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Banco Popular North America v. Lausell

United States District Court, M.D. Florida, Orlando Division

May 1, 2018

BANCO POPULAR NORTH AMERICA, Plaintiff,
v.
MIGUEL D. LAUSELL, Defendant.

          ORDER

          THOMAS B. SMITH, UNITED STATES MAGISTRATE JUDGE

         In January of 2017, the United States District Court for the Southern District of New York entered default judgment for Plaintiff Banco Popular North America and against Defendant Miguel D. Lausell in the amount of $528, 382.06 (Doc. 1-1). Plaintiff registered the judgment in this Court (Doc. 1).

         Next, Plaintiff obtained a writ of garnishment directed to The Taco Maker, Inc. (Doc. 5). The Taco Maker's Florida 2018 Foreign Profit Corporation Annual Report lists Lausell as “CHRM” of the company (Doc. 10-5). Plaintiff also alleges that according to The Taco Maker's website, Lausell “was one of the original entrepreneurs that brought the brand to America in 2006.” (Doc. 10, n. 1).

         In its answer to the writ of garnishment, filed and served by its attorney, Michael Stegawitz, The Taco Maker said it did not employ Lausell and was not indebted to him for salary or wages (Doc. 9). Suspicious, Plaintiff served a subpoena, issued out of this Court, directing The Taco Maker to produce:

All correspondence, financial documents, pay stubs, agreements, or other documents relating to Miguel Lausell's employment and/or ownership interest in Taco Maker, Inc. including but not limited to stock certificates, operating agreements, and employment agreements.

(Doc. 10-1 at 1). The subpoena was served on The Taco Maker's registered agent on April 11, 2017 (Doc. 10-2). Nobody has filed an objection to the subpoena, a motion to quash it, or for the entry of a protective order precluding the discovery.[1]

         Stegawski notified Plaintiff's counsel that his firm had been engaged to assist in the preparation of The Taco Maker's response to the subpoena (Doc. 21-3 at 2). He asked for additional time, and for the entry of a protective order “to allow production of confidential information.” (Id.). Plaintiff agreed to an extension until August 9, 2017 to produce the information, and to the protective order (Doc. 10, ¶ 7). By agreement, the protective order was entered in a related case pending in the United States District Court for the District of Puerto Rico (Doc. 10-4 at 1).

         Plaintiff alleges that The Taco Maker has not produced any documents in response to the subpoena (Doc. 10, ¶ 8). Plaintiff seeks an order compelling the production, and for the taxation of its attorney's fees and costs against The Taco Maker and Stegawski, pursuant to Fed.R.Civ.P. 37(a)(5)(A) (Id.).

         After receiving Plaintiff's motion to compel, Stegawski sought leave to withdraw as counsel for The Taco Maker (Doc. 15). His motion references unspecified professional considerations which he argued, required the termination of his representation (Id., ¶ 8). The Court granted the motion (Doc. 18). However, it directed that Stegawski remain in the case as an interested party, to defend himself against Plaintiff's claim for fees and costs (Id.).

         Stegawski asserts that while representing The Taco Maker he has done nothing that was unprofessional, and he argues that Plaintiff is not entitled to recover sanctions from him (Doc. 21 at 4-6). Stegawski also contends that Plaintiff's motion is flawed because it relies on Rule 37 (Id., at 6-8). He maintains that this controversy is in fact, governed by Rule 45 (Id.). Lastly, Stegawsi argues that he is entitled to recover his fees and costs from Plaintiff (Id., at 9-10).

         The Taco Maker has adopted Stegawski's argument that this dispute is controlled by Rule 45. It also contends that it is entitled to recover its attorney's fees and costs from Plaintiff pursuant to Rule 37(a)(5)(B) (Doc. 22). Notably, The Taco Maker's new attorney states that she,

is in the process of reviewing all documents pertinent to the subpoenas issued by Petitioner under the instant case and the matter in the District of Puerto Rico, and intends to respond to the same on or before Monday, May 7, 2018. As notified to counsel for Petitioner via electronic mail, TTM is working to comply with the referenced subpoenas and resolve this matter as soon as possible.

(Id., n. 1).

         It is undisputed that Plaintiff's subpoena was properly served on The Taco Maker. The Court also finds that the information Plaintiff seeks is relevant to the satisfaction of its judgment. There are no objections to the subpoena, and a protective order has ...


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