, this Court issued a subpoena (see Doc. 1, Exh. 3), which Mr. Woods acknowledges he received on November 28, 2012 and November 29, 2012 by federal express and certified mail (see Doc. 1, Exh. 6(b) & Doc. 8, at p.11). Mr. Woods then objected to this subpoena. (See Doc. 1, Exh. 6(b) & Doc. 8, at pp.11-14). Notably, the Receiver disclosed Mr. Woods' objection to the Court. (See Doc. 1, at ¶ 12 & Exh. 6). Subsequently, on December 19, 2012, the Receiver's counsel emailed Mr. Woods to discuss any objections that he may have (Doc. 1, Exh. 1), to which Mr. Woods responded (Doc. 1, Exh. 9). The Court will now address Mr. Woods' objections. (Doc. 8).
Mr. Woods contends that the Receiver did not notify the Court of his objections. This is simply not the case. The Receiver specifically states that Mr. Woods filed a "'Request for Judicial Notice' objecting to the [s]ubpoenas that had issued from the Middle District of Florida and again refused to produce any documents." (See Doc. 1, at 12 & Exh. 6). Moreover, the objections attached to the Request for Judicial Notice (Doc. 1, Exh. 6) are identical to the objections that Mr. Woods attached to his Objection to Receiver's Motion to Compel (Doc. 8).
Mr. Woods objects contending that he has received three subpoenas, which are redundant and serve as harassment. The Court disagrees. As a point of clarification, the subpoena issued on October 30, 2012, in the N.C. Case was found moot because the Receiver "re-issued [the subpoena] through different procedures . . . ." (See Doc. 1, ¶ 11 & Exh. 7). The subpoena issued by this Court, which is dated November 27, 2012, and located in the record at Doc. 1, Exh. 3, is the subpoena at issue here. It is clear from the record that this subpoena (Doc. 1, Exh. 3) was merely provided to Mr. Woods both by certified mail and federal express to ensure his receipt of it.
Mr. Woods also argues that he did not receive prior notice of the subpoena as required by Rule 45. Rule 45(b)(1) requires prior notice to each party "[i]f the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial . . . ." Here, Mr. Woods is not a party. Accordingly, Rule 45(b)(1) does not contemplate that he should get prior notice.
Mr. Woods' other arguments include that the Receiver's requests are overly broad, irrelevant, create an undue burden and expense, that the Receiver already has the information, and that some of the information is privileged. (Doc. 8).
At the outset it is important to note that the scope of discovery is broad "in order to provide parties with information essential to the proper litigation of all relevant facts, to eliminate surprise and to promote settlement." Coker v. Duke & Co., Inc., 177 F.R.D. 682, 685 (M.D. Ala. 1998). The Federal Rules of Civil Procedure "strongly favor full discovery whenever possible." Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Federal Rule of Civil Procedure 26(b)(1) allows parties to "obtain discovery regarding any nonpriviledged matter that is relevant to any party's claim or defense." Relevance is "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). A discovery request "should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action." Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980); see also Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984).
Objections to discovery must be "plain enough and specific enough so that the court can understand in what way the [discovery is] alleged to be objectionable." Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (quoting Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). Objections to discovery on the grounds that it is over broad and not relevant are not sufficient, the objecting party should state why the discovery is overly broad or not relevant. Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982).
Mr. Woods' objections to the Receiver's requests 1, 2, and 4-10, are similar, so the Court will address them together. (Doc. 8, at 8-9, 12-14). Specifically, Mr. Woods suggests that these requests are "overly broad" and create an "undue burden" because he does not have any information and that the Receiver already has this information. The Court overrules Mr. Woods' objections. The Receiver's requests all appear to be aimed at ascertaining Mr. Woods' involvement with Rex Venture, which seems to be a relevant issue in the N.C. Case. To the extent that Mr. Woods has information in his possession pertaining to these requests, Mr. Woods must produce such information. To the extent that Mr. Woods does not have information, he must respond to the Receiver's subpoena and notify the Receiver whether he ever had the information, provide a description of the information, and explain what happened to the information.
Mr. Woods objects to the Receiver's request 3 and contends that the Receiver has this information because the Receiver has called and emailed him. (Doc. 8, at 8 & 12). The Court overrules Mr. Woods' objections. Simply because the Receiver has emailed and called Mr. Woods does not mean that the Receiver has the information that it seeks. Mr. Woods must provide the Receiver with information responsive to this request. At this time, however, Mr. Woods is not required to disclose any of his passwords. If the Receiver still seeks Mr. Woods' passwords, the Receiver shall file a supplemental brief with this Court within twenty-one (21) of the date of this Order providing legal authority which would authorize the Court to compel Mr. Woods to disclose his passwords.
Request 3 seeks "[d]ocuments sufficient to show all user names, passwords, email addresses, and accounts used by Mr. Woods in connection with [Rex Venture]. (This request is not meant to include passwords to third party financial accounts used in connection with [Rex Venture]; however, documents sufficient to show the location and account number of such accounts should be included in your response.)" (See Doc. 1, Exh. 3, ¶ 3).
Notably, Mr. Woods also argues that the Receiver's attorney contacted him by email in violation of the Federal Rules. (Doc. 8, at 5). The Court disagrees and finds no apparent violation of the Federal Rules.
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Mr. Woods objects to the Receiver's requests 11-13, contending that these requests are irrelevant. (Doc. 8, at 9 & 14). The Court disagrees and overrules Mr. Woods' objections. The Receiver's requests all appear to be aimed at ascertaining Mr. Woods involvement with Rex Venture, which seems to be a relevant issue in the N.C. Case. Accordingly, Mr. Woods shall produce documents and other information responsive to these requests. Lastly, Mr. Woods contends that the documents responsive to the Receiver's request 12-13 are privileged. (Doc. 8, at 4). Due to the nature of the case, the Court disagrees, overrules Mr. Woods' objection, and requires Mr. Woods to provide the requested information to the Receiver.
Attorney's Fees
Finally, Rex Venture seeks "the Receiver's attorneys' fees incurred in preparing, filing[,] and pursing this Motion be taxed to Mr. Woods . . . ." (Doc. 1, at 5-6). However, Rex Venture is not entitled to such an award. "Although Rule 45(c)(2)(B)(i) authorizes the serving party to 'move the issuing court for an order compelling production or inspection,' there is no provision in Rule 45 for an award of expenses for bringing such a motion." See Bailey Industries, Inc. v. CLJP, Inc., 270 F.R.D. 662, 672 (N.D. Fla. 2010) (citing Fed. R. Civ. P. 45). In addition, although Rule 37(a)(5)(A), authorizes an award of "the movant's reasonable expenses incurred in making [a] motion [to compel], including attorney's fees," courts in this circuit have held that Rule 37(a) "does not appear to govern motions to compel production of documents made pursuant to Rule 45." See id.; see also Kona Springs Water Distrib., Ltd. v. World Triathlon Corp., 2006 WL 905517, at *2 (M.D. Fla. Apr. 7, 2006) (court granted in part and denied in part motion to compel compliance with subpoena under Rule 45 and denied motion for sanctions, finding "to the extent that Defendant seeks sanctions under Rule 37, . . . the rule [is] inapposite") (citations omitted). Accordingly, Rex Venture's request for fees is due to be denied.
III. CONCLUSION
In light of the foregoing, Mr. Woods' Motion for Clarification (Doc. 7) is GRANTED to the extent set forth herein. Rex Venture's Motion to Compel (Doc. 1) is GRANTED IN PART and DENIED IN PART. The Motion is granted to the extent that Mr. Nathaniel Woods is ordered to comply with the subpoena issued by the United States District Court for the Middle District of Florida ("Exhibit A") on or before April 11, 2013, to the extent set forth herein; and, the Motion is denied to the extent that Rex Venture seeks fees. The Clerk is directed to mail a copy of this Order to Mr. Nathaniel Woods at 216 SW 11th Avenue, Ocala, Florida 34471.
IT IS SO ORDERED.
DONE and ORDERED in Ocala, Florida on March 28, 2013.
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PHILIP R. LAMMENS
United States Magistrate Judge
Copies furnished to:
Counsel of Record
Unrepresented Parties
Mr. Nathaniel Woods