MACSOUTH FOREST PRODUCTS, LLC, Plaintiff, v. CURRENT BUILDERS, INC., et al., Defendants CASE NO. 0:24-CV-60013-BECERRA/AUGUSTIN-BIRCH United States District Court, S.D. Florida Entered on FLSD Docket September 06, 2024 Augustin-Birch, Panayotta, United States Magistrate Judge ORDER DENYING DEFENDANTS’ AMENDED MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER DIRECTED TO PLAINTIFF'S SUBPOENAS TO NON-PARTIES *1 This cause comes before the Court on the Current Builder Defendants’ (all Defendants except for Defendant Travelers Casualty and Surety Company of America) Amended Motion to Quash and Motion for Protective Order Directed to Plaintiff's Subpoenas to Non-Parties. DE 173. Plaintiff MacSouth Forest Products, LLC filed a response, DE 175, and the Current Builder Defendants filed a reply. DE 176. This Court ordered the Current Builder Defendants to file under seal the list of documents that the non-party subpoenas seek for the Court's review, DE 177, and the Current Builder Defendants complied with this Court's Order. This Court also set a Discovery Hearing for the Current Builder Defendants’ Motion; however, the Court finds the parties’ briefing sufficient to issue a ruling. Having carefully considered the briefing and the record and being otherwise fully advised, the Court DENIES the Current Builder Defendants’ Motion [DE 173] and CANCELS the Discovery Hearing set for September 9, 2024, at 9:30 A.M. I. Background Plaintiff served non-party subpoenas on two of the Current Builder Defendants’ financial institutions: Synovus Bank and American Global of Florida, LLC. DE 173-1 (Synovus subpoena); DE 173-2 (American Global subpoena). In response, the Current Builder Defendants filed the present Motion, arguing that the non-party subpoenas seek irrelevant and disproportional information. DE 173. Specifically, the Current Builder Defendants raise three arguments: (1) this Court previously set January 1, 2022, as the earliest date for discovery of the Current Builder Defendants’ financial information, (2) the non-party subpoenas concern Current Builder entities that are not named defendants in this case, and (3) Plaintiff fails to explain why the non-party subpoenas are necessary and what new information it would discover from the non-party subpoenas. Id. at 2; DE 176 at 1–2. II. Analysis Beginning with the Current Builder Defendants’ first argument, this Court never set an earliest relevant date for the discovery of the Current Builder Defendants’ financial information. What the Current Builder Defendants are referring to in making their argument is one of this Court's prior Orders. In that Order, the Court noted that, for one of its discovery requests, Plaintiff sought documents from the Current Builder Defendants for the past 10 years. DE 111 at 12. However, Plaintiff later acknowledged that 10 years was too broad a time period and agreed to narrow the time period for that discovery request to January 1, 2022, to the present. Id. This Court accepted that narrowed time period, concluding “[t]he Court finds this time period to encompass the relevant time period for this case.” Id. As such, the Court never ruled that Plaintiff could not seek discovery of the Current Builder Defendants’ financial information prior to January 1, 2022. Moreover, as the Current Builder Defendants acknowledge, the Synovus non-party subpoena seeks documents dating back to May 7, 2021, roughly eight months before January 1, 2022. DE 173 at 2. But the Current Builder Defendants have not explained to the Court how May 7, 2021, is too remote in time to be relevant to this case. Thus, the Court does not find that the non-party subpoenas seek irrelevant information based on the time frame for the requested documents. *2 Moving on to the Current Builder Defendants’ second argument, the Court does not find the non-party subpoenas to seek irrelevant information based on the fact that the documents they seek potentially concern Current Builder entities that are not parties to this litigation. As the Current Builder Defendants state in their reply, the Synovus subpoena seeks documents about a loan agreement that involved the Current Builder Defendants and other Current Builder entities that are not parties to this litigation. DE 176 at 1. But Plaintiff contends that the discovery it has received thus far revealed that the Current Builder Defendants, together with the non-party Current Builder entities, took out a loan and subsequently defaulted on that loan on June 30, 2023. DE 175 at 1–2. Therefore, the Court finds that the Synovus subpoena seeks information that is relevant to Plaintiff's insolvency allegations against the Current Builder Defendants, which involve a similar time period. See, e.g., DE 65 ¶ 151 (alleging that the Current Builder Defendants were insolvent or on the verge of insolvency as early as March 2023). As for the subpoena to American Global, the Court has reviewed the list of documents the subpoena seeks, which the Current Builder Defendants filed under seal, and the Court finds the requested documents to likewise be relevant. Lastly, the Current Builder Defendants argue, for the first time in their reply, that “Plaintiff fails to explain anywhere in [its response] why it is necessary to serve the subpoenas or explain what information would be obtained that is not already within the possession of the Plaintiff or needed to prove its ‘theory’ of the case.” DE 176 at 2. However, because this argument was raised for the first time in the Current Builder Defendants’ reply, the Court will not consider this argument. See, e.g., MY. P.I.I. LLC v. H&R Marine Eng'g, Inc., 544 F. Supp. 3d 1334, 1349 (S.D. Fla. 2021) (noting that it is “well-established” that arguments raised for first time in a reply are deemed waived); Amargos v. Verified Nutrition, LLC, 666 F. Supp. 3d 1249, 1250 (S.D. Fla. 2022) (“Thus, to the extent that Defendant's Reply raises new arguments not addressed in its Motion ... the Court will disregard such arguments.”). III. Plaintiff's Request for Fees Plaintiff, without a citation to a rule permitting it to recover its fees, requests its attorney's fees incurred in opposing the Current Builder Defendants’ Motion, claiming the Motion was not substantially justified. DE 175 at 3. So long as the Court believes that the parties are acting in good faith, the Court generally does not award fees when ruling on discovery motions. However, seeing as this is now at least the sixth time the parties have come before the Court with a discovery dispute, the Court is beginning to question whether the parties are complying with their discovery obligations in good faith. Accordingly, the Court cautions the parties that, for any future discovery dispute, the Court will seriously consider awarding fees as part of the Court's ruling. Plaintiff's request for attorney's fees is DENIED. IV. Conclusion For the foregoing reasons, the Court DENIES the Current Builder Defendants’ Motion [DE 173] and Plaintiff's request for attorney's fees. DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 5th day of September, 2024.