United States District Court, Western District of North Carolina, Statesville Division
ANGELA SHOEMAKE, Individually, and as Natural Parent and Guardian of Minor Child, J.S., Plaintiff,
ELI LILLY AND COMPANY, Defendant.
David C. Keesler, United States Magistrate Judge.
THIS MATTER IS BEFORE THE COURT on “Plaintiff’s Motion To Rule On 3rd Party Motion To Quash Subpoena And Motion For Protective Order” (Document No. 50). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered the motion, the record, and applicable authority, the undersigned will deny the motion.
Angela Shoemake (“Shoemake” or “Plaintiff”), individually, and as parent and guardian of minor child, J.S., filed this action on January 23, 2013. (Document No. 1). Plaintiff contends that J.S. developed a cardiac anomaly as a result of Shoemake’s ingestion of Defendant Eli Lilly and Company’s (“Defendant”) prescription anti-depressant Prozac during her pregnancy with J.S. See (Document Nos. 1, 10, 34). Plaintiff’s “Amended Complaint At Law” (Document No. 10) was filed on February 14, 2013, and asserts fourteen (14) causes of action against Defendant based on injuries allegedly suffered by Plaintiff and J.S. as a result of Shoemake’s ingestion of Prozac. The “Answer Of Defendant Eli Lilly And Company To Plaintiff’s Amended Complaint” (Document No. 13) was filed on March 18, 2013.
On May 7, 2013, the Court entered a “Pretrial Order And Case Management Plan” (Document No. 24). The “…Case Management Plan” was most recently amended on August 21, 2014, setting the following deadlines: discovery completion – January 16, 2015; ADR report – January 27, 2015; motions – February 6, 2015; and trial – May 4, 2015. (Document No. 47).
“Plaintiff’s Motion To Rule On 3rd Party Motion To Quash Subpoena And Motion For Protective Order” (Document No. 50) was filed on November 7, 2014. Apparently, Plaintiff is seeking a ruling by this Court on “Patrizia Cavazzoni’s Notice Of Motion To Quash Subpoena And Motion For Protective Order” (Document No. 50-3) and “Patrizia Cavazzoni’s Memorandum Of Law In Support…” (Document No. 50-4), filed in the United States District Court for the Southern District Of New York, on June 26, 2014. “Plaintiff’s Motion To Rule…” fails to indicate that the requirement of consultation was satisfied pursuant to Local Rule 7.1 (B).
“Patrizia Cavazzoni’s Opposition To Plaintiff’s Motion…” (Document No. 51) was filed on November 21, 2014. Non-party Patrizia Cavazzoni, M.D. (“Cavazzoni”) asserts that “Plaintiff’s Motion…” (Document No. 50) is not properly before this Court under Fed.R.Civ.P. 45. “Plaintiff’s Reply…” was filed on November 28, 2014, and suggests that this matter was properly transferred pursuant to Fed.R.Civ.P. 45(f).
The pending motion was referred to the undersigned on January 6, 2015, and is fully briefed and ripe for review and disposition.
There is no dispute that Plaintiff served an amended subpoena on Cavazzoni on or about June 20, 2014, commanding her to appear for a deposition on June 27, 2014, in the Southern District of New York. See (Document No. 50, Document No. 51, p.2, and Document No. 50-6).
Moreover, there is no dispute that Cavazzoni properly moved to quash the subpoena and for a protective order in the Southern District of New York pursuant to Fed.R.Civ.P. 45. See Document Nos. 50-3 and 50-4). Rule 45 specifically provides that “[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena….” Fed.R.Civ.P. 45(d)(3)(A).
Following briefing for and against “Patrizia Cavazzoni’s Notice Of Motion To Quash Subpoena And Motion For Protective Order” (Document No. 50-3), and after a hearing date of July 29, 2014 was set to consider the motion, the Honorable George B. Daniels issued an Order on July 26, 2014 that stated in full:
The Part I hearing scheduled for July 29, 2014 regarding non-party Dr. Patricia Cavazzoni’s Motion to Quash Subpoena and Motion for Protective Order is cancelled. Dr. Cavazzoni need not comply with the subpoena unless the presiding judge in the underlying action pending in the United States District Court of ...