Ariel v. Jones

• Decision Date: 16 December 1982
• Docket Number: No. 80-5589,80-5589
• Citation: 693 F.2d 1058
• Parties: Gideon ARIEL and Irving I. Dardik, Plaintiffs, U.S. Olympic Committee, Petitioner-Appellee, v. Arthur JONES, an individual and d/b/a Nautilus Sports/Medical Industries, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1058

693 F.2d 1058

Gideon ARIEL and Irving I. Dardik, Plaintiffs, U.S. Olympic Committee, Petitioner-Appellee, v. Arthur JONES, an individual and d/b/a Nautilus

Sports/Medical Industries, Defendant-Appellant.

No. 80-5589

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Dec. 16, 1982.

Brigham & Brigham, Dana P. Brigham, Miami, Fla., for defendant-appellant.

Ronald T. Rowan, Colorado Springs, Colo., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

PER CURIAM:

Appellant, Arthur Jones, is the defendant/counter-plaintiff in a civil action currently pending in the United States District Court for the Middle District of Florida. In connection with discovery in this action, Jones initiated the present action by causing the clerk for the United States District Court for the Southern District of Florida to issue a subpoena duces tecum to be served on the United States Olympic Committee's agent, C.T. Corporation, in Miami, Florida. The Olympic Committee is not a party to the action pending in the middle district of Florida.

On June 19, 1980, the Olympic Committee filed a motion to quash the subpoena issued by the southern district court. On July 10, 1980 the district judge issued an order granting the Olympic Committee's motion to quash the subpoena. The court found "that it would be burdensome and unfair to require the petitioner, a federally chartered corporation with virtually no contacts with this state, to produce the documents requested and to be deposed in this judicial district over litigation occurring outside this district." This appeal followed.

Before addressing the merits of the parties' contentions, we must determine whether this court can properly exercise jurisdiction over this case. An order quashing a subpoena is not a final judgment in the usual sense. Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir.1961). Consequently a discovery order incident to a pending action is generally not subject to appeal. Honig v. E.I. duPont de Nemours & Co., 404 F.2d 410 (5th Cir.1968). However, "[i]f a court in one district quashes a subpoena or otherwise denies discovery from a person not a party to the action and the action is pending in a different district, the order is a final disposition of the only proceeding in that district concerning the controversy and the party seeking discovery may appeal." 8 C. Wright and A. Miller, Federal Practice and Procedure Sec. 2006 (1970); see National Life Insurance Co. v. Hartford Accident and Indemnity Co., 615 F.2d 595 (3d Cir.1980); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (2d Cir.1967); Gladrow v. Weisz, 354 F.2d 464, 466 (5th Cir.1965); Horizons Titanium Corp., 290 F.2d at 424. In the case at bar, the Olympic Committee is not a party to the central action between Ariel, Dardik, and Jones and that action is pending in another district. The district court's order quashing the subpoena was a final disposition of all issues pending before it and was not merely a step toward final disposition of the merits. See National Life Insurance Co. v. Hartford Accident and Indemnity Co., 615 F.2d 595 (3d Cir.1980). Jones has no other means of effectively obtaining review. Consequently, we hold that this court possesses appellate jurisdiction over the present appeal.

Jones contends that the district judge erred in quashing the subpoena arguing that the Olympic Committee's agent for service of process in Miami effectively possessed control of the documents sought by the subpoena. We disagree. Federal Rule of Civil Procedure 45(b) allows a court to "quash or modify the subpoena if it is unreasonable and oppressive." Courts have held that they will reverse such an order to quash only for abuse of discretion. Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646, 648 (9th Cir.1980); Premium Service Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir.1975).

Such abuses must be unusual and exceptional; we will not merely substitute our judgment for that of the trial judge. A judge abuses his discretion only when his discretion is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based that decision.

Premium Service Corp., 511 F.2d at 229 (citations and footnote omitted).

In the case at bar, the district judge did not abuse his discretion in quashing the subpoena. The Olympic Committee is required by law to maintain an agent for service of process in every state. 36 U.S.C. Sec. 381 (Supp. IV 1980). This requirement does not impose an obligation on the Olympic Committee to produce documents in any state upon service of subpoena. In Cates v. LTV Aerospace Corp., 480 F.2d 620 (5th Cir.1973), the court held that discovery rules cannot be used to require a non-party to produce documents in the custody of the head of the organization located in another judicial district. Consequently, the mere presence in the southern district of Florida of an agent for the service of process does not require the district court to enforce the subpoena in that district.

Federal Rule of Civil Procedure 45 governs the territorial limitations regarding where depositions are to be taken or where documents are to be produced. ¹ In view of these limitations, "[i]t often happens that in an action in one district, discovery is sought from a witness resident in another and outside the reach of process of the court of the former, making it necessary to have recourse to the district court...