In re Subpoena 317 Labs, Inc.
In re Subpoena 317 Labs, Inc.
2024 WL 5265446 (C.D. Cal. 2024)
October 25, 2024

Rocconi, Margo A.,  United States Magistrate Judge

Stored Communications Act
Third Party Subpoena
Cloud Computing
Text Messages
Failure to Produce
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Summary
The plaintiff filed an Ex Parte Application for Order to Show Cause re: Contempt against a text message marketing company for failing to comply with a subpoena duces tecum. The court granted the motion and ordered the company to appear and show cause for their failure to comply. The plaintiff had previously obtained email headers from Google LLC, but due to the Stored Communications Act, was unable to obtain the content of the emails.
Additional Decisions
In Re Subpoe na 317 Labs, Inc
Case No. 2:24-mc-00079-FLA-MAR
United States District Court, C.D. California
Filed October 25, 2024
Rocconi, Margo A., United States Magistrate Judge

Proceedings: (In Chambers) ORDER RE: PLAINTIFF'S EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE, DKT. 11

*1 On October 18, 2024, Alwina Fykes (“Plaintiff”) filed an Ex Parte Application for Order to Show Cause re: Contempt (“EPA”). ECF Docket No. (“Dkt.”) 11. The Court finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. For the reasons set forth below, Plaintiff's Motion is GRANTED.
I.
BACKGROUND
The Court summarized the factual background in its previous order:
Plaintiff ... has filed a motion to compel non-party 317 Labs, Inc. d/b/a Emotive (“Emotive”) to comply with a subpoena duces tecum. [Dkt.] 1. Plaintiff is the named plaintiff in the underlying class action in the Western District of North Carolina, which alleges that Defendants Hallelujah Acres, Inc. and Does 1 to 10 (collectively, “Defendants”) violated the Telephone Consumer Protection Act (47 U.S.C. § 227) (“TCPA”) and analogous North Carolina telemarketing laws via text messages sent to Plaintiff personal cellular telephone number in June 2022. Dkt. 1-1 at 2; Declaration of Ethan Preston (“Preston Decl.”) ¶ 2. The originating court entered a default against Defendants, and permitted Plaintiff to take limited post-default discovery to prepare for class certification and class damages. Id. ¶ 3.
Plaintiff ultimately took discovery from Google LLC, which provided email service to Defendants. Id.. ¶¶ 3–4. Google produced email headers showing extensive communications between Defendants and Emotive, a text message marketing company. Id. ¶ 4. Plaintiff believes it is likely that Defendants' communications with Emotive will provide or help locate evidence supporting class certification. Id. ¶ 5. While Plaintiff was able to obtain email headers from Google, the Stored Communications Act (“SCA”) 18 U.S.C. § 2701, et seq. prevented Plaintiff from obtaining the content of those emails; Plaintiff also suspects there may be communications between Defendants and Emotive through other channels. Id. ¶ 4.
On February 28, 2024, Plaintiff served a subpoena on Emotive for various documents, including all documents concerning communications with Defendants, and call records for text messages sent on Defendants' behalf; the subpoena set a production deadline of March 14, 2024. Id. ¶ 6, Ex. 2. Emotive never responded in any way to February 2024 subpoena. Id.
On March 21, 2024, Plaintiff emailed legal@emotive.io to follow up with Emotive on the subpoena. Id. ¶ 7. Plaintiff never received a substantive response or any automatic response indicating that the Plaintiff's email had not been delivered. Id. On May 14, 2024, Plaintiff mailed and emailed a letter requesting that Emotive meet and confer with Plaintiff under Local Rule 37-1. Id. ¶ 7, Ex. 3. Again, Plaintiff never received a substantive response or any automatic response indicating that the Plaintiff's email had not been delivered. Id. ¶ 7.
Dkt. 9 at 1–2.
Accordingly, on June 26, 2024, Defendant filed a motion to compel in this Court. Dkt. 1. The Court issued a briefing schedule and ordered Plaintiff to serve the order on Emotive and file a proof of service. Dkt. 4. Plaintiff failed to file a proof of service, and therefore the Court issued an order to show cause why the motion should not be dismissed. Dkt. 5. On August 13, 2024, Plaintiff filed a response indicating that they did not receive the Court's scheduling order; accordingly, the Court discharged the order to show cause. Dkts. 6–7. Plaintiff filed a proof of service on August 19, 2024. Dkt. 8.
*2 On September 24, 2024, the Court granted Plaintiff's motion to compel, ordering Plaintiff to serve a copy of the order and subpoena within seven days and Emotive to comply within fourteen days. Dkt. 9. Plaintiff filed a proof of service on September 30, 2024. Dkt. 10.
On October 18, 2024, Plaintiff filed the instant EPA, asking the Court to issue an order to show cause why Emotive should not be held in contempt. Emotive has yet to file a response. Accordingly, the EPA stands submitted.
II.
APPLICABLE LAW
Rule 45 of the Federal Rules of Civil Procedure governs the issuing and service of subpoenas on nonparties. Fed. R. Civ. P. 45. Rule 45(b)(1) provides that “[s]erving a subpoena requires delivering a copy to the named person.” Id. Though the Ninth Circuit has not ruled on the question, most courts understand Rule 45(b) to require personal service. See, In re Subpoena to VaughnPerling, No. 2:19-MC-00083-CAS (EX), 2019 WL 8012372, at *3 (C.D. Cal. Dec. 2, 2019); see also Fujikura Ltd. v. Finisar Corp., No. 15-mc-80110-HRL-JSC, 2015 WL 5782351, at *5 (N.D. Cal. Oct. 5, 2015) (collecting cases).
To be enforceable, the subpoena must comply with the substantive requirements for a subpoena set out by Rule 45. Fed. R. Civ. P. 45(a)(1)(A). Rule 45(a)(1)(A) requires that every subpoena state the court from which it is issued, state the title of the action and its civil-action number, specify to each person to whom it is directed the time and place set for the production, and set out the text of Rule 45(d) and (e). Fed. R. Civ. P. 45(a)(1)(A)(i)–(iv).
The recipient of a Rule 45 subpoena has several options: he or she may elect to comply with the subpoena, move to quash the subpoena based on undue cost or burden, object to the subpoena's form, or challenge the subpoena pursuant to the procedures set forth in Rule 45. Fed. R. Civ. P. 45(d), (e); see also Glodney v. Travelers Com. Ins. Co., No. 2:19-CV-10503-GW-MAA, 2020 WL 8414988, at *16 (C.D. Cal. Sept. 30, 2020). If the recipient responds to a subpoena with objections, the party who served the subpoena may move for an order compelling compliance. See Fed. R. Civ. P. 45(d)(2)-(3). However, if the recipient does not respond to the subpoena, the only relief available to the serving party is to seek a contempt sanction under Rule 45(g) via an application for an order to show cause. Delis v. Sionix Corp., No. SACV 131547-AG-RNBX, 2014 WL 12603094, at *1 (C.D. Cal. Sept. 30, 2014) (“[T]he only sanction available where a non-party witness fails without adequate excuse to obey a properly-served subpoena is a contempt citation.”); see also Echostar Satellite L.L.C. v. Viewtech, Inc., No. 1:09MC00052-SMS, 2010 WL 653186, at *1 (E.D. Cal. Feb. 22, 2010) (“If the recipient fails or refuses to respond to the subpoena, the proponent may first try to negotiate compliance, as by offering to meet and confer, but ultimately, if the recipient fails to comply without adequate excuse, the recipient is in contempt of court, and the proponent must file an application for an order to show cause why a contempt citation should not issue.”).
Finally, absent consent by the parties, magistrate judges lack contempt authority except in limited circumstances, none of which are applicable here. See 28 U.S.C. § 636(e); Bingman v. Ward, 100 F.3d 653, 656-57 (9th Cir. 1996). Absent consent, a magistrate judge may only investigate whether further contempt proceedings are warranted and, if so, “certify” such facts to a district judge. 28 U.S.C. § 636(e)(6); see also C.D. Cal. Gen. Order 05-07; Aguilar v. City of Azusa, No. CV14-9183-GW (JPRX), 2016 WL 11755112 (C.D. Cal. Jan. 5, 2016).
*3 Specifically:
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.
28 U.S.C. § 636(e)(6). Essentially, the magistrate judge's role is to determine whether the movant has established a prima facie case of contempt—i.e., whether the movant has shown by clear and convincing evidence that the party or nonparty has violated a court order. See Aguilar, 2016 WL 11755112 at *2; In re Dyer, 322 F.3d 1178, 1190-91 (9th Cir. 2003) (noting that, to find a party in civil contempt, the moving party must show “by clear and convincing evidence that the contemnors violated a specific and definite order of the court.”).
III.
DISCUSSION
Plaintiff has established a prima facie case of contempt by clear and convincing evidence. Emotive was served with the subpoena four times. Dkt. 1-2 (proof of service showing Emotive was served with subpoena on February 28, 2024); Dkt. 3 (June 27, 2024); Dkt. 8 (August 19, 2024); Dkt. 10 (September 26, 2024). As the Court noted in its prior order, the subpoena appears to have complied with applicable procedural requirements: (1) the subpoena states the court from which it is issued; (2) the subpoena states the title of the action and its civil-action number; (3) the subpoena specifies to each person to whom it is directed the time and place set for the production; and (4) the subpoena sets out the text of Rule 45(d) and (e). Preston Decl. ¶ 6, Ex. 2; Dkt. 9 at 3–4; see Fed. R. Civ. P. 45(a)(1)(A)(i)–(iv). Emotive apparently did not respond to the subpoena, object in writing to Plaintiff, move to quash the subpoena, or otherwise seek relief from the Court.
Accordingly, it appears that Emotive has disobeyed the Court's order granting Plaintiff's motion to compel. Despite being served with the Motion and given an opportunity to respond, Emotive has failed to excuse its disobedience. The undersigned certifies these facts and finds that Plaintiff has met their burden to establish a prima facie case of contempt.
IV.
ORDER
Accordingly, Emotive is ORDERED to appear on November 22, 2024 at 1:30 p.m. in the Courtroom of the Honorable Fernando Aenlle-Rocha, U.S. District Judge, First Street Courthouse, 350 W. 1st Street, Courtroom 6B, 6th Floor, Los Angeles, California 90012, to show cause why he should not be adjudged in contempt by reason of the facts certified in this order. Plaintiff is directed to serve this order on Emotive at its last known address no later than three days from the date of this order; they must file proof of service with the Court within twenty-four hours. Plaintiff shall personally serve the order if at all possible.
*4 IT IS SO ORDERED.