1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 B&G FOODS NORTH AMERICA, Case No.: 24-cv-1779-AJB-MMP

INC.,

14

ORDER TRANSFERRING NON-

Plaintiff, 15 PARTY CRAIG NICHOLAS’ v. MOTION FOR PROTECTIVE 16

ORDER AND/OR TO QUASH

KIM EMBRY, and ENVIRONMENTAL 17 SUBPOENA HEALTH ADVOCATES, INC. acting as

18 enforcement representatives under [ECF No. 1] California Proposition 65 on behalf of the 19 State of California, 20 Defendant. 21 22 23 Currently pending before the Court is non-party Craig Nicholas, Esq.’s (“Nicholas”) 24 Consent to and Request to Transfer Motion for Protective Order And/or To Quash 25 Subpoena to E.D. Cal. Under Rule 45(f). [ECF No. 1.] This Court previously granted a 26 similar request on behalf of Mr. Jake Schulte to transfer a motion under Federal Rule of 27 Civil Procedure (“Rule”) 45(f) to be adjudicated by the Eastern District of California based 28 on Mr. Schulte’s consent. [S.D. Cal No. 24-cv-1778-AJB-MMP, ECF No. 2-1.] 1 Here, a Subpoena to Testify at a Deposition in a Civil Action (“Subpoena”) directed 2 to Nicholas was issued by the United States District Court for the Eastern District of 3 California, in connection with B&G Foods North America, Inc. v. Kim Embry/EHA, No. 4 20-cv-00526-KJM-DB. [ECF No. 1-2 at 5–15.] This is Plaintiff B&G Foods North 5 America’s (“B&G”) second Subpoena served on Nicholas in the underlying matter. This 6 Court previously transferred to the Eastern District Mr. Nicholas’ Motion for Protective 7 Order and/to Quash the first subpoena under Rule 45(f). [S.D. Cal. No. 23-cv-02362-AJB- 8 DDL, ECF No. 8-1.] The Eastern District subsequently quashed the first subpoena without 9 prejudice to re-serving. [ECF No. 1-2 at 20–25.] B&G then served this second Subpoena 10 to testify dated September 25, 2024 on Nicholas. [ECF No. 1-2 at 5–15.] 11 In the instant motion, Nicholas states he “consents to and requests, pursuant to Rule 12 45(f), that his entire motion be transferred to the issuing court in the underlying Action” 13 because the underlying Court “is already familiar with the issues presented in this case and 14 is better suited to resolve this motion” and to “avoid inconsistent adjudications.” [ECF No. 15 1 at 2, 3.] The accompanying declaration from his counsel attests Nicholas “consents to 16 this motion being transferred to the Eastern District of California” and B&G also consents 17 to the transfer with attached correspondence reflecting the agreement. [ECF No. 1-2 ¶¶ 3 18 – 4, Exh. D.] 19 Rule 45(f) provides “[w]hen the court where compliance is required did not issue 20 the subpoena, it may transfer a motion under this rule to the issuing court if the person 21 subject to the subpoena consents or if the court finds exceptional circumstances.” Fed. R. 22 Civ. P. 45(f). Magistrate Judges have the authority to rule on the merits of a subpoena 23 related motion or transfer the case to the issuing court. 28 U.S.C. 636(b)(1)(A); Agincourt 24 Gaming, LLC v. Zynga, Inc., No. 14-cv-0708, 2014 WL 4079555, at *1–2 (D. Nev. Aug. 25 15, 2014). Here, both Nicholas, the person subject to the subpoena, and B&G, the 26 subpoenaing party, consent to the transfer of resolution of a motion challenging the pending 27 subpoena to the Eastern District of California, the issuing court. [ECF No. 1-2 at 27–28.] 28 Thus, the Court finds transfer is appropriate under Rule 45(f) based on consent. See In re 1 || Google LLC, No. 24-MC-80009, 2024 WL 217842, at *2 (N.D. Cal. Jan. 19, 2024) (“Under 2 45(f), Google’s consent alone is sufficient for the Court to order transfer.”) (citing 3 || Mirza v. Yelp, Inc., No. 21-mc-80077, 2021 WL 2939922, at *3 (N.D. Cal. July 13, 2021) 4 ||(‘Rule 45(f) presents no bar whatsoever to the return of the matter to the Issuing Court 5 ||where . . . the nonparties subject to the subpoena consent to the transfer.’’).! 6 Based on the foregoing, the Court directs the Clerk of the Court to transfer this matter 7 || to the Eastern District of California for decision by the issuing court in the matter of B&G 8 || Foods North America, Inc. v. Kim Embry/EHA, No. 20-cv-00526- KJM-DB and terminate 9 || this case. 10 IT IS SO ORDERED. 11 Dated: October 30, 2024 “WA wl. Iy 1. Sete 12 HON. MICHELLE M. PETTIT United States Magistrate Judge 13 14 15 16 17 18 19 20 ' The Court notes although Nicholas did not file “a fully briefed motion herewith because the Eastern District requires a Joint Statement,” ECF No. | at 2, Nicholas and B&G clearly 21 contemplate and agree to have a “motion under this rule,” whether it be a protective order 99 or a motion to quash the subpoena, adjudicated by the Eastern District with Nicholas’ consent. See Fed. R. Civ. P. 45(f) (“When the court where compliance is required did not 23 issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents[.]”). Further, this Court’s Chambers Rule requires either a pre-motion conference or leave of court prior to filing a discovery motion. See Chambers 25 [X(B). Thus, the Court finds transfer of the motion under Rule 45(f) to the Eastern 26 District of California appropriate. See, e.g., Clorox Co. v. Odyssey Mfg. Co., No. 24-mc- 80096, 2024 WL 2806466, at *1 (N.D. Cal. May 31, 2024) (granting the parties’ request 27 transfer a discovery dispute regarding a subpoena to the issuing court under Rule 45(f) 28 and ordering the parties to file their joint discovery letter in the underlying case to accomplish the transfer). YQ