                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


MARK GORDON,                                     :
                                                 :
               Plaintiff,                        :       Case No.:           1:13-mc-00021-RC
                                                 :
               v.                                :
                                                 :
MARK J. BORIGINI, M.D.,                          :
                                                 :
               Defendant.                        :

                                 MEMORANDUM OPINION

            DENYING MOTION TO ENFORCE AND COMPEL NON-PARTY SUBPOENA



                                      I. INTRODUCTION
 

       This action arises from the plaintiff’s motion to enforce a non-party subpoena and compel

production against Dr. Mark Borigini. The subpoena was issued and served in the U.S. District

Court for the District of Maryland. For the reasons discussed below, plaintiff’s motion to enforce

the non-party subpoena is denied and the case is dismissed.


                                II. FACTUAL BACKGROUND


       Plaintiff Mark Gordon, who suffers from Lupus, brought suit against Federal Express

Corporation and Aetna Life Insurance Company seeking review of denial of his disability

benefits pursuant to the Employee Retirement Income Security Act of 1974 (ERISA) in the U.S.

District Court for the Middle District of Florida. Pl.’s Mot. to Enforce Non-Party Subpoena and

Compel Produc. (Dkt. No. 1) at 1 & Ex. Q (“Pl.’s Mot.”). The underlying litigation is still



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currently pending in that District. Following the issuance of a limited discovery order1 by

Magistrate Judge Douglas Frazier in the Middle District of Florida, plaintiff has sought further

discovery against Dr. Mark Borigini. Dr. Borgini served as a medical reviewer for MES

Solutions and reviewed Gordon’s continuing claim for disability benefits. Pl.’s Mot. (Dkt. No. 1)

at 1–2. The named defendants in plaintiff’s underlying litigation allegedly relied on a corrected

peer report prepared by Dr. Borigini to terminate plaintiff’s disability benefits. Id.


              On September 19, 2012, plaintiff served Dr. Borigini with a third-party subpoena in the

above-mentioned case. The subpoena was issued by the U.S. District Court for the District of

Maryland. Two months later, plaintiff filed a motion to enforce the subpoena and compel

production in the District for the Middle District of Florida, Jacksonville Division. Def.’s Opp’n

to Mot. to Enforce Subpoena and Compel Produc. (Dkt. No. 4) at 2. The Jacksonville Division

transferred the case to the Fort Myers Division. Id. Plaintiff then moved to strike his motion on

January 7, 2013, noting he “inadvertently mailed [the] document for filing to the wrong Court.”

Id., Ex. B. The court construed plaintiff’s motion to strike as a motion to dismiss the case and

granted dismissal. Id., Ex. C. The court further counseled plaintiff that the relevant subpoena

was issued out of the District of Maryland and that a motion to quash would be properly filed

with that court. Id. The plaintiff proceeded to file a motion to enforce the subpoena in this Court

on January 10, 2013, see Pl.’s Mot., which the defendant opposes.




                                                            
1
  The Order of July 31, 2012 states that “[t]he Plaintiff may serve one (1) interrogatory addressing the circumstances
surrounding the unsigned and corrected MES peer reviewer’s report completed by Dr. Borigini.” Pl.’s Mot. to
Enforce Non-Party Subpoena and Compel Produc. (Dkt. No. 1–8), Ex. H, at 7. Thus, plaintiff’s subpoena
commanding Dr. Borigini to produce various documents appears to be inconsistent with Magistrate Frazier’s order
permitting limited discovery of one interrogatory. Since this Court is denying plaintiff’s motion because the
subpoena was issued from the U.S. District Court for the District of Maryland, the Court does not address the
validity of plaintiff’s request of documents from Dr. Borigini. 

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                                          III. ANALYSIS


       Federal Rule of Civil Procedure 37(a)(1) states that “a party may move for an order

compelling disclosure or discovery.” FED. R. CIV. P. 37(a)(1). Further, “[a] motion for an order

to a nonparty must be made in the court where the discovery is or will be taken.” FED. R. CIV. P.

37(a)(2). A subpoena for production or inspection “must issue . . . from the court for the district

where the production or inspection is to be made.” FED. R. CIV. P. 45(a)(2). “Subpoenas are

process of the issuing court,” Watts v. S.E.C., 482 F.3d 501, 506 (D.C. Cir. 2007) (internal

citations omitted), and “[t]he language of Rule 45 clearly contemplates that the court enforcing a

subpoena will be the court that issued the subpoena.” United States v. Star Scientific, Inc., 205 F.

Supp. 2d 482, 484–85 (D. Md. 2002); see also FED. R. CIV. P. 45(a)(2), Advisory Committee

Note, 1991 Amendments (noting “the court in whose name the subpoena is issued is responsible

for its enforcement”).


       Here, the subpoena has been issued by the District Court for the District of Maryland, yet

the plaintiff filed a motion to compel with this Court. Plaintiff explains that the subpoena was

served on Dr. Borigini at his apparent home address in Maryland, but at all times Dr. Borigini

responded to plaintiff’s counsel from a Washington, D.C. address, as evidenced by the letterhead

on Dr. Borigini’s correspondence. Pl.’s Resp. to Def.’s Opp’n to Enforce Subpoena (Dkt. No. 5)

at 2. Although plaintiff does not clearly state a basis for why he filed his motion to compel in this

District, the Court credits plaintiff’s response as arguing that, since Dr. Borigini only responded

to the subpoena from a Washington, D.C. address, this Court has the authority to enforce the

subpoena. Id. The only plausible basis for plaintiff’s decision is the text of Rule 37(a)(1), which

stipulates “a motion for an order to a nonparty must be made in the court where the discovery is

or will be taken.” FED. R. CIV. P. 37(a)(2). Since Dr. Borigini responded to all of the plaintiff’s

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communications from an address in Washington, D.C. rather than the Maryland address at which

he was served, the plaintiff arguably believed that this Court could properly enforce the

subpoena as the plaintiff hopes “discovery. . . will be taken” in the District of Columbia. This

does not negate, however, that the subpoena was originally issued from the District of Maryland

and any motion to compel would properly be filed with that court. As previously stated,

subpoenas are process of the issuing court and “nothing in the Rules even hints that any other

court may be given the power to quash or enforce them.” In re Sealed Case, 141 F.3d 337, 341

(D.C. Cir. 1998). Accordingly, the plaintiff’s motion to enforce and compel is denied.


       Defendant requests that this Court award him expenses incurred in opposing the

plaintiff’s motion pursuant to Federal Rule of Civil Procedure 37(a)(5), which states:


       [i]f the motion [to compel] is denied, the court . . . must, after giving an
       opportunity to be heard, require the movant . . . to pay the party or
       deponent who opposed the motion its reasonable expenses incurred in
       opposing the motion, including attorney's fees. But the court must not
       order this payment if the motion was substantially justified or other
       circumstances make an award of expenses unjust.
The language of the rule is mandatory, and a court must award expenses unless one of the two

exceptions is present. Id. A district court nevertheless has broad discretion under Rule 37 to

impose sanctions for discovery violations and to determine what level of sanctions is appropriate. 

See Jackson v. CCA of Tennessee, Inc., 254 F.R.D. 135, 138 (D.D.C. 2008); see also Bonds v.

Dist. of Columbia, 93 F.3d 801, 807–8 (D.C. Cir. 1996); DL v. Dist. of Columbia, 251 F.R.D. 38,

49 (D.D.C. 2008).


       The plaintiff’s motion cannot be deemed substantially justified, as it was filed in the

wrong court. Despite the plaintiff’s misplaced motion, the Court nonetheless determines that

awarding expenses would be unjust. The plaintiff suffers from Lupus and is challenging the


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denial of his disability benefits under ERISA. Plaintiff alleges that Dr. Borigini’s corrected

report was relied on by his disability plan administrator to deny him continued benefits and

therefore seeks discovery regarding the circumstances behind Dr. Borigini’s issuance of the

corrected report. There is no indication that plaintiff’s counsel erroneously filed the motion to

compel in either Florida or this Court in order to gain strategic advantage. Thus, plaintiff, a

disabled litigant, will still face the task of continuing to seek discovery responses from Dr.

Borigini by acting upon the subpoena issued by the District Court for the District of Maryland.

Accordingly, the Court finds that it would be unjust to require plaintiff to pay defendant’s

reasonable expenses in opposing the motion to enforce and compel, and the defendant’s request

is therefore denied.


                                       IV. CONCLUSION


       The plaintiff’s motion to enforce the non-party subpoena and compel production is

hereby denied, and the case dismissed. The Court also declines to award defendant expenses and

attorney’s fees incurred in responding to plaintiff’s motion. An Order consistent with this

Memorandum Opinion is issued separately.




                                                                   RUDOLPH CONTRERAS
                                                                   United States District Judge
 

 




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