The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HEIDI MCCLURE, :
:
Plaintiff, :
: MEMORANDUM AND ORDER
-against- :
: No. 23-CV-2415-RPK-JRC
JUDGE JACQUELINE WILLIAMS, JUDGE ROBERT :
HETTELMAN, LISA TROJNAR-YAGEL, LAQUITA :
HODGES, TAURINA CARPENTER, RASHIMA :
FERGUSON, MARIE NESTOR, DANIELLE :
BAPTISTE, JOSHUA CLARKE, ADMINISTRATION :
FOR CHILDREN’S SERVICES, POLICE OFFICER :
HILL, POLICE OFFICER REYNOLDS, 5 UNKNOWN :
KINGS COUNTY HOPSPITAL POLICE OFFICERS, :
CITY OF NEW YORK and KINGS COUNTY, :
:
Defendants. :
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JAMES R. CHO, United States Magistrate Judge:
Plaintiff Heidi McClure (“plaintiff”) commenced this action against various defendants
for actions taken in the course of a removal proceeding brought pursuant to Article X of the New
York State Family Court Act. See generally Dkt. 57 (“Am. Compl.”). Plaintiff brings claims
against the following defendants, among others: New York City Administration for Children’s
Services, the City of New York, Rashima Ferguson, Taurina Carpenter, Laquita Hodges, and
Lisa Trojnar-Yagel (collectively, “Municipal Defendants”); three employees of an organization
called Rising Grounds, defendants Marie Nestor, Danielle Baptiste and Joshua Clarke
(collectively, “Rising Grounds Defendants”); and two judges of the Kings County Family Court,
Jacqueline Williams and Robert Hettelman (collectively, “Judicial Defendants”). Plaintiff seeks
damages for the alleged wrongful removal of her minor child.
On multiple occasions, throughout this litigation, plaintiff has questioned whether
counsel for defendants have the authority to represent their respective clients, and filed motions
requesting that the Court order defendants to provide proof that defendants have authorized their
respective attorneys to act on defendants’ behalf, including the attorneys’ representation
agreements. On August 7, 2023, the Court denied plaintiff’s motions. See Mem. and Order (the
“August 2023 Order”), Dkt. 41. In denying plaintiff’s motions, the Court held that plaintiff
failed to “provide any authority for this Court’s interference in the hiring and representation
decisions made by the New York State Courts, New York City agencies or private
organizations.” August 2023 Order, Dkt. 41, at 2. The Court also found that plaintiff failed to
“provide any reasons to doubt” the attorneys’ “authority to represent their clients in this case.”
Id. at 3.
Notwithstanding the Court’s August 2023 Order, plaintiff filed a motion on November
21, 2023, requesting subpoenas in an attempt to obtain information about the defendants’
attorneys’ authority to represent defendants. See Dkt. 59. Plaintiff thereafter served subpoenas
seeking information from Jason William Imbiano (“Imbiano”) and Mark Galen Toews
(“Toews”), the attorneys with the New York City Law Department representing the Municipal
Defendants, and Alice Spitz, the attorney representing the Rising Grounds Defendants. See
Subpoenas Duces Tecum of Mark Towes and Jason Imbiano, dated December 6, 2023, Dkt. 61,
Ex. A at ECF pages1 5, 6; Subpoena Duces Tecum of Alice Spitz, dated December 28, 2023,
Dkt. 73, Ex. A at ECF pages 6–7.
In directing the subpoenas to the attorneys, plaintiff requested production of “all
documents held that evidences [sic] that your representation in the action or proceeding affecting
the property or interests of the state in Docket # 1:23-CV-02415-RPK in which you allege to
1 References to the page numbers generated by the Court’s electronic case filing system appear as “ECF page.”
represent your client(s) was instituted, defended or conducted with a notice to the attorney
general . . . .” Dkt. 59 at ECF pages 2, 3; Dkt. 73 at ECF page 7. Further, plaintiff directed
defendants’ counsel to “[p]roduce the record of all documents held that evidences [sic] that your
representation in the action . . . has been authorized by your governing body via the minutes from
the board meeting in which you were chosen to represent this case.” Id. Plaintiff served
subpoenas on Imbiano and Toews on December 7, 2023, Dkt. 61, Ex. A at ECF pages 5, 6, and
served a subpoena on Spitz on December 29, 2023, Dkt. 73, Ex. A at ECF pages 6–7. See Mot.
to Quash, Dkt. 61 at ECF pages 1–2; Mot. to Quash, Dkt. 73 at ECF pages 1–2.
The Municipal Defendants and Rising Grounds Defendants moved to quash the
subpoenas. Dkt. 61 (Municipal Defendants); Dkt. 73 (Rising Grounds Defendants). For the
reasons set forth below, the Court grants the motions to quash the subpoenas (Dkts. 61, 73), and
denies plaintiff’s motion for subpoenas (Dkt. 59).
Discussion
The Court views plaintiff’s subpoenas served on defendants’ attorneys as an
impermissible attempt at an end-run around the Court’s August 2023 Order (Dkt. 41) denying
her request that defendants’ attorneys produce information regarding their authority to represent
their respective clients. For this reason alone, the Court grants the motions to quash the
subpoenas. Even if the Court were to address the other issues raised in the motions to quash, the
Court still would grant the motions to quash for the reasons set forth below.
First, the subpoenas served on attorneys for the Municipal Defendants failed to provide
them with sufficient time to respond. See Dkt. 61, Ex. A at ECF pages 5, 6 (subpoenas dated
12/6/2023 requested response by 12/7/2023); Fed. R. Civ. P. 45(d)(3)(A)(i) (a subpoena must be
quashed if it fails to allow for a reasonable time to comply).
Second, information regarding the authority of counsel to represent the Municipal
Defendants or the Rising Grounds Defendants is not relevant to the claims or defenses in this
action. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the
case . . . .” (emphasis added)); Chen v. SS&C Techs., Inc., No. 22-CV-02190, 2023 WL 2387112,
at *3 (S.D.N.Y. Mar. 7, 2023) (“On a motion to quash, [t]he party issuing the subpoena must
demonstrate that the information sought is relevant and material to the allegations and claims at
issue in the proceedings.” (alternation in original) (internal quotation marks and citation
omitted)).
Third, as it relates to the Municipal Defendants, their counsel has advised the Court that
the Office of the Corporation Counsel is authorized to represent the Municipal Defendants
(citing New York City Charter § 394). See Mot. to Quash, Dkt. 61 at ECF pages 2–3. Plaintiff
has offered no argument that causes the Court to question that Toews and Imbiano are authorized
to represent the Municipal Defendants.
As it relates to the Rising Grounds Defendants, those defendants “do not work for the
City or the State of New York” and their legal representation is not connected to the “attorney
general” or any “governing body” or “governing agency.” Mot. to Quash, Dkt. 73 at ECF
page 3. As the Court previously held in its August 2023 Order, the Court has no reason to
interfere with private organizations’ choice of counsel. See August 2023 Order, Dkt. 41, at 2.
Finally, to the extent plaintiff seeks communications between the client defendants and
counsel for the purposes of providing legal advice and information relating to the attorneys’
representation of these defendants, even if relevant, these communications are protected by the
attorney-client privilege. See Fed. R. Civ. P. 26(b)(1).
Conclusion
For the reasons set forth above, the Court grants the motions to quash (Dkts. 61, 73) and
denies plaintiff’s motion for subpoenas (Dkt. 59).2
The Clerk’s Office is directed to mail a copy of this Order to the plaintiff.
SO ORDERED
Dated: Brooklyn, New York
September 25, 2024
s/ James R. Cho
James R. Cho
United States Magistrate Judge
2 To the extent plaintiff sought to subpoena Steven Adam Sutro (“Sutro”) regarding his representation of the Judicial
Defendants, Dkt. 59, the Court denies plaintiff’s motion as it relates to Sutro as moot. The Court granted Sutro’s
withdrawal from this action on July 24, 2024, and he no longer represents the Judicial Defendants. See Dkt. 105;
Order dated July 24, 2024.