UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

RECEIVED 

MAY 2 8 201'1 . 

CHARLES HAMMER, on behalf of 

himself and all others similarly situated, 

Plaintiff, 

v. 

VITAL PHARMACEUTICALS, INC. 

d/b/a VPX; ABC COs. NOS. 1-100; JOHN 

DOEs NOS.1-100; XYZ COs NOS.1-100; 

Robert ROEs NOS. 1-100; DEFENDANT 

COs NOS. 1-100 and JOHN SMITHs NOS. 

1-100 (fictitious names), 

Defendants. 

AT8:3o_ 

WILLIAM T. WALSH-M 

CLERK 

Civil Action No.: 11-4124 (MAS)(DEA) 

MEMORANDUM OPINION 

AND ORDER 

This matter comes before the Court on the Motion of Defendant Vital Pharmaceuticals, 

Inc. d/b/a VPXIREDLINE ("VPX") to quash the subpoenas issued by Plaintiff Charles Hammer 

("Hammer") [ dkt. no. 57]. Plaintiff has opposed this Motion [ dkt. no. 59]. For the reasons 

specified below, VPX's Motion is DENIED. 

The facts of this dispute are well known to the parties and need not be repeated at length. 

Briefly, Hammer alleges that VPX has engaged in fraudulent and deceptive marketing of Liquid 

Clenbutrx Hardcore, a dietary supplement, in violation of the New Jersey Consumer Fraud Act, 

N.J.S.A. 56:8-1. See Plaintiff's Amended Complaint at p. 2, dkt. entry no. 42. On April 15, 

2014, Hammer served subpoenas on 128 non-parties. See Def.'s Br. at p. 1, dkt. no. 57. The 

subpoenas required a response on or around May 10, 2014. Id. The subpoenas requested 

documents concerning mail and internet sales of Clenbutrx to consumers in New Jersey.· Id. 

Due to an error by Hammer, service of the subpoenas was not preceded by notice to VPX. See 

Pl.'s Br. at p. 1, dkt. no. 59. Hammer provided VPX with a list of the subpoenaed third parties 

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on April22, 2014. See Def.'s Br. at p. 1. 

Fed. R. Civ. P. 45(a)(4) requires that before a subpoena is served on nonparties, notice 

and a copy of the subpoena must be served on each party. Inasmuch as Hammer did not adhere 

to the Rule, VPX argues that the Court should quash the subpoenas and require Hammer to 

inform each recipient of the pending motion. Although Hammer failed to satisfy a technical 

aspect of Rule 45(a)(4), VPX has not demonstrated any actual prejudice from the lack of prior 

notice. District Courts have regularly denied motions to quash based on failure to provide notice 

in the absence of a demonstration of prejudice to the moving party. See, M' Vondersaar v. 

Starbucks Corp., C 13-80061 SI, 2013 WL 1915746 (N.D. Cal. May 8, 2013) (court declined to 

quash the subpoena and found no harm occurred from the delay of the notice when the 

defendants still had ample time to object to the subpoena); Fox Indus., Inc. v. Gurovich, CV03-

5166(TCP)(WDW), 2006 WL 2882580 (E.D.N.Y. Oct. 6, 2006) (subpoena was not 

automatically quashed when the opposing party was not prejudiced by lack of timely notice). 

The Court finds that VPX suffered no prejudice as a result of Hammer's violation of Fed. 

R. Civ. P. 45(a)(4). VPX was served notice of the subpoenas shortly after the service of the 

subpoenas on the recipients and VPX has failed to articulate any prejudice suffered by the one 

week delay. The production date was set for May 10, 2014, allowing VPX ample time to object 

to the substance of the subpoenas subpoenas. In addition, the Court declines to quash the 

subpoenas inasmuch as requiring Hammer to re-serve the subpoenas due to a procedural defect 

would cause an undue and inefficient delay in the case. Accordingly, VPX's request is 

DENIED. 

The Court having considered the papers submitted and the opposition thereto, and for the 

reasons set forth above; 

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Case 3:11-cv-04124-MAS-DEA Document 61 Filed 05/28/14 Page 2 of 3 PageID: 855
IT IS on this 28th day of May, 2014, 

ORDERED that VPX' s Motion to Quash Subpoenas is DENIED. 

s/ Douglas E. Arpert 

DOUGLAS E. ARPERT 

UNITED STATES MAGISTRATE JUDGE 

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