United States District Court, D. North Dakota
In re Joe R. Whatley, Jr., solely in his capacity as the WD Trustee of the WD Trust, Plaintiff,
Canadian Pacific Railway Limited, et al., Defendants.
ORDER DENYING MOTION TO COMPEL
R. Hochhalter United States Magistrate Judge
the Court is a motion by Defendants to compel discovery.
(Doc. No. 135). In the underlying case, Plaintiff's
claims were acquired by assignment from two entities,
identified here for clarity's sake as “World
Fuels” and “Irving.” World Fuels is an
American corporation, while Irving is based in Canada.
Plaintiff seeks recovery from Defendants under the Carmack
Amendment for claims surrounding a 2013 train derailment.
litigation has a lengthy procedural history involving several
stays of discovery. Underlying the instant dispute,
Defendants served four sets of discovery requests on
Plaintiff in June 2019: document requests and interrogatories
related to World Fuels, and document requests and
interrogatories related to Irving.
in these four categories have been minimal. In response to
Defendants' document requests regarding World Fuels,
Plaintiff served a subpoena on World Fuels in July which
included Defendants' requests. See Doc. No.
139-9. But according to Defendants, the responses received
under the subpoena by the time of the instant motion were
only responsive to two of their document requests, out of a
total of 27. Additionally, it appears Plaintiff did not
request a formal response from World Fuels to the subpoena
until October. See Doc. Nos. 134-11, 139-14.
Regarding the Irving document requests, Plaintiff has
provided at least some documents that were produced in a
separate litigation, although Defendants contend that these
are totally unresponsive to their requests in the instant
does not appear to have been any progress on Defendants'
interrogatories, though Plaintiff has repeatedly offered to
respond to them himself, based on documents from Irving and
crux of the legal issue before the Court is whether
Plaintiff, as assignee, has the same obligations regarding
discovery that World Fuel and Irving would have had were they
bringing their claims directly.
answer in the affirmative, citing numerous district court
decisions to bolster their position. Chief among these is the
2005 case of JP Morgan Chase Bank v. Winnick, 228
F.R.D. 505, 507 (S.D.N.Y. 2005). In Winnick, the
Court confronted the “unusual issue” of a
plaintiff's discovery obligations when a plaintiff is an
assignee. 228 F.R.D. at 506. The court ultimately concluded
that it would be unfair to allow the plaintiff to escape the
obligations of discovery due to his assignee status and
ordered plaintiff to respond to defendants' discovery
requests. Id. at 507-8. Defendants request the Court
do the same here.
counters that the plain text of Fed.R.Civ.P. 34 controls the
issue. Rule 34(a) provides that “a party may serve on
any other party” requests for documents “in the
responding party's possession, custody, or
control.” Documents from Irving and World Fuels,
Plaintiff contends, are outside Plaintiff's control and
thus outside Plaintiff's discovery obligation under the
Federal Rules. A single recent case, MAO-MSO Recovery II,
LLC v. Mercury Gen. Corp., uses similar reasoning. The
MAO-MSO court cites the plain language of Rule 34
and Ninth Circuit law, reasoning that despite considerations
of fairness, a Plaintiff-assignee has no obligation to
provide discovery from its assignor. 2019 WL 2619637, at *3
(C.D. Cal. May 10, 2019). There is no Eighth Circuit case law
the state of the law, the Court concludes the Plaintiff has
the better argument. While sympathetic to the concerns of
fairness cited by Defendant, the language of Rule 34
regarding “possession, custody, or control” is
clear. Other district courts have read “possession,
custody, or control” to encompass documents which a
party has the legal right to obtain on demand, see.,
e.g., Roark v. Credit One Bank, N.A., 2016 WL 11606777,
at *3 (D. Minn. Dec. 2, 2016), citing In re Hallmark
Capital Corp., 534 F.Supp.2d 981, 982 (D. Minn. 2008).
But even this reading does not benefit Defendants; if
Plaintiff had the right to obtain these documents on demand,
through the assignment agreement or otherwise, it would not
have earlier applied to this Court for letters rogatory
and/or a subpoena to obtain them. Especially without any
guidance from the Eighth Circuit encouraging such a course,
this Court is unwilling to subvert what appears to be the
plain meaning of the Federal Rules. Furthermore, the end
result of such an expansion of Rule 34 is unclear. If the
Court does demand explicitly that Whatley obtain these
documents without the obvious legal right to do so, how far
must Whatley pursue this directive? If Whatley attempts to
enforce his subpoena and World Fuels objects, how vigorously
must Whatley litigate the issue?
these reasons, the Court urges that Defendants themselves
pursue available third-party discovery mechanisms. For
instance, Defendants are free to take advantage of Rule 45,
which permits a subpoena to be issued compelling a non-party
to produce evidence without a deposition, and subjects a
non-party witness to “the same scope of discovery as .
. . a party to whom a request for documents and other
materials is addressed pursuant to Rule 34.” Wright,
Miller and Marcus, Fed. Prac. & Proc. Civ.,
§ 2452 Relation of Rule 45 to the Discovery Rules, 9A
(3d ed. 2010). Likewise, nothing prevents Defendants from
moving for the issuance of letters rogatory.
such, the Court DENIES the motion to compel
(Doc. No. 135) and DENIES the motion for
sanctions. The Court is mindful of fairness concerns and the
considerable delay experienced. As such, the Court
ORDERS the following:
1. As soon as possible, counsel for Plaintiff must provide
counsel for Defendants with all available responsive
information, including the amount that each Assignor was paid
and/or reimbursed by insurance providers, as well as the
identities of all providers. (See Doc. No. 139-11).
If this information is insufficient for their purposes,