PETROLEUM MARKETING GROUP, INC. v. UNIVERSAL PROPERTY SERVICES, INC., et al Civil Action No. 22-2410 (GC) (RLS) United States District Court, D. New Jersey Filed March 30, 2023 Counsel Frederick Santarelli, Roger J. Harrington, Elliott Greenleaf & Siedzikowski, Blue Bell, PA, for Plaintiff. Universal Property Services, Inc., Pro se. Jordan M. Rand, Klehr Harrison Harvey Branzburg, Philadelphia, PA, for Defendant. Singh, Rukhsanah L., United States Magistrate Judge LETTER ORDER *1 Dear Counsel, Currently pending before the Court is a Motion by Plaintiff Petroleum Marketing Group, Inc. (“Plaintiff”), seeking to compel compliance by non-party Syed Kazmi with a subpoena duces tecum served pursuant to Rule 45 of the Federal Rules of Civil Procedure (the “Motion”). (Dkt. No. 75). Plaintiff certified that it served its Motion on Syed Kazmi, (See Dkt. No. 75 at p. 9)[1]. No response or opposition to the Motion has been filed. Considering the Motion without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Civil Rule 78.1(b), and for the reasons set forth herein, Plaintiff's Motion is hereby DENIED WITHOUT PREJUDICE. I. BACKGROUND By way of background, this action arises from allegations that, on or about February 2021 through August 2021, Defendants Universal Property Services, Inc. (“Universal”), Shamikh Kazmi (“Kazmi”), MR3 Logistics, LLC (“MR3”), and Orbit Freight Lines, LLC (“Orbit”) (collectively, “Defendants”) engaged in a scheme to unlawfully take and transport thousands of gallons of Plaintiff's gasoline product without permission or payment, thereby leading to Plaintiff's claims of conversion (against all Defendants), breach of an implied agreement (against Universal and Kazmi), breach of the implied duty of good faith and fair dealing (against Universal and Kazmi), unjust enrichment (against Universal and Kazmi), promissory estoppel (against Universal and Kazmi), and conspiracy (against all Defendants). (See generally Dkt. No, 1). On February 18, 2022, Universal asserted a counterclaim against Plaintiff for breach of contract, specifically, the Unbranded Sales Agreement entered into between Plaintiff and Universal. (See Dkt. No. 32 at p. 11, ¶ 8, p. 13, ¶¶ 31-33). According to Plaintiff, Syed Kazmi is the Chief Executive Officer (“CEO”) of Universal and signed the Unbranded Sales Agreement at issue in the Counterclaim. (See Dkt. No. 75 at p. 6). Following unsuccessful attempts to personally serve a subpoena on Syed Kazmi, this Court granted Plaintiff's request to serve the subpoena on Syed Kazmi by way alternative service via certified mail, return receipt requested. (Dkt. No. 66). On or about November 8, 2022, Plaintiff served Syed Kazmi with the subpoena through certified mail, return receipt requested. (Dkt. No. 75 at pp. 11, 21). Through the subpoena served on Syed Kazmi, Plaintiff seeks documents within Syed Kazmi's possession that relate to various topics involving Plaintiff, the Unbranded Sales Agreement, Universal's relationships with co-defendants, and other subject matter Plaintiff claims are relevant to the instant dispute. (See Dkt. No. 75 at pp. 16-19). The Court notes, however, that the subpoena served on Syed Kazmi set a date of September 30, 2022 for compliance with the subpoena. (Dkt. No. 75 at p. 14). Syed Kazmi has not responded in any way to the subpoena. (See Dkt. No. 75 at p. 6). II. LEGAL STANDARD *2 Pursuant to Rule 45 of the Federal Rules of Civil Procedure, a non-party may be compelled by subpoena to produce documents or permit an inspection of records. See Fed, R. Civ. P. 45(d), (e); Fed. R. Civ. P. 34(c). A party serving a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena[,]” which is enforceable by a district court. Fed. R. Civ. P. 45(d)(1). The non-party receiving the subpoena may serve objections to the subpoena, provided such objections are served “before the earlier of the time specified for compliance or 14 days after the subpoena is served,” Fed. R. Civ. P. 45(d)(2)(B). A court may deem the failure to timely serve objections to a subpoena as a waiver of any such objections. See McCabe v. Ernst & Young, LLP, 221 F.R.D. 423, 426 (D.N.J. 2004); see also in re Sevier, No. 22-mc-80, 2022 WL 3923679, at *2 (D. Del. Aug. 31, 2022) (recognizing that a party waives objections by failing to timely assert them under Rule 45, unless the non-party shows good cause or unusual circumstances). A party may move to compel discovery sought through a subpoena on a non-party and such motion “must be made in the court where the discovery is or will be taken.” Fed. R. Civ. P. 37(a)(2). On such a motion, the movant must show that the sought-after discovery from the non-party is relevant and, if it does, then “the resisting non-party must explain why discovery should not be permitted.” Biotechnology Value Fund, LP. v. Cetera Corp., Civ. No. 14-4046, 2014 WL 4272732, at *1 (D.N.J. Aug, 28, 2014) (citations and internal quotation marks omitted). In certain instances, the Court has authority to modify a subpoena and “must quash or modify a subpoena that ... requires disclosure of privileged or other protected matter if no exception or wavier applies; or ... subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3); see also Simulovich v. 1161 Rt. 9 LLC, Civ. No. 07-597, 2007 WL 2362598, at *2 (D.N.J. Aug. 15, 2007). Ultimately, a district court “has broad discretion regarding the enforcement of subpoenas.” Tattle Tale Portable Alarm Sys., Inc. v. Calfee, Halter & Griswold, LLP, Civ. No. 11-7013, 2012 WL 1191214, at *3 (D.N.J. Apr. 10, 2012) (citation omitted); see also Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999); Forrest v. Corzine, 757 F. Supp. 2d 473, 477 (D.N.J. 2010) (“Magistrate Judges are given wide discretion to manage cases and to limit discovery in appropriate circumstances.”). III. DISCUSSION Here, Plaintiff argues that Syed Kazan waived any objections to the subpoena and, therefore, the Court should compel him to respond to the subpoena. In so arguing, Plaintiff contends that Syed Kazmi failed to timely object to the subpoena. While the cover letter enclosing the subpoena stated that Syed Kazmi must “produce responsive documents within 14 days of receiving this Subpoena[,]” the subpoena itself identified September 30, 2022 as the date of compliance. (Dkt. No. 75 at p. 13). Pursuant to Rule 45(d)(2)(B), Syed Kazmi had until the earlier of “the time specified for compliance” in the subpoena, which was September 30, 2022, or fourteen (14) days after service, which was November 22, 2022. As a result, Plaintiff's date of compliance coupled with the cover letter and date of service renders the deadline for compliance confusing at best. Accepting Plaintiff's proposition in its Motion would result in forcing a non-party to serve objections before he is even served with the subpoena; that cannot be the case. It is well settled that the Court affords non-parties greater protection from discovery than a party. See also Burgess v. Galloway, Civ. No. 20-6744, 2021 WL 2661290, at *3 (D.N.J. Jan. 28, 2021) (citing Chazanow v. Sussex Bank, Civ. No. 11-1094, 2014 WL 2965697, at *2 (D.N.J. July 1, 2014)). Considering such, the Court cannot find that Syed Kazmi waived his objections in this instance in light of the likely confusion caused by the subpoena with a date of compliance well before the date of service. See Fed. R. Civ. P. 45(d)(3)(A) (requiring, on timely motion, the Court to quash or modify a subpoena that “fails to allow a reasonable time to comply”). *3 It is likely that the date of compliance in the subpoena served on Syed Kazmi resulted from an inadvertent error whereby Plaintiff sought to serve the originally noticed subpoena. However, whether inadvertent or not, the Court cannot punish a non-party for failing to timely serve objections where such deadline was confusing and a finding of waiver could lead to an inequitable result. Accordingly, in light of the unreasonable date of compliance in the subpoena, the Court declines to find that Syed Kazmi waived any objections to the subpoena at this time. See, e.g., in re Keebaugh, No. 19-163, 2019 WL 5802703, at *2 (E.D. Penn. Nov. 6, 2019) (recognizing that the compliance period must be “reasonable”); see also in re Sevier, 2022 WL 3923679, at *2. The Court also notes that the subpoena directed to Syed Kazmi seeks a number of broad categories of documents that relate to Defendants and Defendants’ business arrangements, including, for example, their tax information and business plans. (See Dkt. No. 75 at pp. 18-19). While the Court need not address here the relevancy, breadth, or burden of such requests, the Court notes that “[i]f documents are available from a party, it has been thought preferable to have them obtained pursuant to Rule 34 rather than subpoenaing them from a nonparty witness,” 8A Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 2204 at 365 (2d ed. 1994); see also in re Keebaugh, 2019 WL 5802703, at *5 (recognizing that the documents sought in the challenged subpoena could be sought through party discovery). Plaintiff has not indicated whether such documents have been requested through party discovery in the first instance before seeking broad third-party discovery. Accordingly, Plaintiff has not met its burden to show that an order to compel is warranted at this time. IV. CONCLUSION Accordingly, for the reasons set forth above, IT IS on this 30th day of March 2023, hereby ORDERED that Plaintiff's Motion to Compel (Dkt. No. 75) is hereby DENIED WITHOUT PREJUDICE; and it is further ORDERED that the Clerk of Court shall hereby TERMINATE the Motion pending at Docket Entry No. 75. SO ORDERED. Footnotes [1] All citations to page numbers herein refer to those automatically generated by the electronically filing system (PACER).