Opinion
Misc. Case M8-85.
April 16, 2009
OPINION ORDER
On April 3, 2009, Petitioner, the Kingdom of Morocco ("Morocco"), filed this Miscellaneous Case in the Southern District of New York requesting an Order to Show Cause ("OSC") why non-party Michael A. Aldi ("Aldi") should not be held in contempt, pursuant to Federal Rule of Civil Procedure ("Rule") 45(e), for failure to comply with Morocco's subpoena to produce documents and appear for a deposition.
For the reasons stated below, the Court orders Aldi to comply with Morocco's subpoena to produce documents and appear for a deposition. If Aldi does not comply with Morocco's subpoena by April 27, 2009, Aldi must appear before the Court on April 28, 2009 at 11:00 a.m. to show "adequate excuse" why he should not be held in contempt of court. Fed.R.Civ.P. 45(e). If Aldi does not appear at that time and show adequate excuse for his failure to comply with Morocco's subpoena, the Court will hold Aldi in contempt of court, and order appropriate sanctions.
I. Background
The instant Miscellaneous Case is related to an action pending against Morocco in the United States District Court for the District of Columbia, Dr. Darashan Shah v. The Kingdom of Morocco v. Anne Butler, Anne Butler Realty Group, LLC, Case No. 06-CV-01888 (the "Shah" case). Shah alleges that Morocco failed to fulfill its obligations under a commercial lease agreement executed by the parties. Morocco denies Shah's allegations, asserts various defenses, and has impleaded third parties Anne Butler and Anne Butler Realty Group, LLC.
As part of the Shah litigation, Morocco has made several attempts to obtain documents from and take the deposition of Aldi. Aldi is a non-party who allegedly notarized several important documents relevant to the Shah case, including a Notice of Completion of Tenant Improvements and an Assignment of Lease.
First, Morocco served a document subpoena on Aldi on December 29, 2008, instructing Aldi to produce to Morocco certain documents, on January 5, 2009 at 10:00 a.m., at the offices of Morocco's local co-counsel, Lynch Daskal Emery LLP ("Lynch"), located at 264 West 40th Street, 18th floor, New York, NY 10018. Aldi failed to respond in any way to the subpoena.
In this Order, the Court accepts as true Morocco's factual allegations about the efforts that it has made to serve the subpoenas on Aldi. Aldi has submitted nothing to this Court in response to Morocco's submissions, and the Court accordingly has no basis to discredit Morocco's allegations.
The Court does not reach any conclusions, however, as to whether service of the subpoenas on Aldi sufficiently fulfills the requirements of service under Rule 45. Based on Morocco's allegations, the Court finds that Morocco has made diligent efforts to locate and serve Aldi, and that even though Aldi may have effectively evaded personal service, he appears to be on notice of the subpoenas. Nonetheless, Morocco has not effectively briefed the question of whether their efforts are sufficient under Rule 45. Because the Court only compels discovery in this Order, and does not yet hold Aldi in contempt, the Court need not reach the question of sufficiency of service. If Aldi does not comply with the instant Order, however, Morocco should be prepared at the April 28, 2009 hearing to inform the Court, based on the relevant law, why its methods of service as to each subpoena, the OSC, and this Order are legally sufficient.
Morocco then served a second subpoena on Aldi on January 20, 2009, instructing Aldi to produce relevant documents and give his deposition on January 29, 2009 at 12:00 p.m. at the Lynch offices. Aldi similarly failed to respond in any way to the second subpoena, and he did not appear for the deposition.
On April 3, 2009, Morocco petitioned the Court for an OSC why Aldi should not be held in contempt for failing to comply with Morocco's second subpoena. Judge Sweet, the Part I judge on that date, signed Morocco's proposed OSC, which directed Aldi to appear before the Court on April 14, 2009, at 11:00 a.m. and show cause why he should not be held in contempt. The OSC permitted Aldi to file opposition papers by April 13, 2009. Aldi did not submit opposition papers, and he did not appear on April 14, 2009.
Morocco states that it initiated this Miscellaneous Case as an OSC, rather than a Notice of Motion, because discovery in theShah case ends on April 30, 2009. Morocco alleges that the D.C. District Court may be reluctant to grant another extension of this already twice-extended deadline. Morocco therefore wants Aldi to produce documents and give his deposition before April 30, 2009.
The OSC also required Morocco to serve a copy of the OSC on Aldi, which Morocco used diligent efforts to do.
II. Analysis
The Court must now consider whether, in light of Aldi's failure to appear and provide adequate excuse for his lack of compliance with Morocco's second subpoena, Aldi should be held in contempt of court, pursuant to Rule 45(e).
Rule 45(e) provides that the "issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena." Here, Aldi has failed to obey two subpoenas, both attorney-issued, but which, pursuant to Rule 45(a)(3), carry the weight of a mandate from the Southern District of New York. In addition, despite being given notice and an opportunity to be heard, Aldi has submitted no response to the OSC, and has shown the Court no adequate excuse for his failure to obey Morocco's subpeona. Accordingly, the Court concludes that it has the power to hold Aldi in contempt.
Rule 45(a)(3) provides that an attorney, as an officer of the court, may issue a subpoena on behalf of a court in which the attorney is authorized to practice, or on behalf of a court in a district in which a deposition or a document production is compelled by the subpoena. Valid attorney-issued subpoenas under Rule 45(a)(3) operate as enforceable mandates of the court on whose behalf they are served. See, e.g., Beruashvili v. Hobart Corp., No. CV 2005-1646 (ENV) (MDO), 2006 WL 2289199, *1 (E.D.N.Y. Aug. 8, 2006) (internal citations omitted).
Here, both subpoenas were issued by Haig Kalbian ("Kalbian"), Morocco's primary counsel in the Shah case, on behalf of the Southern District of New York. Morocco alleges that Kalbian is authorized to practice in the District Court for the District of Columbia, the court in which Shah is pending. The subpoenas compelled production of documents and/or deposition in the Southern District New York.
Based on Morocco's allegations, the Court concludes that the two attorney-issued subpoenas are valid, and should carry the weight of a mandate by the Southern District of New York.
Nonetheless, "[a]n order of contempt leading to the imposition of sanctions is a drastic remedy." Sanchez v. Pathmark Stores, Inc., No. 04 Civ. 1159 (GBD) (RLE), 2009 WL 398103 (S.D.N.Y. Feb. 17, 2009) (internal quotations and citations omitted). Furthermore, courts in the Second Circuit have often held that before imposing sanctions under Rule 45(e) for failure to comply with an attorney-issued subpoena, a court should first issue an order compelling compliance with the subpoena. See, e.g., Bender v. Del Valle, No. 05 Civ. 6459 (GEL) (RLE), 2007 WL 1686322, *2 (S.D.N.Y. June 6, 2007).
In the instant case, the Court has ordered Aldi to appear and show cause for his failure to respond to Morocco's second attorney-issued subpoena. The Court has not yet, however, issued an order compelling discovery. The Court therefore concludes that, before holding Aldi in contempt, it should first order Aldi to immediately comply with Morocco's subpoena. Then, if Aldi still refuses to comply, sanctions will be appropriate. In other words, the Court permits Aldi one final opportunity to avoid being held in contempt of court.
III. Conclusion
For the reasons stated above, the Court orders Aldi to comply with Morocco's subpoena to produce documents and appear for a deposition. Aldi must immediately call Morocco's attorneys to arrange for a mutually convenient date for him to appear to produce documents and to give testimony. Aldi must call Morocco's attorneys by Monday, April 20, 2009; and he must produce the requested documents and appear for a deposition on or before Monday, April 27, 2009.
If Aldi complies with the subpoena by April 27, 2009, no order of contempt will be issued. If Aldi continues to defy the subpoena, however, Aldi shall appear before the Court on April 28, 2009 at 11:00 a.m. to show cause why he should not be held in contempt. If Aldi does not appear at that date and time and show adequate excuse for his defiance/failure to comply with the subpoena, he will be held in contempt of court, and subject to sanctions.
Morocco is directed to send a copy of this Order to Aldi by certified, overnight mail, and to make its best efforts to serve a copy of this Order on Aldi by hand, within one calendar day of the date of this Order.
SO ORDERED