Dublin Eye Assoc., P.C., et al, v. Mass. Mutual Life Ins. Co., et al CIVIL ACTION NO. 5:11-cv-128-KSF U.S. District Court, E.D. Kentucky, Central Div. Lexington October 11, 2012 Counsel Jessica Katherine Winters, Richard A. Getty, The Getty Law Group, PLLC, Lexington, KY, for Plaintiffs Angela Logan Edwards, Lisa D. Hughes, Dinsmore & Shohl, LLP, Louisville, KY, Barbara B. Edelman, Haley Trogdlen McCauley, Dinsmore & Shohl LLP, Lexington, KY, for Defendant Massachusetts Mutual Life Insurance Company Barbara B. Edelman, Dinsmore & Shohl LLP, Barry D. Hunter, Medrith Lee Norman, Frost Brown Todd LLC, Matthew T. Lockaby, Lockaby PLLC, Lexington, KY, for Defendant Thomas Ackerman Matthew T. Lockaby, Lockaby PLLC, Barbara B. Edelman, Dinsmore & Shohl LLP, Lexington, KY, Andrew J. Dorman, Reminger Co., LPA, Cleveland, OH, for Defendants Catherine Chatfield, Qualified Plan Services, Inc., Kimberly Shea Atkins, Edward B., United States Magistrate Judge Order *1 This matter is before the undersigned on the Defendant Massachusetts Mutual Life Insurance Company's, (“Mass Mutual”), Motion to Compel Compliance with Subpoena and Motion for LPL Financial to be Held in Contempt. [Record No. 141]. LPL Financial LLC, (“LPL Financial”), has yet to respond to Mass Mutual's motion and, having received no response or indication of compliance, considers the matter now ripe for consideration. For the reasons discussed more fully below, the Defendant's Motion to Compel Compliance and Motion for LPL Financial to be Held in Contempt will be granted in part and denied in part. I. BACKGROUND The underlying action involves the alleged fraudulent mismanagement of the Plaintiffs' pension plan assets by the Defendant Mass Mutual and its agents. [Record No. 59-1]. Dublin Eye Associates, P.C., (“Dublin Eye”), is a Georgia Professional Corporation who owns and administers a pension plan (the “Plan”). [Record No. 67]. The Plan was established to provide an employment benefit that would grow in value over the course of each Dublin Eye employee's career. [Record No. 23]. Dublin Eye, along with both the current and former trustees of the Plan, claim Mass Mutual and its agents caused numerous whole life insurance policies to be issued by Mass Mutual to Plan participants as part of their pension plan portfolios without their knowledge or consent. [Record No. 19-1]. As a result, the Plaintiffs claim that the Defendants grossly and fraudulently mismanaged the Plan's assets. [Record No. 67]. During the course of discovery, Mass Mutual learned that LPL Financial may have documents relevant to the instant action or materials that would likely lead to discoverable information. [Record No. 141-1, at 2]. Accordingly, a subpoena duces tecum was issued by this Court on August 21, 2012 directing LPL Financial to produce the documents requested by Mass Mutual by August 31, 2012. [Record No. 142-1]. However, the subpoena was not served on LPL Financial until August 27, 2012. [Record No. 142-1]. On August 31, 2012, associate counsel for LPL Financial advised Mass Mutual's counsel that LPL Financial would be unable to meet the deadline set forth in the subpoena. [Record No. 141-1, at 4]. Both parties agreed that LPL Financial would contact counsel for Mass Mutual regarding this matter no later that September 5, 2012. [Record No. 141-1, at 4]. Since the communications of August 31, 2012, LPL Financial has made no contact with Mass Mutual or its counsel despite repeated attempts by counsel for Mass Mutual and has not produced the requested materials. [Record No. 141-1, at 4-5]. Accordingly, Mass Mutual filed the instant motion on September 24, 2012 pursuant to FEDERAL RULE OF CIVIL PROCEDURE 45 to compel LPL Financial's compliance with the subpoena and hold LPL Financial in contempt for its henceforth failure to comply. [Record No. 141]. The Court has refrained from ruling on the motion thus far to give LPL Financial time to receive the motion, which was served on LPL Financial by U.S. Mail, and either respond to the motion or provide Mass Mutual with the requested documents. LPL Financial has yet to file a response and has not, to the Court's knowledge, complied with the subpoena. With LPL Financial's failure to respond to Mass Mutual's motion, the Court now considers the matter ripe for consideration. II. MOTION TO COMPEL *2 Mass Mutual seeks documentation of LPL Financial's involvement with and services provided to forty-four (44) individuals and entities, as well as the originals or other copies of the facsimile documents attached to the subpoena by Mass Mutual. [Record No. 142-1]. The FEDERAL RULES OF CIVIL PROCEDURE allow a party to seek discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense” or appears reasonably calculated to lead to the discovery of relevant evidence. FED. R. CIV. P. 26(b)(1); see also Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); Lewis v. ABC Bus. Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998). Moreover, a party may make a request for a non-party to produce “any designated document or electronically stored information” in the responding party's possession, custody, or control, that is within the scope of RULE 26(b). FED. R. CIV. P. 34(a), (c) & 45. Upon proper service, if the party to whom the subpoena was issued wishes to challenge the request, they may object to the order or move the court to quash or modify the subpoena. FED. R. CIV. P. 45(c). Any objections not made or grounds not raised in a timely fashion are considered to be waived unless the nonparty is required to travel more than 100 miles in order to comply. Halawani v. Wolfenbarger, No. 07-15483, 72 Fed. R. Serv. 3d (Callaghan) 442, 2008 WL 5188813, at *5, 2008 U.S. Dist. LEXIS 100482 at *11 (E.D. Mich. Dec. 10, 2008) (quoting American Electric Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999)). “However, in unusual circumstances and for good cause shown, failure to make timely objection to a subpoena duces tecum will not bar consideration of objection.” Halawani, 2008 WL 5188813, at *4, 2008 U.S. Dist. LEXIS 100482, at *8 (citation omitted). LPL Financial as been allowed adequate time to comply with Mass Mutual's request for production and has not raised any objection or asked the Court to squash or modify the subpoena. Therefore, Mass Mutual's Motion to Compel Compliance is granted and LPL Financial is ordered to comply with the subpoena duces tecum. III. MOTION TO HOLD IN CONTEMPT FEDERAL RULE OF CIVIL PROCEDURE 45(e) gives the court from which the subpoena was issued the power to “hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena.” FED. R. CIV. P. 45(e). “However, in order to impose sanctions on a nonparty, violation of a court order is generally required in addition to the failure to comply with the subpoena.” Taylor v. Hart, Case No. 1:02-cv-446, 2007 WL 1959211, at *1, 2007 U.S. Dist. LEXIS 47385 at *2 (S.D. Ohio June 29, 2007) (citing Cruz v. Meachum, 153 F.R.D. 366, 368 (D. Conn. 1994)); see also, e.g., Greer v. Home Realty Co. Of Memphis, No: 07-2639-SHM-egb, 2009 WL 3757706, at *1, 2009 U.S. Dist. LEXIS 110604, at *3 (W.D. Tenn. April 8, 2009), Noris v. Innovate, Inc., CASE NO. 3:05-0896, 2007 WL 190180, at *1, 2007 U.S. Dist. LEXIS 8549 at *3 (M.D. Tenn. Jan. 4, 2007). As there has been no previous order by the Court compelling LPL Financial to comply with the subpoena, the issuance of sanctions is premature. Therefore, the request to hold LPL Financial in contempt is denied without prejudice with leave for Mass Mutual to refile if LPL Financial does not comply without adequate excuse to this Order. IV. CONCLUSION Having considered the matter fully, and being otherwise sufficiently advised, IT IS ORDERED AS FOLLOWS: (1) Defendant Mass Mutual's Motion to Compel Compliance and Motion for LPL Financial to be Held in Contempt [Record No. 141] is GRANTED IN PART and DENIED IN PART. As outlined above, LPL Financial shall comply with Mass Mutual's subpoena duces tecum by the end of business on FRIDAY, OCTOBER 19, 2012. If LPL Financial objects to the subpoena or any request therein, such objections must be filed with the Court with a showing of good cause why such objections were not previously raised and why the objections should be considered by the Court by the end of business on WEDNESDAY, OCTOBER 17, 2012. All other grounds for relief in this motion [Record No. 141] are DENIED WITHOUT PREJUDICE. *3 (2) A copy of the order shall be sent by United States Postal Service to: A. LPL Financial LLC c/o CT Corp. 306 West Main Street, Suite 512 Frankfort, KY 40601 B. Amanda C. Hawley Associate Counsel LPL Financial LLC 75 State Street, 24th Floor Boston, MA 02109.