Petition for Writ of Certiorari — Tunstall v. Deese (No. 06-1310)

In The

Supreme Court of the United States

STEPHEN M. TUNSTALL,

Petitioner,

R. HAROLD DEESE

: Respondent.

On Petition for a Writ of Certiorari

To The United States Court of Appeals for the Eleventh

Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen Mitchell Tunstall, Esq.

250 Congress Street

Mobile, Alabama 36603

(251) 432-2221

Pro Se Petitioner

Question Presented

Whether a Magistrate Judge’s order imposing

monetary sanctions against an attorney for unprofessional

conduct can be predicated in whole or part on the intentional

misrepresentations of opposing counsel.

li

List of Parties

and

Statement Pursuant to Supreme Court Rule 29.6

Petitioner is a private practicing attorney for Stephen

M. Tunstall, P.C., which is a professional corporation with no

parent corporation or publicly held company owning 10% or

more of the corporation’s stock. Stephen Tunstall is the

corporation’s sole officer, director and _ shareholder.

Although not a party to the proceedings in this Court

regarding this petition, Foreign Auto Parts of Mobile, Inc.

and Professional Engine Service, Inc. are clients of Stephen

Tunstall and were parties with him to the proceedings before

the Eleventh Circuit. Foreign Auto Parts of Mobile, Inc. and

Professional Engine Service, Inc., are privately owned

entities, with no parent corporation and there is no publicly

held company that owns 10% or more of their stock.

Although not a party to the proceedings in this Court

regarding this petition nor a party to the proceedings before

the Eleventh Circuit, The Cincinnati Insurance Company is a

party to the civil action made the basis of the non party

subpoena issued by the Stephen Tunstall on behalf of his

clients to the Respondent, Harold Deese.

iii

TABLE OF CONTENTS

Question Presented

List of Parties and Statement Pursuant to S. Ct. Rule 29.6. . ii

Sj te SRA epics eR INES Ser BIO ga ili

Table of Authorities

Opinions Below

Jurisdiction

Rule of Civil Procedure Involved... 66.666. ccccseeses 2

Statement of the Case

A. Course of the Proceedings

B. Facts

Reasons for Granting the Petition

1. The Eleventh Circuit has Sanctioned the District

Court’s Departure from the Accepted and Usual

Course of Judicial Proceedings as to Call for an

Exercise of This Court’s Supervisory Power... 16

Conclusion

Appendix

Appendix A — Eleventh Circuit Opin:~n —

08/15/06 .

Appendix B ~ District Court Decision and Order —

09/22/05

Appendix C — Magistrate Judge Decision and Order —

03/10/05

Appendix D — Magistrate Judge Decision and Order —

12/09/04

Appendix E — Eleventh Circuit Order Denying

Motion To Supplement The Record On Appeal —

12/27/06

Appendix F — Eleventh Circuit Order Denying

Petition for Rehearing and Rehearing En Banc —

12/27/06

Appendix G — Statutory Provisions Involved —

Fed.R.Civ.P. 45

V.

TABLE OF AUTHORITIES

Chambers v. NASCO, Inc., 501 U.S. 32 (1991)... .16

Galen Medical Associates, Inc. v. United States, 369

F.3d 1324 (Ped.Cir. 2004) . oo. os ans 20

Hazel-Atlas Glass Co. v. Hartford Empire Co., 322

U.S. 238 (1944)

Hormel v. Helvering, 312 U.S. 552, 557 (1941)

In re E.J. DuPont De Nemours & Company-Benlate

Litigation, 99 F.3d 363 (1996)

In re Synder, 472 U.S. 634 (1985)

Schwartz v. Millon Air, Inc., 341 F.3d 1220

(11th Cir.2003)

Securities & Exchange Commission v. ESM Group,

Inc., 835 F.2d 270 (11th Cir. 1988)

Traveler’s Indemnity Co. v. Gore, 761 F-2d 1549

(11thCir.1985)

Universal Oil Products Co. v. Refining Co., 328 U.S.

575 (1946)

Statutes and Rules

28 U.S.C. §1254

28 U.S.C. §1332

28 U.S.C. §2101

28 U.S.C. §2201

Fed. R. App. P. 35

Fed. R. Civ. P. 45

S. Ct. Rule 5

S. Ct. Rule 13.1

S. Ct. Rule 13.3

l

Opinions Below

The ruling of the United States Court of Appeals for

the Eleventh Circuit dated August 15, 2006 affirming the

decision of the District Court is found at 198 Fed.Appx. 831,

2006 WL 2351841 (C.A.11 (Fla.)), was not selected for

publication in the Federal Reporter reported and is

reproduced as Appendix A at La.

The decision and order of the United States District

Court for the Northern District of Florida dated September

22, 2005 affirming the order of the Magistrate Judge’s order

imposing monetary sanctions against the attorney is found as

a Shp Copy at 2005 WL 5277203 (N.D.Fla.), and is

reproduced as Appendix B at 7a.

The decision and order of the United States

Magistrate Judge for the Northern District of Florida dated

March 10, 2005 determining the amount of the monetary

sanctions against the attorney is not reported, and reproduced

as Appendix C at 20a.

The decision and order of the United States

Magistrate Judge for the Northern District of Florida dated

December 9, 2004 imposing monetary sanctions against the

attorney is not reported, and reproduced as Appendix D at

25a.

The order of the United States Court of Appeals for

the Eleventh Circuit dated December 27, 2006 denying the

motion to supplement the record on appeal is unreported, and

reproduced as Appendix E at 34a

The order of the United States Court of Appeals for

the Eleventh Circuit dated December 27, 2006 denying the

petition for rehearing and rehearing en banc is reported at ---

2

F.3d ---- (11th Cir. (Fla.) Dec 27, 2006) (Table, No. 05-

15461), and is reproduced as Appendix F at 3Sa.

Jurisdiction

The order of the United States Court of Appeals for

the Eleventh Circuit sought to be reviewed was entered on

August 15, 2006. On September 2, 2006 petitioners’ filed a

timely petition for rehearing and rehearing en banc with the

Eleventh Circuit under Rule 35 of the Federal Rules of

Appellate Procedure. On December 27, 2 006 the Eleventh

Circuit entered an order denying the petition for rehearing

and petition for rehearing en banc. This petition for a writ of

certiorari is timely under 28 U.S.C. §2101 and Supreme

Court Rule 13.1 and 13.3 because it is being filed within 90

days of the date of the denial of rehearing. This Court has

jurisdiction to review the order of the United States Court of

Appeals for the Eleventh Circuit pursuant to 28 U.S.C.

§1254.

Rule of Civil Procedure Involved

The relevant rule of civil procedure involved is Rule

45 of the Federal Rules of Civil Procedure, set out at

Appendix G at 36a.

Statement of the Case

The jurisdiction of the district court in the Southern

District of Alabama was invoked under the Declaratory

Judgment Act, 28 U.S.C. §2201, and diversity of citizenship,

28 U.S.C. §1332. The plaintiff filed a complaint for

declaratory judgment in the U.S. District Court, Southern

District of Alabama, against defendants regarding its

obligation to pay amounts due under policies of insurance.

The defendants filed state law tort counterclaims against the

3

plaintiff b ased on diversity of citizenship. The defendants’

counsel later issued a subpoena duces tecum directed to a

non-party located in the Northern District of Florida, which

resulted in a motion to compel by the defendants and a

motion for protective order by the non-party. The magistrate

judge for the Northern District of Florida conducted a hearing

regarding the motions, denied the motion to compel, granted

the protective order and imposed monetary sanctions against

counsel for the defendants, Stephen M. Tunstall.

A. Course of the Proceedings

On June 14, 1999 Plaintiff The Cincinnati Insurance

Company (“Cincinnati”) filed a Declaratory Judgment action

in the Southern District of Alabama against Mathew

Cochran, and later his two businesses Professional Engine

Service, Inc. and Foreign Auto Parts of Mobile, Inc.

(collectively “Cochran”). Cincinnati Insurance accused

Cochran of burning his businesses, located in the same

building, and refused to pay the claim. (R-12, Ex.A:

Cincinnati’s Complaint For Declaratory Judgment)

Ultimately, District Court Judge Hand permitted

Cochran to assert counterclaims for breach of contract, bad

faith, and conspiracy, all of which survived motions for

summary judgment. Those allegations included Cincinnati

conspiring with Harold Deese, Owen Posey and John

Richardson to alter fire scene evidence and mislead

authorities in order to deny the insurance claim. (R-12, Ex.

II: 2/9/04 Order of Judge Hand)

On September 13, 2004 Cochran issued a subpoena

by certified mail for production of documents to Fire

Engineering Consultants, Inc./Harold Deese (“Deese”’) in the

Northern District of Florida, which was served on September

21, 2004. On October 20, 2004, Cochran filed a Motion To

4

Compel based on the compromise agreement as to the

production of certain documents. On November 10, 2004

Deese filed a motion for protective order, motion for

sanctions, and response to motion to compel. (R-1:

Cochran’s Motion To Compel; and, R-2: Deese’s Motion

For Protective Order)

On December 8, 2004 Magistrate Davis in the Northern

District of Florida conducted a hearing regarding these

matters, and on December 9, 2004 and March 10, 2005

issued orders granting Deese’s motion for protective order

and imposed sanctions against Cochran’s attorney Stephen

Tunstall (“Tunstall”) for alleged unprofessional conduct. (R-

6: Appendix D, 12/9/04 Order of Magistrate Davis; and, R-

8: Appendix C, 3/10/05 Order of Magistrate Davis)

Cochran and Tunstall appealed to Senior District Court Judge

Vinson, who affirmed the decision of Magistrate Daivs. (R-

58: Appendix B, 9/22/05 Order of Senior District Court

Judge Vinson) Cochran and Tunstall then appealed to the

Eleventh Circuit, a panel of which per curium affirmed the

District Court. (Appendix A)

B. Facts

Cincinnati’s civil action against Cochran in the

Southern District of Alabama involved allegations that he

committed arson. During the course of the case, evidence

was uncovered that caused the district court in Alabama

(District Court Judge Hand) to set aside its previous order of

summary judgment in favor of Cincinnati regarding its

allegations against Cochran and allowed Cochran to assert

counterclaims that included breach of contract, bad faith and

conspiracy. Cochran alleged that Cincinnati conspired with

individuals including Deese, Owen Posey (‘Posey’) and John

Richardson (“Richardson”) to alter the fire scene evidence

5

and misled law enforcement authorities regarding the

investigation and prosecution of Cochran. These

counterclaims survived Cincinnati’s motions for summary

judgment. (R-12, Ex.A, II; and, Ex.K: Cochran’s Amended

Counterclaims)

It was discovered that in 1986 Deese was caught

altering a fire scene at the “Spread Lounge” in Montgomery,

Alabama by Gerald Maddox, a member of the arson division

of the Montgomery Fire Department who went on to retire as

Deputy State of Alabama Fire Marshall. At that time,

Richardson met with Maddox and assured Maddox that

he/his firm had not known about Deese’s activities and would

not use Deese again as a fire investigator/expert. (R-12,

Ex.M: Deposition of Deputy State Fire Marshall Gerald W.

Maddox).

Subsequently, it was discovered that on February 16,

1991 there was a fire at a residence located in Chickasaw,

Alabama which Deese investigated for Richardson’s firm.

Deese concluded the fire was caused by arson based on

physical evidence (fat lighter wood placed under the heater)

which Chief Matthews, who was the arson investigator for

the city, was certain was net present at the time of the fire or

immediately thereafter. (R-12, Ex.N: Affidavit of City of

Chickasaw Chief of Police Perry Matthews)

Regarding the fire in 1998 at Mr. Cochran’s business

which spawned this litigation, a City Fire Marshall came to

the fire scene, investigated, released the scene, and concluded

the fire was probably electrical. Thereafter, Deese came to

the fire scene and was seen removing electrical evidence and

stuffing it in his car trunk the day before he brought the

electrical engineer Posey to the fire scene to rule out

electrical as the cause of the fire. (R-12, Ex.P: Affidavit of

City of Mobile Retired Fire Marshall Wayne S. Dean; Ex.Q:

6

Affidavit of Jimmy Allen Ramanauskas; and, Ex.R:

Affidavit of Matthew Leath Cochran)

Among many other things, it was discovered that the

diagram of the Fire Scene contained in Deese’s report

provided to the district court by Richardson’s firm had been

altered regarding the sample locations in order to give the

appearance of two points of origin. (R-12,Ex.S: Deese’s

2/2/99 letter to attorney John Richardson with diagrams of

fire scene)

Subsequently, the Alabama state court set aside Mr.

Cochran’s conviction and dismissed the arson case against

him. During those proceedings, the District Attorney did not

oppose the state court’s action. The D.A. noted that Deese

had been the center of investigation based on Deese falsifying

evidence of arson and that Deese’s credibility was such that

Mobile County District Judge Hardesty, the former

prosecutor who tried Mr. Cochran’s case, would not have

tried the case at all had he known about Deese’s unethical

activities. The D.A. asserted that it did not intend to re-

prosecute Mr. Cochran and the case was dismissed. (R-12,

Ex.U: State of Alabama’s Response To Rule 32 Petition).

When Cochran amended his counterclaims to include

the allegations of conspiracy regarding Cincinnati,

Richardson, Deese, and Posey, attorney Melissa Posey began

representing her father, Owen Posey, and Deese. At that

time, Ms. Posey began filing unsuccessful motions for

sanctions and making repeated harassing telephone calls to

Cochran’s attorney, Tunstall. On one occasion she waited in

Tunstall’s parking lot, approached Mr. Cochran and Tunstall.

when they arrived at the office, called Mr. Cochran a liar, and

threatened to sue Mr. Cochran and T unstall if they did not

remove al! reference to Posey and Deese from the pleadings.

Ms. Posey sent a letter containing contrived information and

7

false allegations that Cochran and T unstall were c ontacting

Posey and Deese customers and slandering them. She again

threatened to sue Tunstall and Cochran. Melissa Posey even

began contacting another attorney whose separate law

practice was located in the same building as Tunstall’s in

order to begin sending “messages” through that office, in

addition to calling, faxing, emailing through Tunstall’s office

and personally coming to Tunstall’s office. When she was

told to communicate with Tunstall through his law office, she

became rude to that attorney’s secretary. (R12-Ex.BB:

Melissa Posey 3/1/04 email to Stephen Tunstall; Ex.CC:

Affidavit of Matthew Leath Cochran; Ex.DD: Melissa Posey

4/30/04 letter to Stephen Tunstall; Ex.EE: Affidavit of

Sharla Phillips; Ex.FF: 4/13/05 Memorandum; and, Ex.GG:

Robert Mudd 4/30/04 letter to Melissa Posey)

When the Southern District issued a Supplemental

Rule 16(b) Scheduling Order and lifted the stay of discovery

on August 20, 20054, Cochran issued the subpoena to Deese

in the Northern District of Florida on September 13th, which

was served by certified mail on September 21st. The

subpoena sought proper documents relating to pending

allegations, including conspiracy between Cincinnati,

Richardson, Deese and Posey regarding the altering of fire

scene evidence and misleading of law enforcement

authorities in order to falsely deny insurance claims. (R-12,

Ex.MM: 8/20/05 Order of Magistrate Cassady; and, R-1).

On October 7th and 8th the Magistrate in the

Southern District of Alabama conducted hearings during

which the court articulated the scope for the remaining

discovery. As a result, on October 16, 2004 Tunstall sent

Ms. Posey an email and pointed out that he had received no

response to Cochran’s subpoena to Deese or Posey. Tunstall

requested that Ms. Posey conference with him to resolve the

discovery issue regarding Deese and Posey and offered a

8

compromise that was within the scope of discovery

articulated by the Magistrate. The compromise Tunstall

offered Ms. Posey regarding Deese was that he provide all

documents regarding origin and cause work performed

regarding Cincinnati claims in which Richardson provided

services from five years prior to Cochr 1n’s fire to the present;

documents regarding payment for services regarding Mr.

Cochran’s civil and criminal case; and, documents regarding

the Spread Lounge fire scene Deese is accused of altering.

Tunstall made clear he would be. going to New York

regarding a deposition in Cochran’s case, and provided his

cell number for Ms. Posey to contact him. (R-57, page 5; R-

20, minute entry 10-8-04; R-12, Ex.NN: Stephen Tunstall

10/16/04 letter to Melissa Posey).

On the morning of October 18, 2004 Ms. Posey

contacted Tunstall by telephone in response to the email. At

that time she represented to Tunstall that Posey had no

additional documents responsive to Tunstall’s offer of

compromise regarding Cochran’s subpoena to him. Ms.

Posey represented that she was in agreement for Deese to

prepare an estimate of the time and cost to Tunstall! for Deese

to pull those files relating to origin and cause work performed

regarding Cincinnati claims from five years prior to the date

of Cochran’s fire to the present. Ms. Posey represented that

it w ould be easier for Deese to not specify only those files

involving Richardson but for Tunstall to determine that when

he went through the files during production. Ms. Posey was

to speak with Deese to determine if he would produce his file

regarding the Spread Lounge fire scene he was accused of

altering. Ms. Posey understood that the discovery completion

date in the Southern District of Alabama was October 20,

2004. (R-12, Ex.0O: Stephen Tunstall 10/18/04 letter to

Melissa Posey)

When Tunstall returned from New York to work on

9

the afternoon of October 20th, he received an email from Ms.

Posey dated October 18 contaiming numerous false

accusations, including alleging that Tunstall refused to speak

with her, refused to confirm his email address, and

incorrectly represented t hat the N orthern District o f F lorida

had to issue the subpoena to Deese in order for it to be valid.

The letter culminates in misrepresenting that Tunstall agreed

that Deese would only produce “information as to the number

of other Cincinnati assignments he has worked on and the

1986 investigation file of the Spread Lounge, if his client

approves its release.” Obviously such would be of no benefit

to Cochran. The letter was a surprise to Tunstall and the

sequence of events appeared calculated to prevent Cochran

from being able to file a timely Motion To Compel in the

Northern District of Florida. (R-12, Ex.PP: Melissa Posey

10/18/04 email to Stephen Tunstall)

As a result, on the afternoon of October 20th Tunstall!

contacted. the Clerk’s Office of the Northern District of

Florida and was instructed because of the time constraints to

simply fax the motion. Cochran filed his Motion To Compel

Deese to produce three specific items:

The time and cost for Mr. Deese to produce for

inspection / copying his entire Cincinnati Insurance

fire claims investigation files from five years prior

to 11-11-98 to the present; and,

The aforementioned Cincinnati Insurance fire claims

investigation files for inspection and copying, if Mr.

Cochran agrees with the estimate of time and cost

provided — within scope of his request; and,

Produce for inspection / copying all documents

regarding the 1986 incident in Montgomery,

Alabama, in which~Deese was accused of altering a

fire scene, including his complete file regarding the

August 7, 1986, Spread Lounge Fire at 428 Twain

10

Curve, Montgomery, Alabama. (R-1, page 3)

In addition, Tunstall again corresponded with Ms.

Posey urging her to simply comply with the October 18th

compromise agreement regarding the subpoena to Deese in

order to resolve the Motion. On November 9, 2004 Ms.

Posey contacted Tunstall’s office and requested that he call

her regarding Cochran’s Motion To Compel. Tunstall agreed

to pull his file when he arrived at his office, and contact Ms.

Posey at the telephone number she provided. When Tunstall

arrived at his office he pulled his file and attempted to

contact her at the number given, however he received a fax

sound and no answer. Consequently, in a further attempt to

communicate, Tunstall utilized that telephone number to send

Ms. Posey a facsimile letter regarding the matter. Ms. Posey

then telephoned Tunstall at his office and made clear she

would not comply with the October 18th understanding

regarding the subpoena to Deese. Yet, Ms. Posey then sent

Tunstall an email falsely representing t hat T unstall had not

consulted with her, refused talk to her on the phone and not

allowed faxes. The email included a reference that she

“promised the Court” she would file a response to the Motion

that day. (R-12, Ex.QQ: Stephen Tunstall 10/22/04 letter to

Melissa Posey; Ex.SS: Stephen Tunstall 11/9/04 letter to

Melissa Posey; and, Ex.TT: Melissa Posey 11/9/04 email to

Stephen Tunstall)

On November 10th, Ms. Posey filed a motion for

protective order, motion for sanctions and response to the

motion to compel. Thereafter Tunstall received a court

notice that these matters would be taken up during a

December 8th hearing in the Northern District of Florida

before the Magistrate Davis. During that hearing, Ms. Posey

addressed the court ffirst and asserted numerous

unsubstantiated allegations against Tunstall, including failure

to communicate, in an attempt to explain her failure to file

1]

timely objections to the subpoena to Deese. When Tunstall

attempted to réspond, he apparently misunderstood the

Court’s twice interrupting him and redirecting his argument

to the subpoena and away from Ms. Posey’s personal

allegations as an encouragement not to respond because the

court was not going to consider her unsworn statements,

which were also unsupported by any evidence on file. Ms.

Posey’s arguments were nothing more than arguments of

counsel. (R-2; R-4: Notice of Hearing; R-11: Transcript of

Proceedings, page 1-11, page 17 line 13 to 19, page 27 line

12 to 25)

Notwithstanding, in the subsequent December 9, 2004

Order, Magistrate Davis accepted Ms. Posey’s statements as

fact. The Magistrate repeated misrepresentations by Ms.

Posey and concluded:

This was a disappointing reflection on his civility

and professionalism that Mr. Tunstall made no

effort to contest. (R-6, p.3 Fnl; Appendix D, page

27a)

The court finds that Mr. Tunstall has failed to serve

a valid subpoena, failed to take reasonable steps to

avoid placing a burden on Mr. Deese, failed to

cooperate in the resolution of the issues raised here,

and otherwise failed to act professionally. Ms.

Posey requests fees and costs for resisting the

subpoena. Given the lateness of her objections the

court would ordinarily not be inclined to grant that

request. However, since it appears this entire

controversy was initiated and prolonged by Mr.

Tunstall's actions, and because the lateness was

largely caused by Mr. Tunstall's efforts at delay, the

request will be granted. (emphasis added) (R-6,

Page 8 of 8; Appendix D, page 32a-33a).

12

As a result, an Order was entered incorrectly

depicting Tunstall as having acted unprofessionally and

directing him to pay Melissa Posey $3,505.64 and Deese

$1,215.75 based on the false representations of Ms. Posey.

C. The Decisions Below

When Tunstall appealed the Magistrate’s decision to

Senior District Court Judge Vinson in the Northern District

of Florida, he presented the District Court with

overwhelming evidence that Ms. Posey made intentional

misrepresentations to the Magistrate in order to falsely depict

Tunstall as unprofessional and obtain sanctions against him.

(R-12 & R-57) The District Court was provided clear

evidence that Ms. Posey had misrepresented to the Magistrate

in the Northern District of Florida that the Magistrate in the

Southern District of Alabama had denied Cochran the right to

discover documents he was requesting from Deese (R-57

pages 4 to 6, paragraphs 3 to 12).

Clear evidence was also provided that Ms. Posey’s

representation to the Magistrate as to why she failed to timely

object to the subpoena was false. At the same time Ms.

Posey represented she was prevented or banned from

communicating with Tunstall regarding the subpoena to

Deese, she was actually sending Tunstall correspondence by

email, fax, and U.S. Mail. (R57 page 12 paragraphs 1 to 2)

The District Court was provided evidefice that on the same

date Ms. Posey sent Tunstall an email alleging she was barred

from talking on the phone to him, she actually spoke with

him twice — once on Tunstall’s cell phone and once on

Tunstall’s office phone. (R-12 p.16-17, § 13 to 14; Ex.SS;

Stephen Tunstall 11/9/04 letter to Melissa Posey; and,

Ex.TT) The District Court was provided clear evidence that

Ms. Posey’s proof of alleged mailings to Tunstall were false

13

and created in an attempt to close the time gap in Deese’s

failure to object to the subpoena. (R-57 p.18-20, 416 to 19)

When presented with this information, the District

Court allowed Deese a delay in filing his Brief in order for

him to obtain and file, as additional evidence, transcripts

from conference calls occurring with the Magistrate in the

Southern District of Alabama. This additional evidence did

not establish or support any of Deese and Ms. Posey’s

representations. (R-14: Deese’s Motion To Extend Time To

Respond To Appellants’ Brief; Ex.15: Senior Judge Vinson

4/28/05 Order; Ex.21: Senior Judge Vinson 5/5/05 Order;

Ex.22: Deese’s Motion To Extend Time For Transcript;

Ex.24: Senior Judge Vinson 5/9/05 Order; R-57, pages 3 to

9). The District Court ultimately affirmed the

Magistrate’s Order.

In reaching its decision, the District Court found,

“On October 18, 2004, Tunstall wrote a

confirmatory letter summarizing his understanding

of the resolution upon which the two parties had

agreed.” (R-58: Senior Judge Vinson 9/22/05

Order, page 3; Appendix B, page 9a-10a)

The District Court’s Order. goes on to note

correspondence sent by Tunstall to Ms. Posey, requests by

Tunstall for Ms. Posey to contact him by cellular telephone to

discuss the subpoena, Ms. Posey contacting Tunstall by

telephone in response and the contradictions in Ms. Posey’s

representations on behalf of Deese. (Appendix B, page 9a-

10a) However the District Court’s Order concludes that,

“The problem with defendant’s proffer of new

evidence on appeal, however, is that this court is

limited to reviewing the magistrate judge’s order

14

under a clearly erroneous standard. Under the

clearly erroneous standard, it is inappropriate to

consider evidence not presented to the magistrate

judge.” (R-58, pagel0; Appendix B, page 18a)

Yet, the Magistrate’s Order imposing sanctions on

Tunstall referenced unprofessional conduct by attorney

Tunstall based on the clear misrepresentations of Ms. Posey,

unsupported by evidence, culminating in the Magistrate’s

decision that Tunstall “failed to act professionally’. There

was no evidence to support this finding by the Magistrate.

(R-6, p. 3 Footnote 1, and p. 8; Appendix D, page 27a)

The subsequent District Court’s Order is devoid of

any finding of unprofessional conduct by Tunstall, thereby

implicitly rejecting any evidentiary basis for a conclusion that

Tunstall “failed to act professionally”. The District Court

nevertheless proceeded to affirm, stating:

Further, even if I disregard the Magistrate Judge’s

finding that Tunstall acted unprofessionally, the

magistrate judge also imposed sanctions because the

defendant issued an invalid subpoena and failed to

take reasonable steps to prevent an undue burden on

the non-party. Based on a review of the onginal

subpoena issued, the magistrate’s conclusion that

the subpoena was overly broad and created an undue

burden on non-party Deese is fully supported by the

record. Although the defendant did significantly

narrow the scope of his discovery requests in

subsequent conversations with Deese’s attorney and

through his motion to compel, it was the originally

invalid and overly broad subpoena that caused Posey

and Deese to invest time and effort in attempting to

obtain relief. Therefore, the magistrate judge’s

imposition of sanctions was not clearly erroneous or

15

contrary to law. (R-58, p.11; Appendix B, page 18a-

19a)

The District Courts’ affirmation appears to be based

on the belief that the Magistrate’ Order imposing sanctions

should be affirmed because the subpoena was invalid in spite

of the fact that the Magistrate made clear that:

Given the lateness of her objections the court would

ordinarily not be inclined to grant that request.

However, since it appears this entire controversy

was initiated and prolonged by Mr. Tunstall’s

actions, and because the lateness was largely caused

by Mr. Tunstall’s efforts at delay, the request will be

granted. (R-6, p. 8; Appendix D, page 32a-33a)

The Magistrate’s Order imposing sanctions makes

clear that the reason the court imposed sanctions was the

purported unprofessional conduct by Tunstall, as

misrepresented by Ms. Posey during the December 8, 2004

hearing. The evidence subsequently provided by Appellants

to the District Court, made clear that Ms. Posey

representations to the Magistrate were false. (R-12 and R-57)

In Cochran and Tunstall’s appeal to the Eleventh

Circuit, they filed one Motion To Amend/Supplement the

Record containing R-12 and R-57, which was returned

unfiled by the Clerk because those documents presented to

the District Court were deemed part of the record. Cochran

and Tunstall] then filed a second Motion To Amend or

Supplement The Record to include the affidavit of Tunstall

swearing to the content of R-12 and R-57, however, that

motion was not ruled on by the Eleventh Circuit prior to a

panel of which per curium affirmed the District Court'.

' Tunstall’s affidavit enumerated his service to the bar association as the

past president of the young lawyer’s section and a member of the bar’s

16

On December 27, 2006 the Eleventh Circuit panel

denied Cochran and Tunstall’s petition for rehearing and

rehearing en banc and denied the Motion To Amend or

Supplement the Record previously filed during the original

briefing schedule.

REASONS FOR GRANTING THE PETITION

The Eleventh Circuit affirmed Senior Judge Vinson’s

refusal to consider the evidence clearly establishing that

Posey’s representations to Magistrate Davis were false. Such

is a clear departure from the accepted and usual course of

judicial proceedings when an attorney is shown to be a direct

participant in a deliberate plan to defraud the court.

The law is well settled that a federal court has the

inherent power to vacate its own judgment upon proof that a

fraud has been perpetrated upon the Court or to conduct an

independent investigation in order to determine whether it

has been the victim of fraud. Chambers v. NASCO, Inc., 501

U.S. 32, 44 (1991) (citing Hazel-Atlas Glass Co. v. Hartford-

Empire Co., 322 U.S. 238 (1944) and citing Universal Oil

Products Co. v. Root Refining Co., 328 U.S. 575 (1946)).

While pending in the district court, Senior District

Judge Vinson allowed Deese and Posey a delay in the

briefing schedule to obtain and proffer new evidence to the

district court in response to Tunstall’s evidence of their fraud.

(R-14,15,21,24). However, in his subsequent decision,

board. Tunstall’s affidavit pointed out that he has served as a specially

appointed district court judge for Mobile County, Alabama and also

served in various municipalities a substitute judge and prosecutor. In

addition, Tunstall’s affidavit made clear that he was swearing to the

truthfulness of the evidence and the representations made before the

district court

17

Senior Judge Vinson rejected Tunstall’s new evidence

because it had “not been presented to the magistrate judge.”

(R-58, page 10; Appendix, page 18a).

Subsequently, the Eleventh Circuit affirmed Senior

Judge Vinson’s decision, finding that Tunstall’s evidence

was (1) not earlier unavailable (i.e., not newly-discovered),

(2) was not presented to the magistrate judge (i.e., not

appropriate to consider evidence not presented to the

magistrate judge), and (3) the magistrate also found that the

subpoena was invalid and overly broad (i.e., not the only

basis for sanctions). (Eleventh Circuit order, page 5-6;

Appendix A, page 5a-6a). Such is not a proper analysis when

the court is presented with evidence that an attorney has

intentionally misled court.

In Hazel-Atlas Glass Co. v. Hartford Empire Co., 322

U.S. 238 (1944), overruled on other grounds Standard Oil v.

United States, 419 U.S. 17, 18 (1976), this Court addressed a

fraud on the court involving attorneys on behalf of their

client, found the fraud demanded the exercise of the historic

power of equity to set aside the fraudulently begotten

judgments in the district and circuit court. Jd. at 245. As in

the petition before this Court, in Hazel-Atlas the circuit court

refused to set aside the j udgment o f the district and circuit

court by holding that the fraud was not newly-discovered, not

the primary basis for the judgment, and the circuit court

lacked the power. /d. at 243-244. However, this Court

found that even if the petitioner had not exercised the highest

degree of diligence in uncovering the fraud, the fraud cannot

be condoned for that reason alone. /d. at 246. Further, this

Court found that whether or not the fraud was the primary

basis of the lower court’s opinion, the fraud made an

impression on the lower court as shown in the lower court’s

opinion. See id. at 246-247. This Court also acknowledged

that:

18

“..lampering with the administration of justice in

the manner indisputably shown here involves far

more than an injury to a single litigant. It is a wrong

against the institutions set up to protect and

safeguard the public, institutions in which fraud

cannot complacently be tolerated consistently with

the good order of society. Surely it cannot be that

preservation ofthe integrity of the judicial process

must always wait upon the diligence of litigants.

The public welfare demands that the agencies of

public justice be not so impotent that they must

always be mute and helpless victims of deception

and fraud.” Jd. at 246.

Lastly, as in the petition before this Court, the Court found

that “the trail of fraud continued without break through the

District Court and up-to the Circuit Court of Appeals.” and

“Had the District Court learned of the fraud on the Patent

Office at the original infringement trial, it would have been

warranted in dismissing Hartford’s case.” Id. at 250.

As in Hazel-Atlas, Tunstall, right or wrong,

understood that the Magistrate was directing him to not

respond to Posey’s allegations of unprofessional conduct and

Posey’s fraud cannot be condoned for that reason alone;

Posey’s false allegations of unprofessional conduct by

Tunstall apparently impressed the Magistrate Judge as it was

the stated basis of his decision to impose monetary sanctions;

and, the District Court erroneously concluded that could not

consider the evidence establishing Posey’s fraud on the court.

As a result of the District Court’s incorrect belief that

it could not c onsider the e vidence establishing the fraud, it

affirmed the Magistrate by concluding that the subpoena was

19

“originally invalid and overly broad’” as a basis for sanctions

against Tunstall. However, a subpoena being “originally

invalid and overly broad” is different from a magistrate’s

conclusion that the attorney engaged in unprofessional

conduct warranting the imposition of monetary sanctions.

Magistrate Davis’ incorrect conclusion of unprofessional

conduct by Tunstall remains to date and its serious putative

effect was immediate. The Clerk of this Court has declined

to allow Tunstall admission to the Bar of this Court because a

review of Magistrate Davis’s order led the Clerk to the

conclusion that Tunstall has been the subject of adverse

disciplinary action within 3 years pursuant to Supreme Court

Rule 5. Furthermore, there can be no doubt that litigants in

future legal proceedings will attempt to use the magistrate’s

incorrect finding of unprofessional conduct against Tunstall

and the position of Tunstall’s clients. The effect of the

Magistrate’s incorrect finding could last for the remainder of

Tunstall’s legal career.

The Magistrate’s decision to impose monetary

sanctions was clearly predicated on a finding of

unprofessional conduct by Tunstall, as an explanation for

Deese’s untimely objection to the subpoena, and the stated

reason the Magistrate imposed sanctions on Tunstall. There

was no evidence to support the Magistrate’s finding of

unprofessional conduct and the statements of Posey in

briefing and oral argument are not evidence of unprofessional

* While unnecessary for purposes of the issue raised in this Petition, the

original subpoena was not overly broad. The original subpoena sought

discovery from the insurance company’s fire investigator, Deese, located

in the Northern District of Florida regarding allegations pending in the

Southern District of Alabama that the insurance company conspired with

Deese to alter fire scene evidence and mislead law enforcement to falsely

prosecute the insured. The allegation that the insurance company

conspired with Deese had survived motions for summary j udgment and

was supported by evidence from two law enforcement officers in prior

fire insurance cases investigated by Deese.

20

conduct. See Galen Medical Associates, Inc. v. United

States, 369 F. 3d 1324, 1139 (Fed.Cir.2004).

Because there was no evidence to support the

Magistrate’ finding of unprofessional conduct, on appeal, the

District Court did not find any unprofessional conduct by

Tunstall. However, the District Court affirmed the

Magistrate’s order by reasoning that the subpoena itself was

invalid. The District Court cannot avoid the Magistrate’s

finding of unprofessional conduct regarding Tunstall based

on Posey’s fraud or its punitive effect on Tunstall’s

reputation, as that finding was the Magistrate’s stated basis

for his decision to impose sanctions.

The District Court and the Eleventh Circuit were

presented with clear evidence that Posey, as an officer of the

court, had intentionally misled the Magistrate and,

subsequently, the District Court, by presenting false

documentation and making false representations to the court

on behalf of her client Deese. However, the District Court

and the Eleventh Circuit refused to consider this evidence

improperly concluding that the “clearly erroneous standard”

prevents a court from considering evidence of a fraud upon

the court by an attorney on behalf of a client.

In reversing the Eighth Circuit’s suspension of an

attorney, this Court noted in Jn re Synder, 472 U.S. 634

(1985) an attorney is “an officer of the court, and, like the

court itself, an instrument or agency to advance the ends of

justice.” Jd. at 644 (quoting People ex rel Karlin v. Culkin,

> On appeal before a panel of the Eleventh Circuit, Tunstall again

presented the same evidence provided to the District Court regarding

Posey’s fraud and filed a motion to supplement the record with his

affidavit incorporating /*e evidence for consideration by the court,

however, the Eleventh Curcuit affirmed the District Court without ruling

on the motion. When Tunstall raised this issue in a petition for rehearing,

the Eleventh Circuit then denied the motion without opinion.

21

248 N.Y. 465, 470-471 (1928). The Court found that “as an

officer of the court, a member of the bar enjoys singular

powers that others do not possess...” and “(t]he license

granted by the court requires members of the bar to conduct

themselves in a manner compatible with the role of courts in

the administration of justice. Jd. 644-645.

As a result of an attorney being an officer of the court,

“{ujnder certain circumstances, attorney misconduct may

constitute fraud on the court.” See Securities & Exchange

Commission v. ESM Group, Inc., 835 F.2d 270, 274 (11th

Cir. 1988). Fraud on the court attempts to defile the court

itself, or is a fraud perpetrated by officers of the court so that

the judicial machinery cannot perform in the usual manner its

impartial task of adjudging cases that are presented for

adjudication. See Traveler’s Indemnity Co. v. Gore, 761 F.2d

1549, 1551 (11th Cir. 1985) (quoting 7 J. Moore & J. Lucas,

Moore’s Federal Practice, para. 60.33). u

Although Tunstall presented clear evidence that

Posey, as an officer of the court, intentionally presented false

documentation and made false representations regarding

Tunstall to mislead the Magistrate Judge and, subsequently,

the District Court, neither the District Court nor the Eleventh

Circuit considered the evidence or conducted an analysis as

to whether Posey committed misconduct constituting a fraud

on the court.

A district court “has the power to conduct an

independent investigation in order to determine whether it

has been the victim of fraud.” and to vacate its earlier

judgment. See In re E.J. DuPont De Nemours & Company-

Benlate Litigation, 99 F.3d 363, 367 (1996) (quoting

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991))

In Hormel v. Helvering, 312 U.S. 552 (1941), this

Court stated that :

“There may always be exceptional cases or

particular circumstances which will prompt a

reviewing or appellate court, where injustice might

otherwise result, to consider questions of law which

were neither pressed nor passed upon by the court or

administrative agency below.” and that “Rules of

practice and procedure are devised to promote the

ends of justice, not to defeat them. A mgid and

undeviating judicially declared practice under which

courts of review would invariably and under all

circumstances decline to consider all questions

which had not previously been specifically urged

would be out of harmony with this policy. Orderly

rules of procedure do not require sacrifice of the

rules of fundamental justice.” Jd. at 557.

In Schwartz v. Millon Air, Inc. 341 F.3d 1220 (11th

Cir. 2003), the Eleventh Circuit, a panel of which was led by

Chief Judge Edmundson’ reversed the district court’s award

of sanctions against two pro se attorneys, granted their

motion to supplement the record to include the exhibits from

the case files of their former clients which included

photocopies of altered medical records, and concluded the

record failed to support that the two attorneys’ conduct was

tantamount to bad faith. Jd. at 1225 n.4 & 1226.

In Universal Oil Products Co. v. Refining Co., 328

U.S. 575 (1946), this Court stated it was beyond question that

a federal court has the inherent power to investigate whether

a judgment was obtained by fraud and that the power to

* Chief Judge Edmundson denied Tunstall’s motion to supplement the

record with the evidence establishing the fraud upon the district court

regarding the erroneous ruling of unprofessional conduct by Tunstall as

the basis for the imposition of sanctions.

23

unearth such a fraud is the power to unearth it effectively.

Further, the Court made clear that, if the federal court finds

after a proper hearing that fraud has been practiced upon it, or

that the very temple of justice has been defiled, the entire cost

of the proceedings could justly be assessed against the guilty

parties. /d. at 580.

CONCLUSION

The petition for a writ of certiorari should be granted,

the judgment of the Eleventh Circuit reversed, the judgment

of the District Court set aside, and the District Court’s order

affirming the Magistrate’s finding of unprofessional conduct

and imposing sanctions reversed.

Lo) Witt)

phen M. Tunstafl

250 Congress Street

Post Office Box 152

Mobile, Alabama 36603

(251)432-2221

la

APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 15, 2006

THOMAS K, KAHN

No. 05-15461

Non-Argument Calendar

D.C. Docket No. 05-00093-CV-5-RV-MD

CINCINNATI INSURANCE COMPANY,

Plaintiff,

R. HAROLD DEESE,

Interested Party-Appellee,

versus

MATTHEW LEATH COCHRAN,

FOREIGN AUTO PARTS OF MOBILE INC.,

PROFESSIONAL ENGINE SERVICE OF MOBILE,

Defendants-Appellants,

STEPHEN M. TUNSTALL,

Appellant.

Appeal from the United States District Court

for the Northern District of Florida

(August 15,2006)

2a

APPENDIX A

Before EDMONDSON, Chief Judge, ANDERSON and

BIRCH, Circuit Judges.

PERCURIAM:

Appellant Matthew Leath Cochran, defendant in a

declaratory judgment action brought by Cincinnati Insurance

Co. in the United States District Court for the Southern

District of Alabama (the "Cincinnati Insurance action"),'

appeals a discovery order and award of sanctions of the

United States District Court for the Northern District of

Florida, in favor of Appellee Fire Engineering Consultants,

Inc./ Harold Deese,” a non-party witness in the Cincinnati

Insurance action. No reversible error has been shown; we

affirm.

As part of discovery in the Cincinnati Insurance action,

on 21 September 2004, Appellant issued a subpoena duces

tecum in the name of the United States District Court for the

Northern District of Florida to Appellee, who is located in

Panama City, Florida (more than 100 miles from the

Southern District of Alabama). When no discovery was

forthcoming from Appellee, on 20 October

' Also named as defendants in the Cincinnati Insurance action were

two businesses of Appellant Cochran, Foreign Auto Parts of Mobile, Inc.,

and Professional Engine Service of Mobile.

> The discovery motion in the Northern District of Florida was

brought naming "Fire Engineering Consultants, Inc./Harold Deese:" As

the magistrate judge observed, the record is much confused

about who, if anyone, was served. Complicating the matter further, it

seems that only Deese appeared in opposition to the motion to compel.

3a

APPENDIX A

2004, Appellant made a motion to compel in the district court

in Florida. Appellee responded to this motion with a motion

to quash and for sanctions. A hearing was held on the

motion to compel and the motion to quash and for sanctions

before a magistrate judge on 8 December 2004. Much of that

hearing focused on infirmities in the subpoena duces tecum,

the timeliness of the motion to compel, and the timeliness of

the motion to quash and for sanctions. The magistrate judge

determined that (i) the subpoena - if it was served — failed to

comply with Fed.R.Civ.P. 45, was invalid and unenforceable;

(ii) na reasonable steps were taken to avoid placing an undue

burden on a non-party; (iii) the motion to compel was

untimely; and (iv) the motion for protective order was due to

be granted. In awarding sanctions, the magistrate judge noted

—- in addition to the invalidity of the subpoena and the

failure to take reasonable steps to avoid placing an undue

burden on Appellee — that Appellant's counsel had failed to

cooperate and otherwise failed to act professionally.

Sanctions were awarded after receipt of Appellee's statement

of expenses incurred responding to the invalid subpoena and

motion to compel; Appellant filed no response in opposition

to the requested expenses. Appellant appealed the protective

order and the sanctions imposed to a district judge.

—

4a

APPENDIX A

The district court also determined that the subpoena

duces tecum was due to be quashed and Appellant's motion

to compel - which the court also considered untimely filed -

denied because the subpoena failed to comply in many

respects with the requirements of Rule 45.° Appellant argued

before the district court and again argues on appeal that the

subpoena was issued in good faith; Appellant does

not —- and can not reasonably — argue that the subpoena

satisfied applicable procedural requirements.

The district court also affirmed the imposition of

sanctions. Appellant challenged the sanctions by (i) arguing

that no sufficient notice and opportunity to be heard preceded

the sanction judgment, and (ii) taking issue with the facts

upon which the magistrate relied. Appellant repeats those

challenges in this appeal.

About Appellant's contention that insufficient notice and

opportunity to be heard preceded the imposition of sanctions,

we note, as did the district court, that Appellant was given

notice that the hearing before the magistrate was to address

Appellant's motion to compel and to address Appellee's

motion for protective order and sanctions. Appellant was

afforded adequate notice; he could have

* Both the magistrate judge and the district judge noted that

procedural defects in a subpoena usually may be cured by amendment

and reservice. Because the period for discovery had expired in the

Cincinnati Insurance action, the Appellant would need to seek an

extension of discovery in the Southern District of Alabama before

seeking to amend the subpoena.

Sa

APPENDIX A

addressed the motion for sanctions by filing a memorandum

in opposition -- as required by Local Rule 7.1- and by arguing

against the motion at the hearing. Appellant chose neither

course.” Appellant was afforded sufficient opportunity to be

heard.

In the district court, Appellant sought to introduce

affidavits and orders entered in the Cincinnatti Insurance

action in an effort to show that the magistrate judge erred in

concluding that Appellant had acted unprofessionally.

Appellant contended that these belatedly proffered materials

showed that the magistrate judge relied on misstatements of

fact and purposeful distortions made by Appellee's counsel at

the hearing. The district court refused to consider this new

evidence; the materials proffered were not earlier unavailable

to Appellant but were not presented to the magistrate judge.

Nonetheless, the district court determined that even if the

magistrate's finding of unprofessionalism was disregarded,

the magistrate's imposition of sanctions was due to be

affirmed based on the magistrate's findings that the subpoena

was invalid and overly broad.

* Appellant's brief concedes that he decided to focus on his motion

to compel and to ignore his adversary's attacks. Although Appellant does

contend that he was twice interrupted when he

attempted to respond to assertions made by Appellee, the record discloses

that Appellant had ample opportunity to contest the imposition of

sanctions.

6a

APPENDIX A

Again on appeal Appellant seeks to argue the factual

determinations underlying the magistrate's decision that

counsel acted unprofessionally; and again, he relies on

evidence that was not before the magistrate judge and that the

district court refused expressly to consider. But Appellant

takes no issue with the factual findings that the subpoena

duces tecum issued to Appellee was invalid and that the

subpoena, as originally issued, was overly broad and imposed

an undue burden on a non-party. Based on these findings —

which are supported by the record — we can not say that the

district court abused its discretion when it determined that the

imposition of monetary sanctions was neither clearly

erroneous nor contrary to law.

AFFIRMED.

7a

APPENDIX B

Case 5:05-cv-00093-RV-MD Document 58 Filed 09/22/2005

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

THE CINCINNATI INSURANCE

COMPANY,

Plaintiff,

v. Case No. 5:05cv93/RV/MD

MATTHEW LEATH COCHRAN

Defendant.

/

ORDER

Pending is the defendant's objection to Magistrate Judge

Davis' orders of December 9, 2004, and March 10, 2005.

(Doc. 12). 5

Magistrate Judge Davis denied defendant Matthew

Leath Cochran's motion to compel a subpoena duces tecum

issued to Fire Engineering Consultants, Inc. The magistrate

judge also granted a motion for protective order and motion

for sanctions filed by nonparty R. Harold Deese in reference

to the subpoena duces tecum. Pursuant to Rule 72(a), Federal

Rules of Civil Procedure, defendant has filed this objection to

the Magistrate's orders.

I. BACKGROUND

In 1999, Cincinnati Insurance Company ("Cincinnati

Insurance") filed a declaratory judgment action in the United

8a

APPENDIX B

States District Court for the Southern District of Alabama

against defendant Matthew Leath Cochran, seeking to deny

coverage on a fire insurance policy, based on Cincinnati

Insurance's allegation that Cochran set fire to his own

business. In return, Cochran asserted counterclaims against

Cincinnati Insurance for Breach of Contract, Bad Faith and

Conspiracy, alleging that Cincinnati Insurance conspired

with an independent fire investigator, R. Harold Deese, as

well as others, to alter the fire scene in order to deny his

claim.

The procedural history of this case is long and

convoluted and has been described by United States District

Court Judge Charles R. Butler as a "procedural nightmare."

After five years of litigation, this case was set for a pretrial

conference on February 2, 2004, before Senior Judge W.

Brevard Hand.* When the defendant submitted his proposed

pretrial order, there was a dispute about the factual

allegations in support of defendant's counterclaim for

conspiracy. Specifically, defendant alleged that plaintiff's

experts, Harold Deese and Owen Posey, fabricated evidence

of arson, and that plaintiff's counsel, John Richardson,

conspired to prosecute Cochran for arson. The plaintiffs

moved to strike these allegations, and Judge Hand decided to

continue the jury trial and to grant the defendant leave to

amend the counterclaim in order to clarify the specific nature

of the allegations relating to the conspiracy claim.’

Subsequently, on March 3, 2004, Judge Callie V. S. Granade,

’ See Order, dated August 5, 2004, attached as Exhibit LL to

Defendant's Brief.

? Judge Hand stepped down from the case during 2004, and the case

was transferred to Judge Granade. However, Judge Callie Granade,

thereafter, recused herself, and the case was then transferred to Judge

Butler.

> Defendant's Brief, Doc. 12, Ex. LL.

9a

APPENDIX B

to whom the case had been assigned, referred the matter to a

magistrate judge so that a scheduling order could be entered

allowing the parties to engage in discovery "solely on the

new issues raised by the amended counterclaims."

After the defendant alleged that Richardson and Deese

conspired to alter the fire scene and maliciously prosecute

him, Richardson and his law firm, as well as Deese, sought to

intervene in the lawsuit. The court entered a stay of

discovery while questions of the junsdiction of the

interveners were being resolved. The discovery stay was

lifted on August 23, 2004, and the remaining limited

discovery was scheduled to be completed by October 20,

2004. On September 13, 2004, defendant issued a subpoena

duces tecum to Fire Engineering Consultants, Inc., which is

Harold Deese’s investigation firm. Defendant sent the

subpoena duces tecum by certified mail addressed to Harold

Deese in Panama City, Florida. On September 21, 2004, an

individual named A. Stevens signed for the subpoena duces

tecum.

Due to hurricane Ivan which hit the Panama City and

Pensacola area on September 16, 2004, Deese was not able to

contact his attorney until the first week of October 2004.

Subsequently, on approximately October 13, 2004, Deese's

attorney, Melissa A. Posey, sent a certified letter to the

defendant's attorney, Steven M. Tunstall, outlining several

procedural deficiencies in the subpoena. However, the letters

were returned to Posey unclaimed after several attempted

deliveries by the United States Postal Service. Tunstall sent

Posey a letter, dated October 16, 2004,* requesting the status

of the production of documents and suggesting that Posey

contact him via his cellular phone to discuss the subpoena.

* 4 Deese asserts that defendant did not mail the letter until

October 18, 2004, but Deese's attorney admits that she called defendant's

attorney on October 18, 2004, in response to the letter.

10a

APPENDIX B

In response, Posey contacted Tunstall on October 18, 2004.

The two attorneys discussed the scope of the subpoena, as

well as the costs of producing the documents, and both

attorneys thought that they had reached a mutual agreement.

On October 18, 2004, Tunstall wrote a confirmatory

letter summarizing his understanding of the resolution upon

which the two parties had agreed. Tunstall noted that Deese

was to prepare an estimate of the time and cost in pulling the

files related to the subpoena duces tecum, and Deese would

forward the files "regarding origin and cause work performed

regarding Cincinnati Insurance claims from five years pnor

to the date of Mr. Cochran's fire (11/11/98) to the present."

Further, Deese would notify the defendant if he would be

producing all documents relating to his 1986 investigation of

a fire in Montgomery, Alabama. However, on October 20,

2004, Posey wrote a letter to Tunstall, confirming her

understanding of the agreement reached on October 18, 2004.

The summary outlined in Posey's confirmation letter had

several conflicts with Tunstall's summary. As a result,

defendant filed a motion to compel in this court on October

26, 2004.° On November 9, 2004, Tunstall acknowledged

that Deese contacted him via telephone earlier that morning

to discuss a resolution. However, Tunstall wrote that when

he tried to re-contact Posey after pulling the case file, he was

unable to make contact. On November, 9, 2004, Deese filed

a motion for protective order and a motion for sanctions.

On December 8, 2004, Magistrate Judge Davis

conducted a hearing regarding the defendant's motion to

* Apparently the defendant faxed the motion to compel to the clerk

of court on October 20, 2004;after he was informed by a deputy clerk

that he could fax the motion and then send it via the mail. However, as

noted by the magistrate judge's order, there is no fax on file, and this

court does not accept faxed filings without leave of the presiding judge.

See Order, Doc. 6, p.7.

lla

APPENDIX B

compel and Deese's motion for protective order and motion

for sanctions. After the hearing, Magistrate Judge Davis

denied the defendant's motion and granted the Deese's

motion for protective order and motion for sanctions.

Subsequently, on March 10, 2005, the magistrate judge

ordered Tunstall to pay $3,505.64 to Posey for attorney's fees

and $1,1215.75 to Deese for expenses associated with

obtaining relief from the defendant's subpoena. The

defendant now appeals the magistrate judge's order.

II. STANDARD OF REVIEW

A magistrate j udge is permitted to hear and determine

any nondispositive pretrial matter pending before the court,

including discovery matters, and the decision of the

magistrate judge is a final decision. 28 U.S.C. §636(b)(1)(A)

(2004). If a party objects to the magistrate judge's order, a

district court may set aside or modify the order only if the

district court finds that the magistrate's order is "clearly

erroneous or contrary to law.” 28 U.S.C. §636(b)(1)(A); Fed.

R. Civ. P. 72(a). See also, In re Commissioner's Subpoenas,

325 F.3d 1287, 1292 (11th Cir. 2003); Haines v. Liggett

Group Inc., 975 F.2d 81, 91 (3d Cir. 1992)("the review of the

district court is circumscribed: the district court is bound by

the clearly erroneous rule in reviewing questions of fact).

A finding is clearly erroneous when “although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed." Pullman-Standard v. Swint,

456 U.S. 273,285 n.14,1028.Ct.1781,72 L.Ed. 2d 66

(1982). See also, Johnson v. Hamrick, 296 F.3d 1065, 1074

(11th Cir. 2002). The question for the reviewing court is not

whether the finding 1s the best or only conclusion that can be

drawn from the evidence. Instead, the test is whether there is

evidence in the record to support the lower court's findings,

12a

APPENDIX B

and whether its construction of that evidence is a reasonable

one. H eights Community C ongress v. Hilltop R ealty. Inc.,

774 F.2d 135, 140-41 (6th Cir. 1985).

Ill. DISCUSSION

A. Motion to Compe!

The m agistrate j udge denied the defendant's m otion to

compel and quashed the defendant's subpoena duces tecum

based on the conclusion that the subpoena did not comply

with the mandates of Rule 45 of the Federal Rules of Civil

Procedure; therefore, the subpoena was invalid and could not

be enforced. Notably, in

defendant's brief requesting this court to set aside the

magistrate judge's order, the defendant does not offer any

objection to the determination that the subpoena contained

numerous defects in form and service.

Indeed, it appears that the subpoena issued by the

defendant to the non-party witness did not comply with Rule

45. For example. Rule 45(a)(1) of the Federal Rules of Civil

Procedure provides that every subpoena shall:

(A) state the name of the court from which it is

issued; and

(B) state the title of the action, the name of the court

in which it is pending, and its civil action number;

and

(C) command each person to whom it is directed to

attend and give testimony or to produce and permit

inspection and copying of designated books,

documents or tangible things in the possession,

custody or control of that person, or to permit

inspection of premises, at a time and place therein

specified; and

(D) set forth the test of subdivisions (c) and (d) of

this rule.

13a

APPENDIX B

Subsections (c) and (d) of Rule 45 describes certain

protections and rights for the party being subpoenaed, and

certain obligations of the party issuing the subpoena.

Relevant to this dispute, subsection (c)(1) provides that: "A

party or an attorney responsible for the issuance and service

of a subpoena shall take reasonable steps to avoid imposing

undue burden or expense on a person subject to that

subpoena." M oreover, su bsection (c)(3)(A) provides that a

court may quash or modify a subpoena if the subpoena

"requires a person who is not a party or an officer of a party

to travel to a place more than 100 miles from the place where

that person resides, is employed or regularly transacts

business" or "subjects a person to undue burden."

Fed.R.Civ.P. 45(c)(3)(A)(ii), (iv).

In this case, the subpoena issued to Deese did not state

the name of the court in which the action was pending.

Instead, it stated the Northern District of Florida, while the

action to which the subpoena pertained was actually pending

in the Southern District of Alabama. Further, the subpoena

did not "set forth the text of subdivisions (c) and (d) of [Rule

45]." T herefore, the non-party to whom it was issued w as

not instructed on certain rights and obligations concerning

the subpoena, such as the appropriate relief the non-party

could seek if he were required to travel more than 100

miles.

The form of the subpoena also did not comply with Rule

45 because it did not specify a place where the non-party

could produce or permit inspection of the documents, except

the address of the defendant's attorney in Mobile, Alabama.

The defendant did not compel the production of the

documents in the Northern District of Florida, even though

the documents were located within this district. Instead, it

appeared from the face of the subpoena that Deese could

either travel to Mobile,

14a

APPENDIX B

Alabama, to produce the documents, or mail them to

Tunstall's Mobile office. Nevertheless, no fees or expenses

were tendered for appearance in or travel, nor did the

defendant tender fees_for mailing and copying the

voluminous documents requested. Failing to tender the

applicable sums and fees in advance, with the subpoena, may

make the subpoena invalid. See CF&I Steel Corp. v. Mitsui

& Co., 713 F.2d 494 (9th Cir. 1983).

Based on all of these deficiencies, the magistrate judge

determined that the subpoena was invalid and must be

quashed. The magistrate judge's order quashing the

subpoena and denying the defendant's motion to compel on

the basis that the subpoena was not in compliance with Rule

45 was correct, and certainly not clearly erroneous or

contrary to law. See e.g., In re Silicone Gel Breast Implants

Prod. Liability Litigation, 1996 WL 1358526, *1n. 1 (N.D.

Ala. 1996)(court will deny motion to enforce subpoena

where the subpoena is not in compliance with Rule 45);

Smith v, Midland Brake. Inc., 162 F.R.D. 683, 686 (D. Kan.

1995)(holding that a court cannot compel a party to comply

with a subpoena duces tecum which is not properly issued or

served).°

B. Sanctions

The gravamen of the defendant's objection to the

° The magistrate judge noted that procedural defects in a subpoena

can generally be cured by amendment and reservice, but according to the

scheduling order entered by the District Court for the Southern District of

Alzb.ma, the discovery deadline had already passed at the time the

magistrate judge denied defendant's motion to compel based on the

defective subpoena. Reasoning that he should not extend the discovery

deadline imposed by another court where the action was pending, the

magistrate judge explained that the defendant would have to seek an

extension from the Court in the Southern District of Alabama before

amending the subpoena.

lSa

APPENDIX B

magistrate judge's order centers upon the imposition of

sanctions on the defendant's attorney, Tunstall. The

imposition of discovery sanctions is within the magistrate's

power under Title 28, United States Code, Section

636(b)(1)(A). See Merritt v. Intel Broth of Boilermakers,

649 F.2d 1013, 1016-1017 (Sth Cir. 1981). Rule 45 provides

that a court may enforce the issuing party's obligation to take

reasonable steps to avoid imposing undue burden or expense

on a person subject to the subpoena "by imposing upon the

party or attorney in breach of this duty an appropriate

sanction, which may include, but is not limited to, lost

earnings and a reasonable attorney's fee." Fed. R. Civ. P.

45(c)(1). Further, Rule 26 of the Federal Rules of Civil

Procedure permits a court on its own initiative or upon a

motion to sanction an attorney for signing a discovery

request which is unreasonable or unduly burdensome or

expensive, considering factors such as the needs of the case,

the discovery already had in the case, the amount in

controversy, and the importance of the issues at stake in the

litigation. Fed. R. Civ. P. 26(g)(2)(c) and (g)(3). It is the

standard practice in this Court for the losers in discovery

disputes that are not based on reasonable grounds to have

sanctions imposed.

Defendant suggests that he did not receive adequate

notice and an opportunity to be heard before the sanctions

judgment was entered. Defendant posits in his brief

objecting to the magistrate's order that "it is important for an

attorney or anyone close to be informed that the Court was

contemplating sanctions and be given an opportunity to

respond to those issues the Court deemed colorable.” See

Appellant's Brief, p. 18. However, a motion for sanctions

places both the party and its attorney on notice that the court

may assess sanctions against either the attorney or the party.

Devaney v. Continental American Ins. Co.. 989 F.2d 1154,

16a

APPENDIX B

1160 (11th Cir. 1993); See also, Levin & Assoc. v. Rogers,

156 F.3d 1135, 1142 (11th Cir. 1998)(holding that the filing

of numerous motions for sanctions is sufficient put the

attorney on notice of the potential imposition of sanctions by

the court to satisfy the requirements of due process).

Moreover, Local Rule 7.1, which Tunstall is responsible for

knowing and following, requires a party opposing a motion

to file a responsive memorandum in opposition to the motion,

and provides that "[flailure to file a memorandum may be

sufficient cause to grant the motion." Jd.

Here, after the defendant filed his motion to compel,

non-party Deese responded by filing a motion for protective

order and a motion for sanctions against the defendant. In

response Tunstall did not file a memorandum in opposition to

Deese's motion for sanctions as required by Local Rule 7.1.

Further, the defendant was given notice that the December 8,

2004, hearing before the magistrate judge was in reference to

both his motion to compel and Deese's motion for sanctions.

In Deese's motion for sanctions, he accuses Tunstall of

uncivil and unprofessional abuses of the judicial process.

Deese's counsel repeated those accusations before the

magistrate judge during the hearing. Notably, however,

Tunstall admits that during the hearing, he decided to focus

solely on his own Motion to Compel, and to not address the

arguments made against him personally regarding improper

conduct. By Tunstall's own admission, then, he had an

opportunity to be heard on the issue of sanctions, but instead

chose to remain silent and leave the improper conduct

accusations made against him unrebutted.’

’ Tunstall asserts that he was interrupted twice during the hearing

when he tried to refute Posey's arguments. While the transcript of the

hearing does reveal that Tunstall was redirected to the adequacy and

timeliness of the subpoena when he attempted to address the scope of

permissible discovery. See Transcript, Doc. 11, p.27, Tunstall still had

17a

APPENDIX B

Other than defendant's assertion that he was not

provided adequate notice and opportunity to be heard

regarding sanctions, the defendant does not argue that the

magistrate judge's order is contrary to law. Instead, the

defendant simply reargues the facts which predicated the

magistrate judge's order, and contends that the magistrate

judge's factual findings are not supported by the record. The

magistrate judge's order stated, in relevant part, "The court

finds that Mr. Tunstall has failed to serve a valid subpoena,

failed to take reasonable steps to avoid placing a burden on

Mr. Deese, failed to cooperate in the resolution of the issues

raised here, and otherwise failed to act professionally."

Therefore, the magistrate judge granted Deese's request for

sanctions, including the fees and costs associated with

resisting the subpoena.

On appeal, defendant strenuously argues that Posey

misrepresented the facts before the magistrate judge

regarding Tunstall's previous communications with her,® and

also that the Southern District of Alabama's previous orders

limiting discovery did not address the same type of requests

ample opportunity at other times to address the issue of sanctions, and at

no point did he attempt to refute the allegations regarding potential

unprofessional behavior on his part.

* For example, at the hearing Posey asserted that Tunstall had

previously informed her, via another attorney in his office building, that

she could only contact him through the mail; therefore, she could not

telephone or fax Tunstall to discuss her objections to the subpoena. On

appeal, Tunstall adamantly refutes Posey's contention, and argues that he

never informed Posey that she could not telephone, e-mail or fax him.

Instead, Tunstall asserts that sometime in 2004, for reasons not clear from

the record, Posey attempted to fax Tunstall correspondence by sending

her fax to another attorney, Mr. Mudd, located in Tunstall's office

building but completely unrelated to Tunstall's law firm. After

consultation with Tunstall, Mudd informed Posey that she should not

attempt to contact Tunstall through Mudd's office. The record is not clear

why Tunstall's office was apparently unstaffed at times.

18a

APPENDIX B

at issue in Deese's subpoena. In support of defendant's

argument, he offers affidavits from witnesses and copies of

orders previously entered by the Southern District of

Alabama. The problem with defendant's proffer of new

evidence on appeal, however, is that this court is limited to

reviewing the magistrate judge's order under a clearly

erroneous standard. Under the clearly erroneous standard, it

is inappropriate to consider evidence not presented to the

magistrate judge. Haines v. Liggett Group, Inc., supra, 975

F.2d at 93. See also e.g., Chase Manhattan Bank v. Iridium

Africa Corp., 2003 WL 22928042 (D. Del 2003) (holding

that the district court may not consider evidence and

materials which were not before the magistrate judge);

SmithKline Beecham Corp. v. Apotex Corp., 2000 WL

1310669 (N.D. Ill 2000)(noting that permitting the

introduction of new evidence on appeal is essentially

conducting an impermissible de novo review of the

magistrate j udge's order); Scott Paper Co. v. United S tates,

943 F. Supp. 501 (E.D.Pa. 1996).

At the hearing, Tunstall did not attempt to refute Posey's

assertion that he had refused to accept phone calls or e-mails

from her. Instead, he remained silent and waited until this

appeal to offer evidence to the contrary. As defendant's

counsel concedes, all of this information was available before

the December 8, 2004, hearing before the magistrate judge.

‘i Further, even if I disregard the Magistrate Judge's

finding that Tunstall acted unprofessionally, the magistrate

judge also imposed sanctions because the defendant issued an

invalid subpoena and failed to take reasonable steps to

prevent an undue burden on the non-party. Based on a

review of the orginal subpoena issued, the magistrate's

conclusion t hat the subpoena was o verly broad and created

an undue burden on non-party Deese is fully supported by the

record. Although the defendant did significantly narrow the

19a

APPENDIX B

scope of his discovery requests in subsequent conversations

with D eese's attorney and t hrough his motion to compel, it

was the original invalid and overly broad subpoena that

caused Posey and Deese to invest time and effort in

attempting to obtain relief. Therefore, the magistrate judge's

imposition of sanctions was not clearly erroneous or contrary

to law.

Il. CONCLUSION

For the. foregoing reasons, the decision of the

magistrate judge is AFFIRMED.

DONE AND ORDERED this 22nd of September, 2005.

\

/s/ Roger Vinson

ROGER VINSON

Senior United States District

20a

APPENDIX C

FILED MARCH 10, 2005

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

THE CINCINNATI INSURANCE

COMPANY,

Plaintiff,

VS. No. 5:04mc2/RV/MD

MATTHEW LEATH COCHRAN,

Defendant.

ORDER

This action is pending in the United States District

Court for the Southern District of Alabama. Plaintiff sued the

defendant in a declaratory judgment action seeking to deny

coverage on a fire insurance policy on the ground of arson by

the insured, defendant Matthew Cochran. Defendant

counterclaimed, and after a complicated procedural battle

asserted claims of bad faith, breach of contract, and

conspiracy. As part of his discovery defendant's counsel

issued a subpoena duces tecum directed to a non-party, Fire

Engineering Consultants, Inc. (FECI) and one to R. Harold

Deese, both of Panama City, Florida. After there was no

response, defendant moved to compel production of the

documents described in the subpoena(s). R. Harold Deese

filed a motion for protective order, which was granted by this

court after a hearing. (Doc. 6). Mr. Deese was given ten days

to file admissible evidence of the actual expenses that he

incurred in obtaining the relief granted in this order. Mr.

2la

APPENDIX C

Tunstall, counsel for the defendant, was afforded ten days to

file evidence in opposition. Mr. Deese filed his response in

support of the granting of fees (doc. 7), noting expenses of

$2,555.73 for himself and $3,505.64 in total legal fees and

expenses for counsel. Counsel for the defendant has not filed

any response in opposition to the non-party's request.

Rule 45(c)(1) of the Federal Rules of Civil Procedure

provides in part that a party or attorney responsible for the

issuance and service of a subpoena shall take reasonable

steps to avoid imposing undue burden or expense on a person

subject to the subpoena. Because the court found that counsel

for the defendant had not taken such reasonable steps, it

determined that a monetary sanction would be awarded.

(Doc. 6). The rule further provides that the sanction may

include, but is not limited to, lost earnings and a reasonable* .

attorney's fee. In its order granting the motion for protective

order, the court advised the parties that it would take the

issue of the amount of the monetary sanction under

advisement without a hearing. As noted above, defense

counsel Mr. Tunstall filed no response or objection. Failure

to file a responsive memorandum may be sufficient cause to

grant relief. N.D. Fla.Loc.R.7.1(C)(1).

Mr. Deese's $2,555.73 in expenses is itemized as

follows:

4.5 hours travel to Pensacola for meeting with counsel!

$ 337.50 [$75 per hour]

4.7 hours travel to Pensacola for meeting with counsel

$ 352.50 [$75 per hour]

1.5 hours meeting with attorney $ 202.50 [$135 per hour]

1.2 hours reviewing files to respond to subpoena

$ 162.00 [$135 per hour]

1.5 hours search storage for files $ 202.50 [$135 per hour]

' Meeting cancelled due to Hurricane Ivan.

22a

APPENDIX C

546 miles (2 trips) $ 273.00

24.75 clerical hours $ 866.25° [$35 per hour]

14 photocopies . > 350

Florida Sales Tax 6 %2% $ 155.98

Ms. Posey's time is broken down into increments as

small as 3 minute blocks of time. She reports that she

expended a total of 23.30 hours on this matter at a rate of

$150 per hour, for total fees in the amount of $3,495.00. She

also reports expenses of $10.64, for a total of $3,505.64.

“The first step in computing a reasonable fee is to

determine the lodestar, which is the product of the number of

hours reasonably worked by-a lawyer and a reasonable

hourly rate.” Dillard v. City of Greensboro, 213 F.3d 1347,

1354 (11th Cir. 2000). Because the court is guided by

equitable principles in determining a reasonable fee, Durrett

v. Jenkins Brickyard, Inc. 678 F.2d 911, 917 (11th Cir.

1982)(citing Faraci v. Hickey-Freeman Co., 607 F.2d 1025,

1028 (2nd Cir. 1979), those principles must necessarily be

employed in determining both the reasonable hourly rates to

be employed and the number of hours reasonably worked.

The Supreme Court has repeatedly stated that the lodestar "is

presumed to be the ‘reasonable fee’ to which counsel is

entitled." Pennsylvania v. Delaware Valley Citizens' Council

- for Cléan Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d

439 (1986) (Delaware Valley 1) (quoting Blum v. Stenson,

465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984));

see also Pennsylvania vy. Delaware Valley Citizens' Council

for Clean Air, 483 U.S. 711,728, 107 S.Ct. 3078, 3088, 97

L.Ed.2d 585 (1987) (Delaware Valley II); City of Burlington

v.Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 2641, 120

? The figure on the explanatory page is actually $.35 less due to

differences in line calculations. ($869.40 less $3.50 in photocopies is

$865.90).

23a

APPENDIX C

L.Ed.2d 449 (1992). Upward adjustments of the lodestar

figure are permissible only in "rare and exceptional cases

supported by both specific evidence on the record and

detailed findings b y the lower courts." D elaware Valley I,

478 U.S. at 565, 106 S.Ct 3088 (internal quotations and

citation omitted); Delaware Valley II, supra, (citing Blum,

465 U.S. at 898-901,104 S.Ct. at 1548-50); see also Loranger

v. Stierheim, 3 F.3d 356, 362 (11th Cir. 1993). The burden is

on the non-party's counsei, as the fee applicant, to establish

entitlement to the, requested award, including any

enhancements. Hensley, 461 U.S. at 437, 103 S.Ct. at 1941;

Dague, 505 U.S. at 562, 112 S.Ct at 2641; Blum, 465 U.S. at

898, 104 S.Ct. at 1548-49.

This is not a case in which an enhancement of fees

would be appropriate, and in any event Mr. Deese's counsel

does not seek an enhancement. Based on a review of her

submissions in this case and her preparedness for the hearing

held on the motions to compel and for protective order, the

court finds both the time expended in this matter and the

hourly rate charged to be reasonable.

Mr. Deese's reported expenditures must be scrutinized

more carefully. His out-of-pocket losses (mileage,

photocopies and secretarial) are recoverable, but that does

not necessarily include the value of his own time. Unlike the

award of attorney fees, which a client incurs and must pay,

the client's own loss is not so easily determined. In this case

\if Mr. Deese was an hourly employee and showed an actual

loss of income for the time spent in this case, an award of the

actual loss would be an easy matter to determine. Mr. Deese

is not such a person, however. He is a self-employed expert

consultant in the fire loss industry. As such, he can charge

fees for his services. Here, however, he was not performing

services for a client, but was acting in his own behalf. The

court understands that Mr. Deese's time has value when it is

24a

APPENDIX C

engaged by a third party. However, Mr. Deese has not shown

that he actually lost the value of his time. That is, he has not

shown that he had to give up this time in favor of other

income-producing time, such as by losing other potentially

paying work. Under these circumstances, it would be an

abuse of discretion for this court to award Mr. Deese for

income that he has proven was actually lost. The amount

claimed for sales tax is not explained, and does not appear to

have actually been paid to the State. It is therefore not

included.

___ Accordingly, it is ORDERED:

Within a reasonable time, Stephen M. Tunstall, Esq.,

counsel for defendant Matthew Leath Cochran, shall pay

$3,505.64 to Melissa A. Posey, Esq., and $1,215.75 to R.

Harold Deese.

DONE AND ORDERED at Pensacola, Florida this 10th

day of March, 2005.

/s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

25a

APPENDIX D

FILED DECEMBER 9, 2004

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

THE CINCINNATI INSURANCE

COMPANY,

Plaintiff,

VS. . No. 5:04mc2/RV/MD

MATTHEW LEATH COCHRAN,

Defendant.

ORDER

This action is pending in the United States District

Court for the Southern District of Alabama. Plaintiff has

sued the defendant in a declaratory judgment action seeking

to deny coverage on a fire insurance policy on the ground of

arson by the insured, defendant Matthew Cochran. Defendant

counterclaimed, and after a complicated procedural battle

now asserts claims of bad faith, breach of contract, and

conspiracy, As part of his discovery defendant's counsel

issued a subpoena duces tecum directed to a non-party, Fire

Engineering Consultants, Inc. (FECI) and possibly one to R.

Harold Deese, both of Panama City, Florida. Defendant says

that the subpoena(s) was served, but that there was no

response. He now asks the court to compel production of the

documents described in the subpoena(s). R. Harold Deese

has filed a motion for protective order. A hearing pursuant to

notice was held on December 8, 2004.

26 a

APPENDIX D

Rule 45

Rule 45, Fed. R. Civ. P., deals with subpoenas. Relative

to this proceeding, Rule 45(1) provides that every subpoena

shall (A) state the name ofthe court issuing t he s ubpoena,

(B) state the name of the court where the action is pending,

(C) command the recipient to produce documents for

inspection or copying at a specified time and place, and (D)

set forth the text of two subdivisions of the Rule. The

referenced subdivisions, Rule. 45(c)(and (d), provide in

pertinent part that the party responsible for the issuance of

the s ubpoena s hall t ake reasonable s teps to a void i mposing

undue burden or expense on the person served, and that the

person served may make timely objection. On timely motion

made the court may modify or quash the subpoena if it (a)

fails to allow reasonable time for compliance, or (b) requires

a non-party to travel more than 100 miles.

Timeliness of Mr. Deese's objection.

Before addressing the merits, the court must consider

whether the motion for protective order served on November

10,2004 was timely. Rule 45(c)(2)(B) provides that a person

served with a subpoena may object within 14 days, or within

the time provided for responding, whichever is less. The

subpoena was served, if it was served (as will be discussed

below), on September 21, 2004 and provided ten days to

object. Rule 6 provides that where the subpoena was served

by mail, as was done here, three days are added, and where

the period of time allowed is less than 11 days, as it was in

this case, intervening week-ends and legal holidays are

excluded. Since there were two intervening week-ends, the

time for objecting was extended to October 8, 2004.

Rule 6 further provides that the time for responding may

be enlarged by the court where the failure “» act was the

result of excusable neglect. The court judicialry knows that

27a

APPENDIX D

the Southern District of Alabama and the western part of the

Northern District of Florida, including the Panama City,

Pensacola, and Mobile areas, were hit by a category 3 or 4

storm, Hurricane Ivan, on September 16, 2004, five days

before the subpoena was served. Mr. Deese's counsel, Ms.

Posey, represented at the hearing, and defendant's counsel

did not contend otherwise, that due to storm damage, the loss

of communications, and the extraordinary circumstances

surrounding recovery efforts necessitated by the storm, Mr.

Deese was unable to make contact with her until early

October. Ms. Posey says that rather than file an objection

after consultation, she tried unsuccessfully to contact

defendant's counsel to attempt to work out a compromise on

the breadth and scope of the discovery requested. Then, on

October 11, because Mr. Tunstall had earlier told her that he

would communicate with her only through the mail,’ she

mailed letters to each of Mr. Tunstall's addresses in Mobile,

objecting to the subpoena, pointing out its various technical

defects ( discussed b elow), and o ffering to tryto cometoa

mutual agreement on how the defendant's requests could be

satisfied expeditiously and without undue cost. The letters

were returned unclaimed after attempted delivery by the

Postal Service on October 12, 16, 21, 27, 31 and November

2. (Witness exhibits 3 and 4). The two attorneys did manage

to consult by telephone on October 18 and seemingly reached

an agreement, but the confirmatory letter sent by defendant's

counsel, and an apparent follow-up sent on November 9 did

not agree with Ms. Posey’s understanding of the agreement,

and she so informed Mr. Tunstall by letter of that same date.

Then, without responding and further consultation, Mr.

Tunstall filed the instant motion to compel.

In an earlier proceeding in the district where the action

' This was a disappointing reflection on his civility and

professionalism that Mr. Tunstall made no effort to contest.

28 a

APPENDIX D

is pending, Magistrate Judge Cassady found that what appear

to be identical or nearly identical requests directed to another

witness were overbroad, quashed the subpoena, directed Mr.

Tunstall to narrow his requests, found that Mr. Tunstall had

not taken reasonable steps to avoid placing a burden on the

witness, and sanctioned him. What is noteworthy about this

is its timing. The hearing before Judge Cassady was held on

October 14, 2004, immediately before Ms. Posey started

attempting to accomplish a similar result. By the time the

October 14 hearing was over Mr. Tunstall was clearly aware

that his requests were overbroad, and that he had not taken

reasonable steps to avoid placing a burden on Mr. Deese or

FECI. Yet the next day, and four times thereafter, he refused

delivery of correspondence from an attorney with whom he

refused to communicate on the telephone.

Given the foregoing circumstances, the court concludes

that Mr. Deese's objections to the subpoena were not

untimely. Although it would have been the better practice for

Ms. Posey to have filed her objections and then tried to work

out a settlement, the extraordinary conditions that existed in

the aftermath of Hurricane Ivan, combined with Mr.

Tunstall's transparently unreasonable but successful efforts to

refuse communication after having learned from Judge

Cassady that his requests were overbroad and failed to

minimize the burden on the witness, followed by his

continued insistence, even in thts court, that the subpoena be

enforced as presented, and further followed by his filing the

instant motion without further consultation, excuse Ms.

Posey's failure. While this is not precisely the excusable

neglect the rule requires, it can accurately be described as

excusable entrapment, under these circumstances a

distinction without a difference.

29a

APPENDIX D

Merits.

The court will now turn to the merits of defendant’s

motion to compel. It will be denied for the following

reasons:

]. There is no proof that the subpoena was properly

served.

The mail receipt counsel attached to his motion shows

that a letter, presumably containing the subpoena, was

delivered to “R. Harold Deese” on September 21, 2004 and

signed for by "A. Stevens." In his motion to compel

defendant asserts that he served a subpoena on "Fire

Engineering Consultants, Inc. / Harold Deese." However, the

subpoena was not addressed to Harold Deese, but rather to

FECI. There is no proof in the limited record before this

court that the subpoena was served on the corporation. The

record contains nothing to indicate definitively that Harold

Deese is an officer or director of the corporation or is

otherwise authorized to accept service in its behalf.

Moreover, defendant's motion makes repeated reference to

claimed attempts to arrange with counsel for "Mr. Deese"

(but not for FECI) to resolve the production issue. To

complicate the matter further, the only party appearing here

in opposition to the motion to compel is R. Harold Deese, but

he does not concede that he was ever served with a subpoena

directed to him individually. Thus, whether he was served is

unclear. Without more, this court cannot say for certain that

a subpoena was served on either non-party witness. For that

reason alone defendant, who has the burden, has failed to

show that production should be compelled.

2. The subpoena was not in proper legal form.

Contrary to the Rule 45 requirements outlined above,

30a

APPENDIX D

the subpoena does not state the name of the court in which

the action is pending, the Southern District of Alabama.

More critically, is does not "set forth the text of subdivisions

(c) and (d) of the Rule. Those subdivisions deal with

protection and duties of the subpoenaed party, and outline

that person's nghts and obligations in seeking relief.

Moreover, the subpoena commands production for inspection

and copying documents (discussed in more detail below) at a

specified place, date and time. The "Place" is not described.

The Place is seemingly qualified by an entry reading "Or If

by Mail: [at defendant's counsel's address in Mobile,

Alabama]." The date and time are "Within 10 days of receipt

of this subpoena." For all that appears, therefore, the non-

party's only option was to take the documents to Mobile, or

to mail them there, within ten days. The non-party was not

instructed on how it could object, and pointedly was not told

that it could seek relief if it was given insufficient time to

respond or if it were required to travel more than 100 miles.

The court judicially knows that Panama City, Florida is more

than 150 miles from Mobile, Alabama.

3. The subpoena was not accompanied by fees or

expenses.

Tender of a witness fee and mileage is required where a

subpoena requires a witness to appear, and failure to do so

renders the subpoena invalid. CF& J Steel Corporation vy.

Mitsui & Co. (USA), Inc., 713 F.2d 494 (9th Cir. 1983). No

witness fee is required for document production, however,

but the rule clearly contemplates only document production,

not appearance for document delivery. (A subpoena shall

"command each person to whom it is directed ... to produce

for inspection and copying of designated books, documents

or tangible things....". Rule 45(a)(1)(C)). It further

contemplates that the production take place where the records

3la

APPENDIX D

are held. (The subpoena is issued in the name of the court in

the "district in which . . . production is compelled." Rule

45(a)(3)). The challenged subpoena was issued in the name

of this c ourt b ecause the records in question are | ocated in

this district. As shown above, however, production was not,

“compelled” in this district. It was compelled in Mobile,

Alabama. No fees or expenses were tendered for appearance

in or travel to Mobile, or for mailing and copying, so the

subpoena was invalid.

4. The requests are burdensome and overbroad.

___The subpoena directed the corporate non-party to produce

documents described in 27 paragraphs beginning with "any

and all documents or objects that mention, refer, reflect or

relate to" etc., all without reference to time, other than one

request seeking documents from 1986 to the present. One

request seeks documents related to financial arrangements

with certain named individuals and entities and their

"paralegals, secretaries, [&] employees." How financial

arrangements with clerical personnel relates to this action has

not been explained. Although this court has not been made

privy to all the possible ramifications of producing the listed

documents, defendant is apparently requesting files and

records of every matter relating to fire investigations ever

done by Fire Engineering Consultants, Inc. for or in concert

with literally dozens of entities and persons without regard to

time or geographical location. Mr. Tunstall has not pointed

to any meaningful difference between this subpoena and the

one found by Judge Cassady to have been overbroad, nor has

he made any effort to explain how the circumstances in this

proceeding are meaningfully different.

5. The instant motion was untimely.

Defendant's motion to compel was filed in this court on

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APPENDIX D

October 26, 2004. : Discovery in the underlying case ended

October20, and the court's scheduling order required that all

motions to compel be filed on or before that date. Mr.

Tunstall says he attempted to telefax his motion to this court

on October 20 and was told by a deputy clerk here that he

could do so and then mail his pleadings. That may be so, but

there is no fax in the file, this c ourt does not accept faxed

filings without leave of the presiding judge, and the clerk

does not have authority to extend deadlines, much less

deadlines imposed in another district.

Disposition

Where there are defects in a subpoena that can be cured

by amendment and reservice, the better practice is to allow

the requesting party that opportunity. However,sthis court

will not extend the discovery deadline imposed by the court

where the action is pending. If defendant wants further relief,

his only resort is to seek it there. Therefore, the motion to

compel should be denied in its entirety without leave to serve

an amended subpoena unless such relief is granted by the

United States District Court for the Southern District of

Alabama.

Sanction.

The court finds that Mr. Tunstall! has failed to serve a

valid subpoena, failed to take reasonable steps to avoid

placing a burden on Mr. Deese, failed to cooperate in the

resolution of the issues raised here, and otherwise failed to

act professionally. Ms. Posey requests fees and costs for

resisting the subpoena. Given the lateness of her objections

the court would ordinarily not be inclined to grant that

request. However, since it appears that this entire controversy

was initiated and prolonged by Mr. Tunstall's actions, and

because the lateness was largely caused by Mr. Tunstall's

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APPENDIX D

efforts at delay, the request will be granted.

Accordingly, it is ORDERED as follows:

-

Defendant Matthew Leath Cochran's motion to

compel (doc. 1) is DENIED.

R. Harold Deese's motion for protective order (doc.

2) is GRANTED.

R. Harold Deese shall file, within ten days of the

receipt of this order, admissible evidence of the

actual expenses that he incurred in obtaining the

relief granted in this order. Mr. Tunstall shall then

have ten days to file evidence in opposition. The

court will then take the issue of the amount of the

monetary sanction under advisement without a

hearing.

DONE AND ORDERED at Pensacola, Florida this 9th

day of December, 2004.

/s/Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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APPENDIX E

IN THE UNITED STATES COURT OF APPEAL

FOR THE ELEVENTH CIRCUIT

U.S.COURT-OFAPPEALS

ELEVENTH CIRCUIT

DEC 27 2006

THOMAS K. KAHN

CLERK

THE CINCINNATI INSURANCE COMPANY,

Plaintiff,

R. HAROLD DEESE,

Interested

Party-Appellee,

versus

MATTHEW LEATH COCHRAN,

FOREIGN AUTO PARTS OF MOBILE INC.,

PROFESSIONAL ENGINE SERVICE OF MOBILE,

Defendants-Appellants,

STEPHEN M. TUNSTALL

Appellant.

Appeal from the United States District Court for the

Northern District of Florida

Stephen M. Tunstall's motion to supplement the

record on appeal to include his affidavit is denied.

/S/ J. L. EDMONDSON

CHIEF JUDGE

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APPENDIX F

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 05-15461-AA

Filed

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 27 2006

THOMAS K. KAHN

CLERK

THE CINCINNATI INSURANCE COMPANY,

Plaintiff,

R. HAROLD DEESE,

Interested Party-Appellee,

versus

MATTHEW LEATH COCHRAN,

FOREIGN AUTO PARTS OF MOBILE INC.,

PROFESSIONAL ENGINE SERVICE OF MOBILE,

Defendants-Appellants,

STEPHEN M. TUNSTALL

Appellant.

On Appeal from the United States District Court for the

Northern District of Florida

BEFORE: EDMONDSON, Chief Judge, ANDERSON and

BIRCH, Circuit Judges.

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APPENDIX F

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge in

regular active service on the Court having requested that the

Court be polled on rehearing en bane (Rule 35, Federal Rules

of Appellate Procedure), the Petition(s) for Rehearing En

Bane are DENIED.

ENTERED FOR THE COURT:

/S/ J. L. EDMONDSON

CHIEF JUDGE ORD-42

(2/05)

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APPENDIX G

Federal Rules of Civil Procedure Rule 45

Rule 45.Subpoena

(a) Form; Issuance.

(1) Every subpoena shall

(A) state the name of the court from which it is issued;

and

(B) state the title of the action, the name of the court in

which it is pending, and its civil action number; and

(C) command each person to whom it is directed to

attend and give testimony or to produce and permit

inspection, copying, testing, or sampling of designated

books, documents, electronically stored information, or

tangible things in the possession, custody or contro] of

that person, or to permit inspection of premises, at a

time and place therein specified; and

(D) set forth the text of subdivisions (c) and (d) of this

rule.

A command to produce evidence or to permit

inspection, copying, testing, or sampling may be joined

with a command to appear at trial or hearing or at

deposition, or may be issued separately. A subpoena

may specify the form or forms in which electronically s

tored information is to be produced.

(2) A subpoena must issue as follows:

(A) for attendance at a trial or hearing, from the court

for the district where the trial or hearing is to be held;

(B) for attendance at a deposition, from the court for the

district where the deposition is to be taken, stating the

method for recording the testimony; and

(C) for production, inspection, copying, testing, or

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APPENDIX G

sampling, if separate from a subpoena commanding a

person's attendance, from the court for the district where

the production or inspection is to be made.

(3) The clerk shall issue a subpoena, signed but otherwise in

blank, to a party requesting it, who shall complete it before

service. An attorney as officer of the court may also issue

and sign a subpoena on behalf of

(A) a court in which the attorney is authorized to

practice; or

(B) a court for a district in which a deposition or

production is compelled by the subpoena, if the

deposition or production pertains to an action pending in

a court in which the attorney is authorized to practice.

(b) Service.

(1) A subpoena may be served by any person who is not a

party and is not less than 18 years of age. Service of a

subpoena upon a person named therein shall be made by

delivering a copy thereof to such person and, if the person's

attendance is commanded, by tendering to that person the

fees for one day's attendance and the mileage allowed by law.

When the subpoena is issued on behalf of the United States

or an officer or agency thereof, fees and mileage need not be

tendered. Prior notice of any commanded production of

documents and things or inspection of premises before trial

shall be served on each party in the manner prescribed by

Rule 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph

(c)(3)(A) of this rule, a subpoena may be served at any place

within the district of the court by which it is issued, or at any

place without the district that is within 100 miles of the place

of the deposition, hearing, trial, production, inspection,

copying, testing, or sampling specified in the subpoena or at

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APPENDIX G

any place within the state where a state statute or rule of

court permits service of a subpoena issued by a state court of

general jurisdiction sitting in the place of the deposition,

hearing, trial, production, inspection, copying, testing, or

sampling specified in the subpoena. When a statute of the

United States provides therefore, the court upon proper

application and cause shown may authorize the service of a

subpoena at any other place. A subpoena directed to a

witness in a foreign country who is a national or resident of

the United States shall issue under the circumstances and in

the manner and be served as provided in Title 28 U. S.C, §

1783.

(3) Proof of service when necessary shall be made by filing

with the clerk of the court by which the subpoena is issued a

statement of the date and manner of service and of the names

of the persons served, certified by the person who made the

service.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and

service of a subpoena shall take reasonable steps to avoid

imposing undue burden or expense on a person subject to that

subpoena. The court on behalf of which the subpoena was

issued shall enforce this duty and impose upon the party or

attorney in breach of this duty an appropriate sanction, which

may include, but is not limited to, lost earnings and a

reasonable attorney's fee.

_(2)(A)_ A person commanded to produce and permit

inspection, copying, testing, or sampling of designated

electronically stored information, books, papers, documents

or tangible things, or inspection of premises need not appear

in person at the place of production or inspection unless

commanded to appear for deposition, hearing or trial.

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APPENDIX G

(B) Subject to paragraph (d)(2) of this rule, a person

commanded to produce and permit inspection, copying,

testing, or sampling may, within 14 days after service of the

subpoena or before the time specified for compliance if such

time is less than 14 days after service, serve upon the party or

attorney designated in the subpoena written objection to

producing any or all of the designated materials or inspection

of the premises -- or to producing electronically stored

information in the form or forms requested. If objection is

made, the party serving the subpoena shall not be entitled to

inspect, copy, test, or sample the materials or inspect the

premises except pursuant to an order of the court by which

the subpoena was issued. If objection has been made, the

party serving the subpoena may, upon notice to the person

commanded to produce, move at any time for an order to

compel the production, inspection, copying, testing, or

sampling. Such an order to compel shall protect any person

who Is not a party or an officer of a party from significant

expense resulting from the inspection, copying, testing, or

sampling commanded.

(3)(A) On timely motion, the court by which a subpoena was

issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance;

(ii) requires a person who is not a party or an officer of a

party to travel to a place more than 100 miles from the

place where that person resides, is employed or

regularly transacts business in person, except that,

subject to the provisions of clause (c)(3)(B)(ii1) of this

rule, such a person may in order to attend trial be

commanded to travel from any such place within the

state in which the trial is held;

(iii) requires disclosure of privileged or other protected

matter and no exception or waiver applies; or

(iv) subjects a person to undue burden.

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APPENDIX G

(B) If a subpoena

(i) requires disclosure of a trade secret or other

confidential research, development, or commercial

information, or

(ii) requires disclosure of an unretained expert's opinion

or information not describing specific events or

occurrences in dispute and resulting from the expert's

study made not at the request of any party, or

(iii) requires a person who is not a party or an officer of

a party to incur substantial expense to travel more than

100 miles to attend trial, the court may, to protect a

person subject to or affected by the subpoena, quash or

modify the subpoena or, if the party in whose behalf the

subpoena is issued shows a substantial need for the

testimony or material that cannot be otherwise met

without undue hardship and assures that the person to

whom the subpoena is addressed will be reasonably

compensated, the court may order appearance or

production only upon specified conditions.

(d) Duties in Responding to Subpoena.

(1)(A) A person responding to a subpoena to produce

documents shall produce them as they are kept in the usual

course of business or shall organize and label them to

correspond with the categories in the demand.

(B) If a subpoena does not specify the form or forms for

producing electronically stored information, a person

responding to a subpoena must produce the information in a

form or forms in which the person ordinarily maintains it or

in a form or forms that are reasonably usable.

(C) A person responding to a subpoena need not produce the

same electronically stored information in more than one

form.

(D) A person responding to a subpoena need not provide

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APPENDIX G

discovery of electronically stored information from sources

that the person identifies as not reasonably accessible

because of undue burden or cost. On motion to compel

discovery or to quash, the person from whom discovery is

sought must show that the information sought is not

reasonably accessible because of undue burden or cost. If that

showing is made, the court may nonetheless order discovery

from such sources if the requesting party shows good cause,

considering the limitations of Rule 26(b)(2)(C). The court

may specify conditions for the discovery.

(2)(A) When information subject to a subpoena is withheld

on a claim that it is privileged or subject to protection as

trial-preparation materials, the claim shall be made expressly

and shall be supported by a description of the nature of the

documents, communications, or things not produced that is

sufficient to enable the demanding party to contest the claim.

(B) If information is produced in response to a subpoena that

is subject to a claim of privilege or of protection as trial-

preparation material, the person making the claim may notify

any party that received the information of the claim and the

basis for it. After being notified, a party must promptly

return, sequester, or destroy the specified information and

any copies it has and may not use or disclose the information

until the claim is resolved. A receiving party may promptly

present the information to the court under seal for a

determination of the claim. If the receiving party disclosed

the information before being notified, it must take reasonable

steps to retrieve it. The person who produced the information

must preserve the information until the claim is resolved.

(e) Contempt. Failure of any person without adequate

excuse to obey a subpoena served upon that person may be

deemed a contempt of the court from which the subpoena

issued. An adequate cause for failure to obey exists when a

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APPENDIX G

subpoena purports to require a nonparty to attend or produce

at a place not within the limits provided by clause (ii) of

subparagraph (c)(3)(A).