1Plaintiffs filed on May 8, 2006 an unopposed motion to

dismiss two nonparty hospitals——Walter Reed Army Medical Center,

Washington, D.C. and Tucson Medical Center, Tucson, Arizona——as

respondents to the motion for contempt and sanctions. By order

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

VICTORIA KLEIN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 7:03-CV-102-D

VS. §

 §

O’NEAL, INC., d/b/a O’NEAL, §

JONES & FELDMAN §

PHARMACEUTICALS, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiffs Victoria Klein and Ashley Swadley, the class

representatives in class action certified under Fed. R. Civ. P.

23(b)(3) arising out of the manufacture and distribution of E-Ferol

Aqueous Solution, a pharmaceutical product administered

intravenously to premature infants, move to compel the production

of the identity of potential class members from the records of two

hospitals located in Louisville, Kentucky that are owned and/or

operated by nonparty Norton Healthcare, Inc. (“Norton”).

Plaintiffs also move the court to hold five other nonparty, out-ofstate hospitals in civil contempt and to impose sanctions on them

for failing to comply with a May 11, 2004 order of this court

(Buchmeyer, J.) by refusing to disclose records that reflect the

identities of potential class members.1

 Following a telephonic

 

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filed today, the court has dismissed the contempt motion as to

these two hospitals.

2Under § 205(a)(5) of the E-Government Act of 2002 and the

definition of “written opinion” adopted by the Judicial Conference

of the United States, this is a “written opinion[ ] issued by the

court” because it “sets forth a reasoned explanation for [the]

court’s decision.” It has been written, however, primarily for the

parties, to decide issues presented in this case, and not for

publication in an official reporter, and should be understood

accordingly.

3BHC responded by letter to plaintiffs’ motion for contempt

and sanctions. The court filed on April 10, 2006 an order that

directed BHC to comply with the local civil rules by filing a

response and brief and causing its counsel to move for leave to

appear pro hac vice. BHC did not comply with the order. Because

the court concludes that it lacks personal jurisdiction over the

nonparties who properly responded to the motions, the same

reasoning applies to BHC. See McGuire v. Sigma Coatings, 48 F.3d

902, 907 (5th Cir. 1995) (“A judgment rendered in the absence of

personal jurisdiction is void and must be set aside.”).

Accordingly, the court denies plaintiffs’ motion for contempt and

sanctions against BHC as well.

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hearing, and for the reasons that follow,2 the court concludes that

it lacks personal jurisdiction over the nonparties and denies both

motions. 

Norton, which operates two hospitals located in Louisville,

Kentucky, Variety Children’s Hospital d/b/a Miami Children's

Hospital (“MCH”), located in Miami, Florida, Piedmont Hospital,

Inc., located in Atlanta, Georgia, and The Brooklyn Hospital Center

(“BHC”), located in Brooklyn, New York, oppose plaintiffs’ motions

on the ground that the court lacks personal jurisdiction over

them.3 They do not dispute that subpoenas could be issued from a

United States District Court that does have jurisdiction, and, for

 

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4

The one exception is MCH, whose counsel’s argument implied

that resolving the disputes with plaintiffs might be more involved

and could require more extensive proceedings in the Southern

District of Florida to resolve MCH’s motion for protective order

filed in that court.

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the most part,4 their counsel indicated during the hearing that

they believed the disputes with plaintiffs can be facilely resolved

once such subpoenas are properly issued and served. Plaintiffs

contend that Rule 23——not the discovery rules——governs this court’s

authority to issue “such orders as are necessary to determine the

identity of class members.” See P. Reply Br. (to MCH) 9. The

cases on which plaintiffs rely in support of their contention that

Rule 23 obviates the requirement that this court have personal

jurisdiction over nonparty witnesses in order to sanction or compel

them are inapposite. See U.S. Catholic Conference v. Abortion

Rights Mobilization, Inc., 487 U.S. 72, 76 (1988) (addressing

nonparty witness’ ability to challenge court’s lack of subject

matter jurisdiction); Oppenheimer Fund, Inc. v. Sanders, 437 U.S.

340, 354 (1978) (addressing district court’s authority under Rule

23(d) with respect to parties to litigation). The court concludes

that none of the nonparty hospitals is subject to this court’s

personal jurisdiction. See, e.g., Stripling v. Jordan Prod. Co.,

L.L.C., 234 F.3d 863, 869 (5th Cir. 2000) (addressing requirements

of personal jurisdiction). The court thus denies plaintiffs’

motions to compel and for civil contempt and sanctions. 

As noted, the nonparties largely appear willing to produce

 

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5

Although plaintiffs do not suggest that they seek to depose

any of the nonparties, under Rule 45(a)(2)(B), the subpoena for

attendance at a deposition is to be issued “for attendance at a

deposition, from the court for the district where the deposition is

to be taken, stating the method for recording the testimony.” 

6

Norton also filed a February 23, 2006 objection to

plaintiffs’ subpoena duces tecum on grounds that this court lacks

personal jurisdiction. Because the subpoenas were apparently

issued by the Western District of Kentucky, the court overrules the

objections without prejudice because motion must be presented to

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records in response to subpoenas issued from a United States

District Court with personal jurisdiction and under terms and

conditions that comply with federal and/or state privacy laws.

During the hearing, plaintiffs’ counsel asserted that plaintiffs

could obtain subpoenas under Rule 45 from this court that would be

returnable to the respective United States District Courts in which

the hospitals were located. The court disagrees. Rule 45(a)(2)(C)

provides that “[a] subpoena must issue . . . for production and

inspection, if separate from a subpoena commanding a person’s

attendance, from the court for the district where the production or

inspection is to be made.” It is improper to issue a subpoena from

this court for production in another district. See, e.g., James v.

Booz-Allen & Hamilton, Inc., 206 F.R.D 15, 19 (D.D.C. 2002) (citing

Echostar Commc’ns Corp. v. News Corp., 180 F.R.D 391, 397 (D. Colo.

1998)).5 Accordingly, plaintiffs must secure the issuance of

subpoenas from the Southern District of Florida, the Western

District of Kentucky, and the Northern District of Georgia,

respectively, for the nonparty hospitals.6

 

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the court that issued them. See Rule 45(c)(3). If, however, the

subpoenas were issued by this court, as plaintiffs’ counsel

suggested at the hearing has sometimes occurred, the court sustains

the objections and quashes the subpoenas for lack of personal

jurisdiction over Norton.

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Finally, as noted above, the parties indicated during the

hearing that, in many respects, they thought they would be able to

resolve the merits of the discovery disputes once the subpoenas

were issued by a court of competent jurisdiction. Nothing in this

memorandum and order should be construed as precluding the prompt

resolution of these matters by agreement, once this occurs. 

* * *

For the reasons explained above, the court denies plaintiffs’

March 20, 2006 motion to compel and their April 3, 2006 motion for

contempt and sanctions.

SO ORDERED.

May 10, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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