Forchielli v. Forchielli
Forchielli v. Forchielli
2023 WL 7170650 (E.D. Mich. 2023)
June 16, 2023
Altman, Kimberly G., United States Magistrate Judge
Summary
The court denied Paolo's motion to quash various third-party subpoenas seeking documents related to the couple's child, real estate transactions, employment files, and financial information from non-party financial institutions. The court found that the subpoenas were relevant to Vivian's claim and that Paolo had not met the heavy burden of proof necessary to quash the subpoenas.
Vivian FORCHIELLI, Plaintiff,
v.
Paolo FORCHIELLI, Defendant
v.
Paolo FORCHIELLI, Defendant
Case No. 2:22-cv-12824
United States District Court, E.D. Michigan, Southern Division
Signed June 16, 2023
Counsel
Marcus S. Evangelista, Marcus S. Evangelista, P.C. Legal Department, West Bloomfield, MI, for Plaintiff.Michael S. Linardos, Huntington Woods, MI, for Defendant.
Altman, Kimberly G., United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION TO QUASH SUBPOENAS AND FOR PROTECTIVE ORDER (ECF No. 14)[1]
I. Introduction
*1 This is an action for immigration financial support under 8 U.S.C. § 1183a. Vivian Forchielli (Vivian) is suing her ex-husband Paolo Forchielli (Paolo)[2] for financial support under the Affidavit of Support he submitted to the federal government when Vivian immigrated to the United States. See ECF No. 7.
Before the Court is Paolo's motion to quash various third-party subpoenas and for a protective order. (ECF No. 14). This motion was referred to the undersigned, (ECF No. 15), and is fully briefed, (ECF Nos. 17, 19).[3] For the reasons stated below, the motion will be DENIED.
II. Background
Vivian and Paolo divorced after an eight-year-long marriage. (ECF No. 7, PageID.82). Vivian is a citizen of Brazil and Paolo is a citizen of both Italy and the United States. (Id.). The couple lived in various countries throughout their relationship including Brazil, Italy, the Netherlands, and the United States. (Id.). Their minor child was born in the Netherlands, and the couple lived there until 2017, at which point Paolo decided to move the family to the United States. (Id.).
Paolo sponsored Vivian's immigration to the United States. (Id., PageID.81-82). As part of the sponsorship process, Paolo signed an Affidavit of Support Form I-864 promising to financially support Vivian. (Id., PageID.80-82). After residing in Michigan for 180 days, Paolo left his family and filed for divorce. (Id., PageID.83). Vivian was a housewife and stay-at-home mother for the entirety of the couple's marriage and relied on Paolo for financial support. (Id.).
The focal point of this case is the Affidavit of Support Form I-864 that Paolo signed. One district court has explained the purpose of the form as follows:
Under 8 U.S.C. § 1183a, immigrants who are likely to become a public charge are ineligible for admission into the United States unless their applications for admission are accompanied by an Affidavit of Support Form I–864. A person petitioning for the admission of a family-sponsored immigrant must sign a Form I–864 affidavit, which is a legally enforceable contract between the sponsor and the sponsored immigrant. By signing the affidavit, the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable. 8 U.S.C. § 1183a(a)(1)(A).
Nasir v. Shah, No. 2:10–cv–01003, 2013 WL 3085208, at *2 (S.D. Ohio June 18, 2013). “The statute and the applicable regulation define the scope of the sponsors’ obligations, including the relevant terminating events.” Belevich v. Thomas, 17 F.4th 1048, 1051 (11th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 2754, 213 L.Ed.2d 998 (2022). “The sponsor's obligation under the affidavit does not terminate in the event of divorce.” Younis v. Farooqi, 597 F. Supp. 2d 552, 554 (D. Md. 2009); see also Belevich, 17 F.4th at 1052 (“The I-864 affidavit, which both sponsors executed, repeats [8 C.F.R. § 213a.2(e)(2)(i)’s] terminating events and expressly notes that divorce is not a terminating event.”).
*2 Vivian claims that following their divorce, Paolo has failed to adequately support her as contractually obligated. See ECF No. 7. She filed the complaint on November 21, 2022, (ECF No. 1), and an amended complaint on December 28, 2022, (ECF No. 7). In the course of the litigation, Vivian subpoenaed the following 15 entities seeking to obtain documents in support of her claim:
• ABN-AMRO
• TESLA INTERNATIONAL
• TESLA MOTORS NETHERLANDS B.V.
• PRIMARY CAPITAL MORTGAGE, LLC
• PRIMARY TITLE AGENCY LLC
• CAPITAL TITLE INSURANCE AGENCY
• EQUITY TITLE AGENCY, LLC
• LUXURY MORTGAGE CORPORATION
• VALVOLINE, INC.
• ACCENTURE
• E*TRADE
• DCU DIGITCAL FEDERAL CREDIT UNION BANK
• PIERCE ELEMENTARY
• SCOTCH ELEMENTARY
• WEST BLOOMFIELD SCHOOL DISTRICT
Paolo says that these subpoenas are “seeking school records of [the couple's] child, all records pertaining to 2018 real estate transactions approved by the entry of consent judgment [of divorce] between the parties, employment files from current and former employers, and financial information from non-party financial institutions.” (ECF No. 14, PageID.219).
III. Legal Standards
A. Motion to Quash
Under Federal Rule of Civil Procedure 45(a), “a party may serve a subpoena on a non-party ... commanding that party to ‘attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises’ at a specified time and place.” Atlantech, Inc. v. Am. Panel Corp., No. 11–50076, 2011 WL 2078222, at *2 (E.D. Mich. May 24, 2011); see also Fed. R. Civ. P. 34(c) (“As provided in Rule 45, a non-party may be compelled to produce documents and tangible things or to permit an inspection.”). A court must quash a subpoena if it (1) fails to give the party a reasonable time to comply or requires compliance beyond the applicable geographic limits, (2) requires the disclosure of either privileged or other protected matter in the absence of an applicable exception or waiver, or (3) would be unduly burdensome. Fed. R. Civ. P. 45(c)(3)(A); see also Atlantech, Inc., at *2. A court may quash or modify a subpoena if it requires the disclosure of (1) “a trade secret or other confidential research, development, or commercial information” or (2) “an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.” Fed. R. Civ. P. 45(c)(3)(B); see also Atlantech, Inc., at *2. “The party seeking to quash a subpoena bears the burden of demonstrating that the discovery sought should not be permitted.” Atlantech, Inc., at *2.
“Ordinarily, a party has no standing to oppose a subpoena issued to a non-party unless the party can demonstrate a claim of privilege or personal right in the documents sought.” Malibu Media, LLC v. Doe subscriber assigned IP address 76.190.140.193, No. 1:15 CV 1342, 2015 WL 6758219, at *2 (N.D. Ohio Nov. 5, 2015). “Such rights or privileges have been recognized with respect to personal bank records, information in a personnel file, corporate bank records or Indian tribal records.” Pictsweet Co. v. R.D. Offutt Co., No. 3:19-cv-0722, 2020 WL 12968432, at *3 (M.D. Tenn. Apr. 23, 2020). However, “[t]hat documents are confidential is not in itself grounds for quashing a subpoena.” Id. (internal quotation marks and citations omitted). Additionally, “the party seeking to quash a third-party subpoena must meet a heavy burden of proof.” Proto Gage, Inc. v. Fed. Ins. Co., No. 21-12286, 2022 WL 1598621, at *2 (E.D. Mich. May 19, 2022).
B. Motion for a Protective Order
*3 “Even in the absence of standing to move to quash, courts within the Sixth Circuit have interpreted Rule 26(c) to permit a party to seek a protective order to preclude discovery demanded by a third-party subpoena.” Pictsweet Co., at *3; see also Bridgestone Ams., Inc. v. Intn'l Business Machs. Corp., No. 3:13-cv-1196, 2016 WL 11786198, at *5 (M.D. Tenn. May 16, 2016) (“Where discovery is requested from a third party and the information sought affects a litigant's interests, the litigant may seek a protective order on behalf of the third party.”). “A subpoena to a third party under Rule 45 is subject to the same discovery limitations as those set out in Rule 26.” State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 315 F.R.D. 220, 222 (E.D. Mich. 2016).
“Under Federal Rule of Civil Procedure 26(c)(1), a district court may grant a protective order preventing the production of discovery to protect a party or entity from ‘annoyance, embarrassment, oppression, or undue burden or expense.’ ” In re Ohio Execution Protocol Litig., 845 F.3d 231, 235 (6th Cir. 2016). Additionally, a district court is tasked with balancing “the right to discovery with the need to prevent fishing expeditions.” Id. at 236-237 (internal quotation marks and citation omitted).
“To sustain a protective order under Rule 26(c), the moving party must show good cause for protection from one (or more) harms identified in Rule 26(c)(1)(A) with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Id. at 236 (internal quotation marks and citation omitted). “Good cause exists if specific prejudice or harm will result from the absence of a protective order.” Id. (internal quotation marks and citation omitted); see also Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001) (“To show good cause, a movant for a protective order must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and cannot rely on mere conclusory statements.”).
IV. Discussion
As an initial matter, Paolo did not submit the disputed subpoenas with his motion, which is a requirement for a discovery motion under Eastern District of Michigan Local Rule 37.2.[4] His general descriptions of the types of information requested by the subpoenas are inadequate. As explained by another magistrate judge in this district, when a moving party fails to attach the relevant subpoena to its motion or “recite verbatim the substance of the subpoena,” and instead relies on “a general description of the information requested by the subpoena,” the Court is unable to rule on the motion. Davis v. Cnty. of Gladwin, No. 08–CV–14552–DT, 2009 WL 929004, at *2 (E.D. Mich. Apr. 3, 2009). Accordingly, the motion is subject to being denied on this ground alone.
Additionally, based on the information presently before the Court, Paolo's motion fails on the merits. Paolo's arguments mostly pertain to the underlying issue in the case, which is whether Vivian is entitled to financial support in excess of 125% of the federal poverty level. This issue cannot be resolved in a pretrial discovery motion, particularly because the undersigned has only been referred the instant motion. See Proto Gage, Inc., 2022 WL 1598621, at *4 (“Moreover, if the undersigned agreed that Plaintiff has a personal right to speedy appraisal, then the undersigned would decide the merits of this case. This matter is only referred to the undersigned for this particular discovery motion.”).
*4 Paolo also broadly asserts that the subpoenas seek information that “is overbroad and not relevant to the issue at hand.” (ECF No. 14, PageID.223). He further says that the subpoenas are “a rehash of disclosures and discovery previously provided in state court; irrelevant; designed to harass; embarrass; not proportional to the needs of the case; nor necessary for the resolution of the issues.” (Id., PageID.217).
Paolo does not provide concrete examples to support his assertions. Instead, he “improperly relies on conclusory statements[,]” and by doing so “fails to establish good cause for a protective order.” Drips Holdings, LLC v. Teledrip LLC, No. 5:19-CV-02789-JRA, 2021 WL 8342860, at *7 (N.D. Ohio Apr. 15, 2021); see also Underwood v. Riverview of Ann Arbor, No. 08–CV–11024–DT, 2008 WL 5235992, at *3 (E.D. Mich. Dec. 15, 2008) (“The speculative and conclusory nature of Defendant's alleged potential injury counsels this court against granting the protective order as it relates to Plaintiff's subpoena to the [nonparty].”).
Moreover, to the extent that Paolo's concerns are for the potential burden on the subpoenaed entities, these generalized concerns are insufficient to prevail on a motion to quash. As another court has observed, “[r]egrettably, third parties are frequently brought into litigation for which they want no part.” Drips Holdings, LLC, at *9. Thus, unspecific concerns related to the involvement of third parties in this case are not grounds for quashing the subpoenas at issue.
In sum, Paolo's motion will be denied because he has failed to provide the Court with the text of the subpoenas at issue, failed to undertake any detailed analysis explaining how the subpoenas violate the discovery limitations provided in the relevant Federal Rules, and failed to meet the heavy burden of proof required to quash a third-party subpoena.
V. Conclusion
For the reasons stated above, the Court DENIES Paolo's motion to quash subpoenas and for a protective order. (ECF No. 14). The following entities must fully comply with the terms of the previously issued subpoenas within 21 days of entry of this order:[5]
• ABN-AMRO
• TESLA INTERNATIONAL
• TESLA MOTORS NETHERLANDS B.V.
• PRIMARY CAPITAL MORTGAGE, LLC
• PRIMARY TITLE AGENCY LLC
• CAPITAL TITLE INSURANCE AGENCY
• EQUITY TITLE AGENCY, LLC
• LUXURY MORTGAGE CORPORATION
• VALVOLINE, INC.
• ACCENTURE
• E*TRADE
• DCU DIGITCAL FEDERAL CREDIT UNION BANK
• PIERCE ELEMENTARY
• SCOTCH ELEMENTARY
• WEST BLOOMFIELD SCHOOL DISTRICT
SO ORDERED.
Footnotes
Upon review of the motion, the undersigned deemed this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2). A notice of determination without oral argument was entered on May 18, 2023. (ECF No. 18).
The parties will be referred to by their first names because they share the same last name.
The parties submitted a joint statement of resolved and unresolved issues in which they stated that they had been unable to resolve any issues presented in the motion. (ECF No. 20).
“Any discovery motion filed pursuant to Fed. R. Civ. P. 26 through 37, shall include, in the motion itself or in an attached memorandum, a verbatim recitation of each interrogatory, request, answer, response, and objection which is the subject of the motion or a copy of the actual discovery document which is the subject of the motion.” E.D. Mich. LR 37.2.
Nothing in this order should be construed as affecting the rights of an entity to file its own motion to quash under Fed. R. Civ. P. 45(c)(3).