Middleton Jr v. Bank of America NA

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5

6 ERVIN MIDDLETON JR., et al., Case No.: 2:20-cv-00426-KJD-DJA 7 Plaintiffs, ORDER 8 v.

9 BANK OF AMERICA, NA, et al., 10 Defendants. 11 Pending before the Court is Defendant HOA Collection, LLC’s Motion to Quash Subpoena 12 (ECF No. 82), filed on August 28, 2020. Plaintiffs filed a Response (ECF No. 84) on September 13 9, 2020. Defendant filed a Reply (ECF No. 85) on September 14, 2020. The Court finds this 14 matter properly resolved without a hearing. See Local Rule 78-1. 15 Defendant seeks to quash the subpoena issued on June 17, 2020 (ECF No. 68) directing it 16 to produce evidence of assets by midnight on July 8, 2020. It argues that there was never a default 17 judgment entered against it and the subpoena masquerading as a judgment debtor examination is 18 improper. Plaintiffs’ response is largely inarticulate, but they appear to believe they needed the 19 financial documents of the HOA for their default judgment. Defendant replies that service was 20 improper and there is no basis for the subpoena to have been issued so the subpoena should be 21 quashed. 22 Federal Rule of Civil Procedure 26(b)(1) provides for broad and liberal discovery. 23 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 24 claim or defense and proportional to the needs of the case.” Id. The court may limit discovery if 25 it is unreasonably cumulative or duplicative, or can be obtained from some other source that is 26 more convenient, less burdensome, or less expensive . . . [or] the proposed discovery is outside 27 the scope permitted by Rule 26(b)(1). Rule 26(b)(2)(C)(i-iii). Further, a court may limit 28 discovery via Rule 26(c), which permits the court to issue a protective order to protect a party or 1 person from annoyance, embarrassment, oppression, or undue burden or expense when the party 2 establishes good cause. When the discovery at issue is a subpoena on a nonparty, Rule 45 3 governs. “It is well established that the scope of discovery under a subpoena issued pursuant to 4 Rule 45 is the same as the scope of discovery allowed under Rule 26(b)(1).” Painters Joint 5 Committee v. Employee Painters Trust Health & Welfare Fund, 2011 WL 4573349 at *5 (D. 6 Nev. Sept. 29, 2011). 7 As the subpoena was issued to Defendant, a party, Rule 45 is not the appropriate rule to 8 apply to quash it. Instead, the Court will analyze Defendant’s request as one for a protective order 9 under Rule 26(c). Given the procedural posture of the case, a subpoena issued to obtain financial 10 records in order to effectuate a judgment is not appropriate as no judgment debtor examination is 11 necessary and Defendant has moved to set aside the default, which is pending before the District 12 Judge. Plaintiffs may proceed through discovery with Rules 30, 33, or 34 in order to obtain 13 discoverable information or documents via written discovery or subpoena from Defendant. 14 Therefore, the Court will grant Defendant’s request by issuing a protective order so that they do 15 not have to respond to the existing subpoena (ECF No. 68). 16 IT IS HEREBY ORDERED that Defendant HOA Collection, LLC’s Motion to Quash 17 Subpoena (ECF No. 82) is granted as a protective order is issued for subpoena (ECF No. 68). 18 19 Dated: September 15, 2020. 20 ______________________________ Daniel J. Albregts 21 United States Magistrate Judge 22 23 24 25 26 27 28