Manufacturers Alliance Insurance Company v. Baker

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MANUFACTURERS ALLIANCE )

INSURANCE COMPANY; )

)

Plaintiff, )

)

)

v. ) Case No. CIV-23-1007-SLP

)

JIMMY C. BAKER; )

CYNTHIA BAKER; and )

INSGROUP, INC., )

)

Defendants. )

O R D E R

Before the Court are two related Motions: (1) a Motion to Quash and Motion for

Protective Order filed by Non-Party Aquino Logistics, LLC [Doc. No. 29]; and (2)

Defendants Jimmy C. Baker and Cynthia Baker’s Motion to Compel, Sanction, and/or Hold

Aquino Logistics LLC in Contempt of Court [Doc. No. 35], along with their Brief in

Support [Doc. No. 36].1 Aquino filed a “Reply” (i.e., response) to the Bakers’ Motion to

Compel [Doc. No. 37], and the Bakers filed a Reply [Doc. No. 38] in support of their

Motion. The matter is fully briefed and ready for determination.

I. Background

Plaintiff, Manufacturers Alliance Insurance Company, filed this action seeking a

declaratory judgment regarding coverage under a commercial automobile insurance policy

1 The Bakers filed their substantive arguments twice: once as a Response to Aquino’s motion, see

[Doc. No. 34], and again as their Brief in Support [Doc. No. 36]. For ease of reference, and because

they are duplicative, the Court cites to the Brief in Support [Doc. No. 36].

it issued to Aquino in connection with an underlying state court action filed by the Bakers.

The underlying action centered on an automobile collision between the Bakers and an

Aquino delivery van driver. The Bakers entered into a settlement agreement with Aquino

in the state court action whereby Aquino assigned any claim for coverage under the

Manufacturers Alliance policy to the Bakers.2

As fully explained in prior Orders, [Doc. Nos. 31, 32], the Bakers allege Aquino

was a “Delivery Service Partner” with nonparty Amazon, which was a program where

companies could obtain discounted rental vehicles for deliveries. As part of that program,

Manufacturers Alliance sold automobile insurance policies through “producers” such as

Defendant InsGroup, Inc., including the one it issued to Aquino. As set forth in the Court’s

prior Order [Doc. No. 32], the policy Manufacturers Alliance issued to Aquino covered

2 Although not briefed or otherwise developed by any party, counsel for the Bakers stated in the

Joint Status Report that the Court “may lack subject matter jurisdiction as a result of 28 U.S.C. §

1332(c)(1)(A).” [Doc. No. 42] at 2. That subsection provides, in pertinent part: “in any direct

action against the insurer of a policy or contract of liability insurance, whether incorporated or

unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall

be deemed a citizen of . . . every State and foreign state of which the insured is a citizen. . .” 28

U.S.C. § 1332(c)(1)(A). That subsection has no application here, therefore the ordinary principles

of diversity jurisdiction apply, and the Court has subject matter jurisdiction. See Northbrook Nat.

Ins. Co. v. Brewer, 493 U.S. 6, 9 (1989) (“The language of [§1332(c)(1)(A)] could not be more

clear. It applies only to actions against insurers; it does not mention actions by insurers.”); Gateway

Residences at Exch., LLC v. Illinois Union Ins. Co., 917 F.3d 269, 272 (4th Cir. 2019) (“[T]he

unanimous understanding of our sister circuits has been that ‘direct action’ as used in § 1332(c)

has a much narrower meaning. . . [I]t refers to a suit in which the plaintiff sues a wrongdoer’s

liability insurer without joining or first obtaining a judgment against the insured.” (collecting

cases)); Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1188 (5th Cir. 1988) (“Such an action is

not one by an insured against his own carrier to resolve coverage issues, and it is not one brought

by the carrier itself to resolve coverage or other issues, regardless of the defendant.”).

only “scheduled” automobiles, meaning those listed on the policy. See id. at 6-7.3

Aquino rented the delivery van involved in the accident with the Bakers through

nonparty Avis Budget. To rent a vehicle, Avis Budget required Aquino to provide proof

of insurance covering “any auto,” “hired autos,” or “non-owned autos,” and proof of

coverage for “all vehicles leased, rented, or supplied as a substitute or as an additional

vehicle to the Named Insured.” In April of 2020, InsGroup provided a Certificate of

Insurance to Avis Budget that wrongly stated the policy issued by Manufacturers Alliance

to Aquino covered rented vehicles like the one involved in the accident with the Bakers,

when in fact such vehicles were instead covered under Aquino’s policy with nonparty Old

Republic Union Insurance Company. That misstatement on the Certificate of Insurance is

the focus of the Bakers’ counterclaims.

The Bakers originally asserted counterclaims against Manufacturers Alliance for

breach of contract, equitable estoppel, reformation, a declaratory judgment, and potentially

“deceptive and unfair acts or practices.” See Ans. [Doc. No. 17] at 18-19. The Court

granted Manufacturers Alliance’s Motion to Dismiss the Bakers’ breach of contract claim

because its policy only covered “scheduled” vehicles owned by Aquino, which did not

include the rental vehicle involved in the accident with the Bakers, and they were unable

to show otherwise. See [Doc. No. 32] at 6-8. However, the Court denied Manufacturers

Alliance’s request to dismiss the equitable estoppel claim, finding the Bakers “alleged

3 Aquino had another insurance policy with nonparty Old Republic Union Insurance Company that

covered “hired and non-owned autos” like a rental vehicle. See Order [Doc. No. 31] at 2. Old

Republic provided coverage for the accident involving the Bakers and has paid them pursuant to

the settlement agreement in the state court action. Id. at 2-4.

sufficient facts to support a plausible claim for equitable estoppel.” Id. at 9-12.

While the Motions to Dismiss were pending, the Bakers issued their Subpoenas

Duces Tecum to Aquino and its owner, Scott Aquino. [Doc. Nos. 36-1, 36-2].4 In the

Subpoenas, the Bakers seek production of three categories of documents which can be

summarized as follows:

1. Emails, texts, Amazon Delivery Service Partner Portal Messages, and any other

digital communication between Aquino and Amazon, Avis Budget, or any

insurance company, adjuster, agent, or producer regarding Aquino getting

insurance in 2019 and 2020 as a Delivery Service Partner;

2. Aquino’s applications for automobile insurance in 2019 in connection with the

Amazon Delivery Service Partner program;

3. Emails, texts, Amazon Delivery Service Partner Portal Messages, and any other

digital communication between Aquino and Amazon, Avis Budget, or any

insurance company, adjuster, agent, or producer regarding the Certificates of

Insurance, the Baker collision on May 25, 2020, and claims, demands, coverage

letters, and reservation of rights letters.

See [Doc. Nos. 36-1, 36-2]. On the date production was due, Aquino filed its Motion to

Quash [Doc. No. 29].5 Although somewhat difficult to discern, Aquino appears to initially

state it produced all the documents it has in the underlying state court action, and any

additional discovery would be unduly burdensome or expensive. See [Doc. No. 29].

According to the Bakers, two weeks later, Aquino’s counsel produced a “document

4 The Bakers failed to file their Subpoenas in compliance with LCvR45.1(a), but Aquino raises no

issue regarding the timing of the Subpoenas. Nor did Aquino object to the Bakers’ violation of

LCvR26.3(a), which provides: “if a motion has been made pursuant to Fed. R Civ. P. 12(b), no

party may seek discovery from any source before that motion has been decided and all moving

parties have filed an answer or been dismissed from the case.”

5 The Court refers to Aquino Logistics, LLC and Scott Aquino collectively, as the parties do not

distinguish between the two in their briefing.

dump” of nonresponsive documents. See [Doc. No. 36] at 5. The Bakers summarize

categories of nonresponsive documents, including: (1) insurance policies that do not

involve Manufacturers Alliance and where Amazon (not Aquino) is the named insured; (2)

title documents and rental agreements for the subject vehicle; and (3) insurance documents

regarding coverage for years after the Bakers’ accident. [Doc. No. 36] at 5-7. The Bakers

maintain Aquino still failed to produce any documents responsive to the three categories

summarized above. Id. at 7-8. They further contend Aquino has failed to submit evidence

in the form of an affidavit or other proof showing the discovery sought is unduly

burdensome. See [Doc. No. 36] at 9-11; see also [Doc. No. 38] at 1-9.

II. Governing Standard

A subpoena may command “each person to whom it is directed to . . . produce

designated documents, electronically stored information, or tangible things in that person’s

possession, custody, or control. . .” Fed. R. Civ. P. 45(a)(1)(A)(iii). It is well-settled “that

the scope of discovery under a [Rule 45] subpoena is the same as the scope of discovery

under Rule 26(b)[.]” Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter of

Haverstraw, Inc., 211 F.R.D. 658, 662 (D. Kan. 2003); Shutrump v. Safeco Ins. Co. of Am.,

No. 17-CV-0022-CVE-TLW, 2017 WL 3579211, at *1 (N.D. Okla. Aug. 18, 2017) (same).

A court may quash or modify a subpoena if it “subjects a person to undue burden.”

Fed. R. Civ. P. 45(d)(3). The question of undue burden “is a case specific inquiry that turns

on ‘such factors as relevance, the need of the party for the documents, the breadth of the

document request, the time period covered by it, the particularity with which the documents

are described and the burden imposed.’” Goodyear Tire, 211 F.R.D. at 662 (quoting

Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y.1996)). “The burden

is on the moving party to establish grounds for quashing a subpoena.” Shutrump, 2017

WL 3579211, at *1; see also Morales v. E.D. Etnyre & Co., 228 F.R.D. 694, 696 (D.N.M.

2005) (“The party seeking a protective order or moving to quash a subpoena has the burden

to demonstrate good cause and/or the privilege to be protected.”).

III. Discussion

In response to the Bakers’ Motion, Aquino primarily asserts any communications it

had with Amazon were performed through the “Amazon Delivery Service Partner Portal,”

therefore the documents requested in the first and third categories of the Subpoenas are not

within Aquino’s possession, custody, or control. [Doc. No. 37] at 2-5. As the Bakers point

out, however, the requests are broader than just communications in the Amazon Portal, and

Aquino offers no explanation regarding a significant portion of the documents requested:

emails and text messages with Avis Budget, Manufacturers Alliance, InsGroup, or other

related actors. In support of their argument that Aquino has responsive documents outside

the Amazon Portal, the Bakers attach an example of an email chain between Mr. Aquino

and representatives if InsGroup and Avis Budget. See [Doc. No. 38-1].

Aquino has not, in any way, met its burden to show it would be unduly burdensome

to produce emails, texts, or other digital communications outside the Amazon Portal. See

United States v. Childs, No. CR-09-146-D, 2018 WL 775018, at *3 (W.D. Okla. Feb. 7,

2018) (Generally, “the party seeking a protective order based on undue burden or expense

must submit affidavits or other detailed explanation as to the nature and extent of the

claimed burden or expense.” (quoting Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D. 533,

537 (D. Kan. 2003))). Nor does Aquino expressly state that it does not have such

documents outside the Amazon Portal. See [Doc. No. 37] at 2-7. Accordingly, the Bakers’

Motion to Compel is granted as to the documents in the first and third categories not found

in the Amazon Portal, and that aspect of the Motion to Quash is denied.6

The communications within the Amazon Portal involve an issue of “control” under

Rule 45(a)(1)(A)(iii). The Bakers argue the messages are within Aquino’s control “by

virtue of some authority or relationship” between it and Amazon. See [Doc. No. 36] at 10;

[Doc. No. 38] at 1-2. Courts have found documents are within a party’s “control” if the

party has “the legal right to obtain the documents on demand.” Choctaw Town Square,

LLC v. Kokh Licensee, LLC, No. CIV-13-1246-F, 2015 WL 11661752, at *2 (W.D. Okla.

Mar. 27, 2015); see also Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v.

Nemaha Brown Watershed Joint Dist. No. 7, 294 F.R.D. 610, 613 (D. Kan. 2013) (same).

The Bakers have the burden to show the documents are within Aquino’s control. See

Choctaw Town Square, 2015 WL 11661752 at *2 (“The Tenth Circuit has not defined

‘control’ for purposes of the production of documents but has stated that the party seeking

production of the documents bears the burden of proving that the opposing party has

control.” (citing Norman v. Young, 422 F.2d 470, 472-473 (10th Cir. 1970)); see also

Barron v. Nat’l Health Ins. Co., No. CIV-19-591-SLP, 2020 WL 9600579, at *1-2 (W.D.

6 To the extent Aquino does not have any documents outside the Amazon Portal that are responsive

to the first and third categories, it is directed to file an affidavit by Mr. Aquino demonstrating as

much. Chichakli v. Samuels, No. CV-15-687-D, 2017 WL 9988971, at *5 (W.D. Okla. Apr. 17,

2017) (ordering nonparties from whom discovery was sought to produce responsive documents,

but “[i]f, in fact, no such documents are in their possession, custody or control, [they] shall submit

an affidavit to the Court demonstrating the same.”).

Okla. May 14, 2020) (denying a motion to compel because “Plaintiff has not met her

burden regarding whether the requested information and documents are within Defendant’s

possession, custody, or control.”); Pipeline Prods., Inc. v. Madison Cos., LLC, No. 15-

4890-KHV, 2019 WL 1940282, at *6 (D. Kan. May 1, 2019) (same); Boyd v. Hi Country

Chevrolet, No. CIV 10-602 RB/KBM, 2012 WL 13081437, at *1 (D.N.M. Feb. 28, 2012)

(same).7

The Bakers have not met their burden to show the documents within the Amazon

Portal are within Aquino’s control. They vaguely allude to “some authority or

relationship” between Aquino and Amazon, or that Aquino does have access to the

documents via the Portal, see [Doc. No. 36] at 10; [Doc. No. 38] at 4, but they do not offer

any details whatsoever to support their conclusory statements. On the other hand, Aquino’s

counsel repeatedly states, subject to Federal Rule of Civil Procedure 11(b), that Aquino

“does not have access to any of these communications tied to the portal service.” [Doc.

No. 37] at 2. Counsel further states Aquino “does not have a relationship that allows for

access to Amazon’s servers.” Id. at 4.8 Moreover, the Bakers are not without recourse: as

Aquino points out, they are free to subpoena the documents from Amazon. For all these

7 Although some of the cases above are dealing with party discovery sought via Federal Rule of

Civil Procedure 34, “[i]t is well settled . . . that the scope of discovery under a subpoena is the

same as the scope of discovery under Rules 26(b) and 34.” Goodyear Tire, 211 F.R.D. at 662;

Shutrump, 2017 WL 3579211 at *1 (same).

8 The Bakers argue Aquino failed to submit an affidavit or other evidence to support an objection

based on undue burden, see [Doc. No. 36] at 9; [Doc. No. 38] at 2, but the question as to the

documents in the Amazon Portal is squarely one of “control,” which the Bakers have the burden

to show. Choctaw Town Square, 2015 WL 11661752, at *2.

reasons, the Bakers’ Motion to Compel is denied as to the documents sought within the

Amazon Delivery Service Partner Portal.

The Court turns to the second category of documents requested: 2019 applications

for automobile insurance for Aquino’s participation as an Amazon Delivery Service

Partner. The Bakers and Aquino devote little attention to this category, and Aquino’s

counsel states that Aquino only has insurance policies, not any applications. [Doc. No. 37]

at 6. Accordingly, there is nothing for it to produce, and this aspect of the Bakers’ Motion

to Compel is denied.9

Finally, the Bakers ask the Court to “punish Aquino for [c]ontempt and/or also grant

[their] attorney fees” due to Aquino’s “bad faith attempt to obstruct and obfuscate proper

discovery.” [Doc. No. 36] at 11. The Bakers cite no authority whatsoever in support of

their request for sanctions, nor do they explain why “[c]ontempt” is proper under the

circumstances, or even what type of contempt they seek. In any event, because the Court

grants in part and denies in part both Motions, sanctions are inappropriate, and the parties

should bear their own costs and attorney’s fees.

IV. Conclusion

IT IS THEREFORE ORDERED that Aquino’s Motion to Quash and Motion for

Protective Order [Doc. No. 29] and the Bakers’ Motion to Compel, Sanction, and/or Hold

9 Again, the Bakers assert Aquino has not submitted evidence that it does not have the documents

requested, but the authority they cite relates only to a claim of undue burden. See [Doc. No. 38]

at 2. Although Aquino mentions undue burden, its fundamental response is that it does not have

applications for insurance, and its counsel makes that representation subject to Federal Rule of

Civil Procedure 11(b).

Aquino in Contempt of Court [Doc. No. 35] are GRANTED IN PART and DENIED IN

PART as set forth herein. With the exception of communications in the Amazon Delivery

Service Partner Portal, Aquino 1s ordered to either produce all documents responsive to the

Bakers’ first and third requests, or provide an affidavit from Mr. Aquino demonstrating

that it does not have any such documents, within 14 days of the date of this Order.

IT IS SO ORDERED this 28" day of March, 2025.

) eZ bbb

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

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