                                                                  [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                     ------------------------------------------- U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                  No. 05-15461                         August 15, 2006
                            Non-Argument Calendar                   THOMAS K. KAHN
                    --------------------------------------------          CLERK

                D.C. Docket No. 05-00093-CV-5-RV-MD

CINCINNATI INSURANCE COMPANY,

                                                     Plaintiff,

R. HAROLD DEESE,
                                                     Interested Party-Appellee,

                                      versus

MATTHEW LEATH COCHRAN,
FOREIGN AUTO PARTS OF MOBILE INC.,
PROFESSIONAL ENGINE SERVICE OF MOBILE,

                                                     Defendants-Appellants,

STEPHEN M. TUNSTALL,

                                                     Appellant.

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               Appeal from the United States District Court
                  for the Northern District of Florida
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                              (August 15, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.


PER CURIAM:

       Appellant Matthew Leath Cochran, defendant in a declaratory judgment

action brought by Cincinnati Insurance Co. in the United States District Court for

the Southern District of Alabama (the “Cincinnati Insurance action”),1 appeals a

discovery order and award of sanctions of the United States District Court for the

Northern District of Florida, in favor of Appellee Fire Engineering Consultants,

Inc./ Harold Deese,2 a non-party witness in the Cincinnati Insurance action. No

reversible error has been shown; we affirm.

       As part of discovery in the Cincinnati Insurance action, on 21 September

2004, Appellant issued a subpoena duces tecum in the name of the United States

District Court for the Northern District of Florida to Appellee, who is located in

Panama City, Florida (more than 100 miles from the Southern District of

Alabama). When no discovery was forthcoming from Appellee, on 20 October




  1
   Also named as defendants in the Cincinnati Insurance action were two businesses of Appellant
Cochran, Foreign Auto Parts of Mobile, Inc., and Professional Engine Service of Mobile.
  2
   The discovery motion in the Northern District of Florida was brought naming “Fire Engineering
Consultants, Inc./Harold Deese.” As the magistrate judge observed, the record is much confused
about who, if anyone, was served. Complicating the matter further, it seems that only Deese
appeared in opposition to the motion to compel.

                                               2
2004, Appellant made a motion to compel in the district court in Florida. Appellee

responded to this motion with a motion to quash and for sanctions.

      A hearing was held on the motion to compel and the motion to quash and

for sanctions before a magistrate judge on 8 December 2004. Much of that

hearing focused on infirmities in the subpoena duces tecum, the timeliness of the

motion to compel, and the timeliness of the motion to quash and for sanctions.

The magistrate judge determined that (i) the subpoena -- if it was served -- failed

to comply with Fed.R.Civ.P. 45, was invalid and unenforceable; (ii) no reasonable

steps were taken to avoid placing an undue burden on a non-party; (iii) the motion

to compel was untimely; and (iv) the motion for protective order was due to be

granted. In awarding sanctions, the magistrate judge noted -- in addition to the

invalidity of the subpoena and the failure to take reasonable steps to avoid placing

an undue burden on Appellee -- that Appellant’s counsel had failed to cooperate

and otherwise failed to act professionally. Sanctions were awarded after receipt of

Appellee’s statement of expenses incurred responding to the invalid subpoena and

motion to compel; Appellant filed no response in opposition to the requested

expenses. Appellant appealed the protective order and the sanctions imposed to a

district judge.




                                          3
       The district court also determined that the subpoena duces tecum was due to

be quashed and Appellant’s motion to compel -- which the court also considered

untimely filed -- denied because the subpoena failed to comply in many respects

with the requirements of Rule 45.3 Appellant argued before the district court and

again argues on appeal that the subpoena was issued in good faith; Appellant does

not -- and can not reasonably -- argue that the subpoena satisfied applicable

procedural requirements.

       The district court also affirmed the imposition of sanctions. Appellant

challenged the sanctions by (i) arguing that no sufficient notice and opportunity to

be heard preceded the sanction judgment, and (ii) taking issue with the facts upon

which the magistrate relied. Appellant repeats those challenges in this appeal.

       About Appellant’s contention that insufficient notice and opportunity to be

heard preceded the imposition of sanctions, we note, as did the district court, that

Appellant was given notice that the hearing before the magistrate was to address

Appellant’s motion to compel and to address Appellee’s motion for protective

order and sanctions. Appellant was afforded adequate notice; he could have



   3
     Both the magistrate judge and the district judge noted that procedural defects in a subpoena
usually may be cured by amendment and reservice. Because the period for discovery had expired
in the Cincinnati Insurance action, the Appellant would need to seek an extension of discovery in
the Southern District of Alabama before seeking to amend the subpoena.

                                               4
addressed the motion for sanctions by filing a memorandum in opposition -- as

required by Local Rule 7.1 -- and by arguing against the motion at the hearing.

Appellant chose neither course.4 Appellant was afforded sufficient opportunity to

be heard.

       In the district court, Appellant sought to introduce affidavits and orders

entered in the Cincinnatti Insurance action in an effort to show that the magistrate

judge erred in concluding that Appellant had acted unprofessionally. Appellant

contended that these belatedly proffered materials showed that the magistrate

judge relied on misstatements of fact and purposeful distortions made by

Appellee’s counsel at the hearing. The district court refused to consider this new

evidence; the materials proffered were not earlier unavailable to Appellant but

were not presented to the magistrate judge. Nonetheless, the district court

determined that even if the magistrate’s finding of unprofessionalism was

disregarded, the magistrate’s imposition of sanctions was due to be affirmed based

on the magistrate’s findings that the subpoena was invalid and overly broad.




   4
    Appellant’s brief concedes that he decided to focus on his motion to compel and to ignore his
adversary’s attacks. Although Appellant does contend that he was twice interrupted when he
attempted to respond to assertions made by Appellee, the record discloses that Appellant had ample
opportunity to contest the imposition of sanctions.

                                                5
      Again on appeal Appellant seeks to argue the factual determinations

underlying the magistrate’s decision that counsel acted unprofessionally; and

again, he relies on evidence that was not before the magistrate judge and that the

district court refused expressly to consider. But Appellant takes no issue with the

factual findings that the subpoena duces tecum issued to Appellee was invalid and

that the subpoena, as originally issued, was overly broad and imposed an undue

burden on a non-party. Based on these findings -- which are supported by the

record -- we can not say that the district court abused its discretion when it

determined that the imposition of monetary sanctions was neither clearly

erroneous nor contrary to law.

      AFFIRMED.




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