Opinion
File No. 1:01-MC26
April 24, 2001
MEMORANDUM OPINION AND ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER MODIFYING SUBPOENA
This matter is before the Court on Plaintiffs' appeal from Magistrate Judge Joseph G. Scoville's April 9, 2001, order modifying subpoena.
A magistrate judge's resolution of a nondispositive pretrial matter should be modified or set aside on appeal only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); W. D. Mich. LCIVR 72.3(b). The "clearly erroneous" standard applies only to the Magistrate Judge's findings of fact. The Magistrate Judge's legal conclusions are reviewed under the "contrary to law" standard. Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D.Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir. 1994). "A finding is clearly erroneous where it is against the clear weight of the evidence or where the court is of the definite and firm conviction that a mistake has been made." Gaibraith v. Northern Telecom, Inc., 944 F.2d 275, 281 (6th Cir. 1991), cert. denied, 503 U.S. 945 (1992).
Plaintiffs object to the order modifying the subpoena on the basis that a United States District Court Judge for the Norther District of Ohio previously authorized them to issue subpoenas to third parties for discovery in aid of execution on a judgment. That district court order was explicitly addressed in the Magistrate Judge's Memorandum Opinion. As the Magistrate Judge explained, the order entered by Judge Manos of the Northern District of Ohio merely permitted Plaintiffs to pursue discovery. It did not address the territorial provisions of Rule 45(c). Accordingly, the Magistrate Judge's order does not thwart or undermine Judge Manos' order.
The subpoena, which was issued by the United States District Court for the Western District of Michigan, purports to require Josette Nelson, a resident of Kentwood, Michigan, to appear for a deposition in Cleveland, Ohio. The Federal Rules of Civil Procedure provide that "the court by which a subpoena was issued shall quash or modify the subpoena if it (ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides." FED. R. CIV. P. 45(c)(3)(A)(ii) (emphasis added). Plaintiffs have not even attempted to show that the Magistrate Judge's interpretation of the requirements of Rule 45(c) was erroneous. Upon review this Court concludes that the Magistrate Judge's modification of the subpoena to change the location of the deposition and his imposition of sanctions is not contrary to law. Accordingly,
IT IS HEREBY ORDERED that the Magistrate Judge's April 9, 2001, Order Modifying Subpoena is AFFIRMED.