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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

 

RONALD ARGENTO, et al., )

) Case No. 2:15-cv-01277-JAD-NJK

Plaintiff(s), )

) ORDER TRANSFERRING SUBPOENAvs. ) RELATED MOTIONS

) 

SYLVANIA LIGHTING SERVICES CORP., ) (Docket Nos. 1, 15, 16) 

)

Defendant(s). )

__________________________________________) 

Pending before the Court is Plaintiffs’ renewed motion to transfer pursuant to Rule 45(f). Docket

No. 16.1 Subpoenaed nonparty Clark County School District (“CCSD”) filed a response in opposition.

Docket No. 20. Defendant also filed a response in opposition. Docket No. 23. Plaintiffs filed a reply. 

Docket No. 26. The Court finds the motion properly resolved without oral argument. See Local Rule 78-2. 

For the reasons discussed more fully below, the motion to transfer is hereby GRANTED.

I. BACKGROUND

On February 19, 2013, Plaintiffs initiated a lawsuit in the District of Arizona bringing claims for

unpaid wages and overtime. Argento v. Sylvania Lighting Servs. Corp.,Case No. 2:13-cv-00351-HRH (D.

Ariz.) (hereinafter “Arizona litigation”).2 As part of that litigation, a subpoena was issued from the District

of Arizona that Plaintiffs served on CCSD in July 2014. See, e.g., Docket No. 28-1. That subpoena sought

documents from CCSD, including alarm code logs and records from the CCSD Police Department

concerning the times Sylvania employees would arrive and depart from the schools. See id. at 8. 

1

 Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil Procedure.

2 Citations to the record in the Arizona litigation will be referenced as “Arizona Litigation, Docket

No. __.” Citations to the record in this case will be referenced as “Docket No. __.”

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Defendant thereafter filed a motion to quash that subpoena in the District of Arizona. Arizona

Litigation, Docket No. 80. Defendant argued that, inter alia, the above documents were not relevant to the

Arizona litigation. See id. at 3-4. On August 26, 2014, Judge Holland3resolved that motion to quash,

concluding in pertinent part as follows:

Plaintiffs seek alarm system reports and security logs through their subpoenas to third

parties. There is apparently conflicting evidence as to whose employees were responsible

for arming and disarming school alarm systems at the beginning and end of the work day. 

These records may be relevant or lead to relevant information if the records maintained by

the third-party employers of defendant either disclose the identity of the persons arming or

disarming the security systems or disclose the identity of the non-school employees who are

admitted and also record the dates and times associated with alarm system and/or access

activity.

Arizona Litigation, Docket No. 110.

Following issuance of the order resolving Defendant’s motion to quash, Plaintiffs engaged in a

lengthy meet-and-confer process with CCSD regarding the subpoena. See Docket No. 16-1. Unable to

reach an agreement, Plaintiffs filed in the District of Arizona a motion to compel CCSD to comply with

the subpoena. Arizona Litigation, Docket No. 179. Noting that the subpoena at issue required compliance

in this District rather than in the District of Arizona, Judge Holland concluded that the motion to compel

was filed in the wrong district and denied it on those grounds. Id. Judge Holland also noted that “Plaintiffs

may move to reinstate the instant motion when and if the matter of enforcement of the plaintiffs’ subpoena

is transferred by the Nevada District Court to [the District of Arizona].” Id.

Plaintiffs then commenced a miscellaneous action in this case by filing a motion to compel, along

with a motion to transfer the motion to compel to the District of Arizona. Docket Nos. 1, 2. The Court

denied without prejudice the motion to transfer so that the parties could better address case law emanating

from within this Circuit and this District. Docket No. 10. Plaintiffs then renewed the motion to transfer,

Docket No. 16, which is now fully briefed.4

 

3

Judge H. Russel Holland, a United States District Judge in the District of Alaska, is sitting by

designation on the underlying litigation in the District of Arizona. See Arizona Litigation, Docket No. 11.

4

 Although not ordered to do so, Plaintiffs also re-filed their motion to compel. Docket No. 15. 

2

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II. MAGISTRATE JUDGE AUTHORITY

The pending motion to transfer has been referred to the undersigned magistrate judge. Before

turning to the merits of the pending motion, the Court evaluates its authority to decide it. The authority

of the undersigned magistrate judge is derived from 28 U.S.C. § 636, which generally provides magistrate

judges with the authority to “hear and determine” non-dispositive matters. See 28 U.S.C. § 636(b)(1)(A);

see also S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1259 (9th Cir. 2013). By contrast, dispositive

matters are sometimes referred to magistrate judges, but in those circumstances a magistrate judge submits

a recommendation to the assigned district judge that is subject to the district judge’s de novo review. See

28 U.S.C. § 636(b)(1)(B); see also CMKM Diamonds, 729 F.3d at 1259-60. Section 636 specifically

enumerates eight different types of motions to be treated as “dispositive.” See 28 U.S.C. § 636(b)(1)(A)-

(B).5 When a motion falls outside of those expressly enumerated as dispositive, courts turn to a “functional

approach” of looking to the nature and effect of the pending motion to determine whether the resulting

order should be considered dispositive in nature. See Flam v. Flam, 788 F.3d 1043, 1046-47 (9th Cir.

2015) (holding that an order granting a motion to remand to state court is dispositive because the remand

order is dispositive of all federal proceedings).

Courts are in agreement that Rule 45(f) motions to transfer fall within the gambit of non-dispositive

matters properly determined by a magistrate judge. See, e.g., San Juan Cable LLC v. DISH Network LLC,

2015 WL 500631, *2 (D. Colo. Jan. 23, 2015) (citing Elliott v. Mission Trust Servs., LLC, 2014 WL

6772474, *2 (W.D. Tex. Dec. 1, 2014) and Agincourt Gaming, LLC v. Zynga, Inc., 2014 WL 4079555, *2

(D. Nev. Aug. 15, 2014)). In ruling on whether to transfer subpoena-related motions, the Court is not

depriving a party of a federal forum to resolve a dispute but is rather transferring the authority to resolve

the discovery dispute to another federal court. Cf. Pavao v. Unifund CCR Partners, 934 F. Supp. 2d 1238,

1241 n.1 (S.D. Cal. 2013) (collecting cases that transfers under 28 U.S.C. § 1404(a) are considered nondispositive). The nondispositive nature of the resulting order is not altered by the fact that a Rule 45(f)

motion to transfer comes before the Court in the context of a miscellaneous action based entirely on the

5 The Federal Rules of Civil Procedure similarlydifferentiate between nondispositive and dispositive

matters handled by magistrate judges. See Fed. R. Civ. P. 72.

3

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disputed subpoenas, even though the resolution of the motion to transfer may be dispositive of the

miscellaneous action and result in the administrative closing of that case. Agincourt Gaming, 2014 WL

4079555, at *2 (citing Feist v. RCN Corp., 2012 WL 4835038, *1 (N.D. Cal. Oct. 4, 2012)); see also

Cognate BioServices, Inc. v. Smith, 2015 WL 1256499, *6 n.19 (D. Md. Mar. 17, 2015). Accordingly, the

undersigned has the authority to resolve the motion to transfer that is currently pending before the Court.

III. APPLICABLE VERSION OF RULE 45

Before the Court turns to the underlying dispute, it will also address the threshold issue of which

version of the applicable rules govern its analysis. The Court’s analysis in deciding disputes regarding

subpoenas served on nonparties is governed by Rule 45. See, e.g., Agincourt Gaming, 2014 WL 4079555,

at *2 (citing Paws Up Ranch, LLC v. Green, 2013 WL 6184940, *1 (D. Nev. Nov. 22, 2013)). Significant

changes were made to Rule 45 through the 2013 amendments, which went into effect on December 1, 2013. 

See Wultz v. Bank of China, Ltd., 304 F.R.D. 38, 42 (D.D.C. 2014). “In its order adopting the 2013

amendments to Rule 45, the Supreme Court specified the amendments would govern in all proceedings

commenced after December 1, 2013, and, ‘insofar as just and practicable, all proceedings then pending.’” 

Garden City Emps.’ Retirement Sys. v. Psychiatric Solutions, Inc., 2014 WL 272088, *3 (E.D. Pa. Jan. 24,

2014). 

In this case, the underlying Arizona litigation was commenced on or about February 19, 2013, but

the disputed subpoena was served in July 2014, and the miscellaneous proceeding in this Court challenging

that subpoena was initiated on June 18, 2015. Hence, the underlying Arizona proceedings commenced

prior to December 1, 2013, but the subpoena-related proceedings commenced after that date. The parties

do not dispute that it would be “just and practicable” for the Court to apply the current version of Rule 45

in these circumstances, and the Court finds it proper to do so.

IV. STANDARDS AND ANALYSIS

The issue presently before the Court is whether Plaintiffs’ motion to compel should be decided by

this Court–as the court for the district where compliance with the subpoena is required–or by the District

of Arizona–as the court that issued the subpoena and home to the underlying litigation. As discussed in

more detail below, the Court finds that the motion to compel should be decided by the District of Arizona

as the issuing court.

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A. Standards

The pending motion to transfer centers on the recently-enacted Rule 45(f). Prior to the 2013

amendments, subpoenas for depositions or production of documents were issued from the court for the

district where compliance is required, and the power to quash or modify any issued subpoenas was reserved

to that court. See Wultz, 304 F.R.D. at 42. Under the new rule, “[a] subpoena must issue from the court

where the action is pending.” Fed. R. Civ. P. 45(a)(2). While the court where the action is pending issues

subpoenas, the authority to adjudicate a motion to compel arising out of those subpoenas is vested with the

court where compliance is required. See Fed. R. Civ. P. 45(d)(2)(B)(i) (“the serving party may move the

court for the district where compliance is required for an order compelling production or inspection”); see

also Fed. R. Civ. P. 37(a)(2) (“A motion for an order to a nonparty must be made in the court where

discovery is or will be taken”). The new rule also provides a vehicle for transferring such motions to the

issuing court: “When the court where compliance is required did not issue the subpoena, it may transfer a

motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds

exceptional circumstances.” Fed. R. Civ. P. 45(f). In short, the rules now provide that subpoenas are issued

from the court where the action is pending, while motion practice arising out of those subpoenas is decided

by the court where compliance is required absent that court transferring the matter to the court where the

action is pending.

6

The party seeking a Rule 45(f) transfer bears the burden of showing that exceptional circumstances

are present. Music Group Macao Commercial Offshore Ltd. v. Does, ___ F. Supp. 3d ____, 2015 WL

930249, *3 (N.D. Cal. Mar. 2, 2015); see also Agincourt Gaming, 2014 WL 4079555, at *6. Whether to

transfer a subpoena-related motion is committed to the discretion of the court where compliance is required. 

See Moon Mountain Farms, LLC v. Rural Community Ins. Co., 301 F.R.D. 426, 429 (N.D. Cal. 2014). A

determination of whether “exceptional circumstances” exists turns on the particular facts of each case. 

Agincourt Gaming, 2014 WL 4079555, at *6. “While a prime concern is to avoid burdens on local

nonparties subject to subpoenas, this interest of the nonparty in obtaining local resolution of the motion,

6

If necessaryto enforce the resulting order, the issuing court may transfer the matter back to the court

where compliance is required. See Fed. R. Civ. P. 45(f). 

5

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must be balanced with the interests in ensuring the efficient, fair and orderly progress of ongoing litigation

before the issuing court.” Judicial Watch, Inc. v. Valle Del Sol, Inc., 307 F.R.D. 30, 34 (D.D.C. 2014)

(internal alterations and quotations omitted). The court considering the transfer motion should not assume

that the issuing court is in a better position to resolve subpoena-related motions. In re UBS Fin’l Servs.,

Inc. of Puerto Rico Securities Litig., ___ F. Supp. 3d ____, 2015 WL 4148857, *1 (D.D.C. July 9, 2015). 

Nonetheless, “transfer may be warranted in order to avoid disrupting the issuing court’s management of

the underlying litigation, as when the court has already ruled on issues presented by the motion or the same

issues are likely to arise in discovery in many districts,” so long as those interests outweigh the interests

of the subpoenaed party in obtaining local resolution of the motion. Moon Mountain, 301 F.R.D. at 428

(quoting Fed. R. Civ. P. 45(f) Advisory Committee Notes (2013)).7

B. Analysis

1. Waiver

 Plaintiffs argue that Defendant’s objections to transferring the motion to compel were implicitly

waived by Defendant when it filed a motion to quash in the District of Arizona. Docket No. 26 at 2. There

is some force to this argument. It is certainly noteworthy that Defendant now opposes transferring

Plaintiffs’ motion to compel to the District of Arizona despite Defendant itself previously invoking that

court’s jurisdiction to challenge the exact same subpoena through a motion to quash and then receiving a

ruling on that motion to quash on issues that overlap with those presented in the briefing on the motion to

compel. It violates fundamental principles of both fairness and efficient judicial case management to allow

a party to challenge the same subpoena twice in two different courts. Cf. St. Jude Medical S.C., Inc. v.

Janssen-Counotte, ___ F. Supp. 3d ____, 2015 WL 2359568, *13 (D. Or. May 18, 2015). Ultimately,

however, the Court need not resolve the waiver argument in this case because CCSD has also opposed the

7

In conducting this analysis, the Court will at times refer to arguments raised in the briefing on

Plaintiffs’ motion to compel. The Court addresses these arguments solely to discuss overlapping issues with

the Arizona litigation and which court is better suited to address the arguments raised. The Court herein

expresses no opinion as to the merits of the pending motion to compel. 

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motion to transfer8and the Court finds Defendant’s arguments unpersuasive even considering them on the

merits.

2. Judicial Economy

The Court finds that judicial economy militates strongly in favor of transfer. The issuing court has

already reviewed the subpoena now in dispute here in resolving Defendant’s motion to quash. See, e.g.,

Docket No. 28-3. In doing so, the issuing court has also already ruled on the scope of relevant documents

for which production is required under the subpoena. See Arizona Litigation, Docket No. 110. Defendant

appears to argue that the issuing court’s previous ruling is only“tangentiallyrelated” to the pending dispute.

See Docket No. 23 at 6 (citing CMB Expert, LLC v. Atteberry, 2014 WL 2197840, *2 (N.D. Tex. May 27,

2014)). Such a contention is belied by the fact that the issuing court ruled on a relevance argument as to

the exact subpoena currently in dispute here and Defendant itself points to that order as dictating how this

Court should resolve the pending motion to compel. See, e.g., Docket No. 22 at 7-8 (construing what is

or is not relevant “per the Arizona Court’s order”); Docket No. 23 at 4 (asserting that this Court needs to

simply “review and apply” the previous order). The issuing court has already outlined the contours of the

scope of relevant information sought in the subpoena and judicial economy is furthered by having the

issuing court apply that order to the pending motion to compel.

CCSD’s primary argument in opposing the motion to compel is that the subpoena is unduly

burdensome. See Docket No. 19 at 3-5. In considering an “undue burden” argument, courts generally

evaluate whether “the burden or expense of the proposed discoveryoutweighs its likelybenefit, considering

the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake

in the action, and the importance of the discovery in resolving those issues.” See Fed. R. Civ. P.

26(b)(2)(C)(iii); see also St. Jude Medical S.C., Inc. v. Janssen-Counotte, 305 F.R.D. 630, 637 (D. Or.

2015) (Rule 26(b)(2)(C)(iii) proportionality provision applies to Rule 45 analysis). Given this case’s

litigation history, it certainly appears that the issuing court is better positioned to weigh those competing

considerations. Cf. Patriot Nat’l Ins. Group v. Oriska Ins. Co., 973 F. Supp. 2d 173, 176 (N.D.N.Y. 2013)

8 The Court finds unpersuasive Plaintiffs’ arguments that CCSD waived its opportunity to oppose

transfer. See Docket No. 26 at 2.

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(because “the court with the most familiarity with the case is better positioned to determine whether the

documents are indeed relevant, it follows that the court with the most familiarity could also better balance

whatever relevance exists against the need to protect Oriska as a non-party”).

In short, the current discoverydispute overlaps with the dispute alreadydecided bythe issuing court,

and judicial economy is best served by transferring the motion to compel to that court.

3. Inconsistent Rulings

As noted above, the issuing court has already addressed the subpoena that is currently disputed,

ruling that alarm system reports and security logs “may be relevant or lead to relevant information” if the

records show the identity and timing associated with this activity. Arizona Litigation, Docket No. 110.9

Defendant points to that order as governing the resolution of its relevance argument in opposing the

pending motion to compel. See, e.g., Docket No. 22 at 7-8. Defendant then argues that Plaintiffs failed

to “proffer any reason for why the District of Nevada cannot review and apply [Judge Holland’s] prior

discovery order to the Motion to Compel.” Docket No. 23 at 4. While this Court is no doubt capable of

construing and applying an order issued in another District, it makes no sense to do so. How the

undersigned and how Judge Holland view the discovery dispute may well differ. The issuing court has

already addressed this issue and is in the best position to ensure that the resolution of the pending motion

to compel comports with the prior ruling on the motion to quash. The risk of inconsistent rulings further

militates in favor of transferring the motion to compel to the District of Arizona.

4. Disruption of the Issuing Court’s Management of the Underlying Litigation

The Ninth Circuit has consistently reinforced the importance of scheduling orders to the district

courts’ ability to manage their docket and control the course of litigation. E.g., Johnson v. Mammoth

9 CCSD argues that the “risk of overlapping future rulings is not an exceptional circumstance”

warranting transfer. Docket No. 20 at 4 (citing Woods ex rel. United States v. SouthernCare, Inc., 303

F.R.D. 405, 409 (N.D. Ala. 2014)). The decision in Woods does not support CCSD’s position here. That

case differentiated between speculative concerns of inconsistencies in future rulings, and concernsregarding

inconsistency with orders that have already been issued: “the Advisory Committee’s note only identifies

resolution of the motion as disruptive if the issuing court has already ruled on the issues, not if it might rule

on them in the future.” Woods, 303 F.R.D. at 408 (emphasis in original). Unlike the situation facing the

court in Woods, the issuing court here has already ruled on the disputed subpoena and, in particular,

addressed the relevance of the documents sought therein.

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Recreations, Inc., 975 F. 2d 604, 610 (9th Cir. 1992). To that end, district courts are given broad discretion

in supervising the pretrial phase of litigation, including in the enforcement of scheduling orders. Zivkovic

v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 

One of the arguments at issue on the underlying motion to compel is whether that motion should

be denied as untimely. See Docket No. 24 at 4-5. Plaintiffs argue that such a timeliness issue is best

handled byJudgeHolland as the judge overseeingmanagement of the underlying litigation, especiallysince

the order resolving the motion to compel may by necessity require adjusting other deadlines that he has set.

See Docket No. 26 at 3-4. The Court agrees. The Court can think of few intrusions more disruptive to the

issuing court’s ability to manage the underlying litigation than an order from this Court that may well

impact the ability of the case to move forward in the District of Arizona on the timetable preferable to

Judge Holland. See, e.g., Federal Home Loan Mortgage Corp. v. Deloitte &Touche LLP, ___ F.R.D. ____,

2015 WL 3413540, *2-3 (D.D.C. May 28, 2015) (impact that resolution of motion to compel could have

on impending discovery deadlines militated in favor of transfer). The potential disruption to the issuing

court’s management of the underlying litigation militates heavily in favor of transferring the motion to

compel to the District of Arizona.

5. Burden on Respondent

With the above considerations in mind, the Court turns to the competing interests advanced to deny

the motion to transfer. The primary factor to consider in balancing the above is any burden imposed on

local non-parties by transferring the motions to the issuing court. “Transferring a motion to the jurisdiction

where the underlying litigation is pending . . . will require few, if any, modifications of the written

submissions.” Wultz, 304 F.R.D. at 45 (emphasis in original). Moreover, absent unusual circumstances,

the cost of litigation alone does not constitute an unfair burden. See Moon Mountain, 301 F.R.D. at 430.

In opposing the motion to transfer, CCSD provided a conclusory assertion that “it is far more

convenient for CCSD to address the Motion to Compel here in Nevada as it is a local political subdivision

of the State of Nevada and has no interests in Arizona.” Docket No. 20 at 5.10 CCSD also asserts that its

10

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is great.” Docket No. 20 at 4. Whether a subpoenaed nonparty is unduly burdened by complying with the

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witnesses are likely located in this District. Id. The Court does not find any significant burden on CCSD

in transferring Plaintiffs’ motion to compel to the District of Arizona. CCSD’s travel concern is far from

a foregone conclusion and the Advisory Committee Notes provide guidance as to how to minimize such

burden by, inter alia, encouraging transferee courts to allow appearances to be made telephonically in the

event that a hearing is deemed to be necessary. See, e.g., Valle del Sol, Inc. v. Kobach, 2014 WL 3818490,

*3 (D. Kan. Aug. 4, 2014) (quoting Fed. R. Civ. P. 45(f) AdvisoryCommittee Notes (2013)). At this point,

it is not even clear that the District of Arizona would hold a hearing on the motion to compel, see, e.g., D.

Ariz. Local Rule 7.2(f) (“The Court may decide motions without oral argument”), let alone that it would

require personal attendance at any such hearing. To the extent there may be some additional travel costs

imposed due to a transfer, they appear at this point to be speculative and not of a sufficient amount to

outweigh the importance of advancing judicial economy, avoiding inconsistent rulings, and preventing

disruption of the management of the underlying litigation. See Moon Mountain, 301 F.R.D. at 430. In

short, CCSD has presented onlycursoryexplanation regarding anyinconvenience it will face bytransferring

the motion to compel to the District of Arizona. “Almost anysubpoenaed party could make the same undue

burden arguments that [CCSD] makes here.” Id. (quoting Chem-Aqua, Inc. v. Nalco Co., 2014 WL

2645999, *3 (N.D. Tex. June 13, 2014)). The Court finds CCSD’s arguments unconvincing.

The Court is also not persuaded by the arguments raised by Defendant asserting that CCSD will be

burdened by granting the motion to transfer. Defendant relies heavily on the fact that CCSD is not a large

corporation. Docket No. 23 at 5. While it is certainly true that courts are less inclined to find a significant

burden on the subpoenaed nonparty when it is a large corporation, see, e.g., Agincourt Gaming, 2014 WL

4079555, at *8 (citing In re Subpoena to Kia Motors America, Inc., 2014 WL 2118897, *1 (C.D. Cal. Mar.

6, 2014)), that case law does not suggest that a significant burden will always be found so long as the

subpoenaed nonparty is not a large corporation. The Court does not find CCSD’s status as a nonsubpoena is not pertinent to the issue of which court should decide a subpoena-related motion. The “burden

of reviewing, assembling, and producing documents is [not] any different depending on which court issues

an order for [the subpoenaed nonparty] to do so.” Agincourt Gaming, 2014 WL 4079555, at *8. While that

argument may be pertinent to CCSD’s opposition to the motion to compel, the Court does not find it

persuasive with respect to the motion to transfer.

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corporation to be significant in this case. Defendant also asserts that CCSD will be burdened by having

to obtain out-of-state counsel. Docket No. 23 at 5. The Court finds that argument unpersuasive as Rule

45(f) itself expressly provides that a subpoenaed party does not need to obtain out-of-state counsel in the

event of a transfer. See Fed. R. Civ. P. 45(f) (“if the attorney for a person subject to a subpoena is

authorized to practice in the court where the motion was made, the attorney may file papers and appear on

the motion as an officer of the issuing court”); see also Kobach, 2014 WL 3818490, at *5.

V. CONCLUSION

The Court finds that exceptional circumstances exist in this case warranting transfer of the motion

to compel to the District of Arizona based on the fact that a transfer advances judicial economy, avoids the

potential for inconsistent rulings, and prevents disruption of the management of the underlying litigation. 

The Court further finds at most a de minimis burden on CCSD resulting from the transfer. For these

reasons, Plaintiffs’ motion to transfer is hereby GRANTED. The motion to compel (Docket Nos. 1, 15)

are transferred to the District of Arizona for resolution. The Clerk’s Office is further DIRECTED to

administratively close this case. 

IT IS SO ORDERED.

Dated: August 18, 2015

________________________________________

NANCY J. KOPPE

UNITED STATES MAGISTRATE JUDGE

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