United States District Court, M.D. Pennsylvania
CRYSTAL GRIMSLEY, Individually and as Administratrix of THE ESTATE OF RICKIE L. GRIMSLEY, Plaintiff
THE MANITOWOC COMPANY, INC., et al., Defendants
William W. Caldwell United States District Judge
this court is a motion by Defendant Grove U.S. L.L.C.
(“Grove”) to obtain a protective order or to
quash a third-party subpoena directed to its purported
workers' compensation insurance carrier, Sentry Insurance
Company (“Sentry”). (Doc. 41). The subpoena seeks
production of documents from Sentry's workers'
compensation claim file, which pertains to a crane accident
resulting in the death of Plaintiff Crystal Grimsley's
late husband, decedent Rickie L. Grimsley. (Doc.44-1 at 4).
Grove argues that it has standing to file this motion because
it is insured by Sentry and has an interest in the subject
matter of the subpoena, and that Sentry's workers'
compensation file may contain documents protected by
attorney-client privilege or the work product doctrine. (Doc.
42 at 7-11). Grove contends that documents from the
workers' compensation claim file should first be screened
by its lawyers so that Grove may withhold and identify in a
privilege log any potentially privileged documents. Because
Grove has not met its respective burdens to establish
standing or to assert privilege over unspecified documents in
Sentry's claim file, we will deny its motion.
29, 2015, Plaintiff, individually and as executrix of
decedent's estate, filed a complaint in this court
against Defendants The Manitowoc Company, Inc.
(“Manitowoc”), Manitowoc Crane Companies, LLC
(“MCC”), Manitowoc Cranes, LLC (“Manitowoc
Cranes”), Grove, and Kyle Mellott
(“Mellott”). (Doc. 1). According to the complaint,
the Corporate Defendants form a chain of ownership: Grove is
owned by Manitowoc Cranes, which is owned by MCC, which is
owned by Manitowoc; in other words, Grove, Manitowoc Cranes,
and MCC are, directly or indirectly, wholly owned
subsidiaries of Manitowoc. (See id. ¶¶
29-36). The complaint brings negligence, wrongful death, and
survival claims against all Defendants, as well as strict
liability claims against the Corporate Defendants.
(Id. ¶¶ 68-90).
lawsuit arises from a crane accident on August 29, 2013,
which resulted in decedent's death
(“Incident”). (See id. ¶ 1). The
complaint alleges that at around 2:40 p.m. that day, decedent
was working as a heavy-equipment mechanic and acting as a
yard signalman at a Manitowoc crane manufacturing facility in
Shady Grove, Pennsylvania (“Facility”) when a
crane driven by Mellott, who was not licensed to operate
cranes, was being moved to an open lot on the Facility and
turned too sharply, striking and killing decedent as a result
of being crushed between the moving crane and another parked
crane. (See id. ¶¶ 1, 9, 51-64). Decedent
was fifty-nine years old and had worked at the Facility for
more than twenty-five years. (Id. ¶ 9). As
alleged in the complaint, the record owner of the
Facility's property was Grove, but the Facility bore
Manitowoc's name and was “held out to the
public” as one of Manitowoc's regional
headquarters. (Id. ¶¶ 9, 19, 23-26). The
complaint does not contain allegations as to decedent's
employer, but alleges that Mellott was employed by Manitowoc.
(Id. ¶ 41-43).
September 8, 2015, Defendants moved to dismiss the complaint,
arguing that they were immune from suit under various
provisions of Pennsylvania's Workers' Compensation
Act (“PWCA”), see 77 P.S. §§
72, 481(a). (Docs. 8 & 10). On October 29, 2015, we
granted each of Defendants' motions and dismissed the
complaint in its entirety. (Doc. 17). First, we dismissed the
complaint as to Grove, finding that it was entitled to
immunity under PWCA § 481(a) because “the
allegations in the complaint suggest that Grove was
[decedent]'s employer at the time of the
[I]ncident.” (Doc. 16 at 7). Second, we perceived
language in the complaint highlighting the Manitowoc
Defendants' dominion and control over Grove as an
allegation that the Manitowoc Defendants and Grove were a
single entity; therefore, we interpreted the complaint as an
attempt to pierce the corporate veil under an alter-ego
theory against the Manitowoc Defendants and dismissed the
complaint as to those Defendants, surmising that, under the
circumstances, the Pennsylvania Supreme Court would grant
immunity to each Manitowoc Defendant because they qualified
as an “employer, ” along with Grove, under §
481(a). (Id. at 7-10). Finally, we dismissed the
complaint as to Mellott, finding that he was immune from suit
under PWCA § 72 because he and decedent were
“fellow employees.” (Id. at 12).
November 19, 2015, Plaintiff filed a motion for
reconsideration, arguing that this court erred by finding
Grove was decedent's employer; by reading into the
complaint an alter-ego theory that was not pleaded; and by
treating the Corporate Defendants as a single entity that was
entitled to immunity under PWCA. (Docs. 18 & 19). On
January 4, 2016, we denied Plaintiff's motion, finding
that, even if we committed error in concluding that Grove was
decedent's employer, our conclusions as to
Defendants' immunity “required the same result
given that neither the allegations in the complaint nor
Plaintiff's arguments reasonably suggested that an entity
other than the named Corporate Defendants employed [decedent]
at the [F]acility.” (Doc 22 at 3). We found dismissal
of the complaint without leave to amend proper “because
no matter how the case was pleaded . . . [Defendants] would
be cloaked with immunity.” (Id.) On January
27, 2016, Plaintiffs appealed our decisions to the Third
Circuit. (Doc. 23).
January 10, 2017, the Third Circuit reversed our decision
granting Defendants' motions to dismiss, reinstated the
complaint as to all Defendants, and remanded for further
proceedings. Grimsley v. Manitowoc Co., Inc., 675
F.App'x 118, 119 (3d Cir. 2017). First, the panel
reversed our determination that Grove was decedent's
employer, finding that “[e]ven if select facts
‘suggest that Grove was [decedent's]
employer at the time of the [I]ncident, ' those facts do
not establish that Grove is subject to dismissal as a matter
of law.” Id. at 121. Next, because we
“erred in according immunity to Grove, ” the
panel also held that it was error for us to extend that
immunity to the Manitowoc Defendants, and to find Mellott to
be decedent's co-employee. See id. & n.4.
Finally, “to clarify the nature of the claims that
remain, ” the panel added that “[a] fair reading
of the [c]omplaint discloses that [P]laintiff sued the
Manitowoc [Defendants] on a direct participation theory,
” and that we therefore “incorrectly
characterized plaintiff's claims” as attempting to
pierce the corporate veil. Id. at 121-22. To the
extent the complaint alleged that the Manitowoc Defendants
exercised dominion and control over Grove, the panel stated
that Plaintiff is master of her complaint, has
“repeatedly insisted” that she will not pursue
alter-ego liability, and “should simply be estopped
from making a veil-piercing argument in any further
proceeding.” Id. at 122.
filed their answers to the complaint on March 2, 2017. (Docs.
35 & 36). In their answer, the Manitowoc Defendants
denied being Mellott's or decedent's employer on the
day of the Incident. (Doc. 36 ¶ 25). In a separate
answer, Grove admitted that it was Mellott's and
decedent's employer and that Mellott was driving a crane
without a crane operator's license, but denied that
Mellott was required to carry such a license while driving-as
opposed to “operating”-a crane. (Doc. 35
¶¶ 25, 35, 41, 53). Grove also denied that
Manitowoc controlled any manner or method of work done at the
Facility, and averred that decedent “put himself in the
blind spot of the crane being driven by [Mellott] . . . and
despite being told by another employee to move, unfortunately
failed to do same, and was struck by the crane.”
(Id. at ¶¶ 39, 56).
case proceeded to discovery and, on April 20, 2017, Plaintiff
noticed Defendants of her intent to serve third-party
subpoenas on various entities pursuant to Federal Rule of
Civil Procedure 45. (Doc. 42-2 at 2). One of the subpoenas
was directed to Sentry and requested that Sentry produce
“any and all documents, including correspondence with
the insured relating to” Sentry's workers'
compensation claim file and its third-party liability
insurance claim file. (Id. at 4). The subpoena did
not identify who the “insured” was for each claim
file, but identified the claim number and date of the
Incident attached to each claim. (Id.)
April 24, 2017, upon receiving the third-party subpoena,
Defendants' counsel, who represents all Defendants in
this action, expressed his intent to file a motion for a
protective order on Grove's behalf. (Doc. 42-3).
Alternatively, Defendants' counsel proposed that
Plaintiff allow Sentry to produce each claim file to him to
be screened for documents potentially protected by
attorney-client privilege or the work product doctrine, and
then have Defendants' counsel produce any discoverable
documents to Plaintiff along with a privilege log.
(See Doc. 42 at 3). On May 1, 2017, Plaintiff's
counsel agreed to Defendants' proposal as to Sentry's
third-party liability insurance claim file, believing Grove
to be insured by Sentry with respect to that claim, but did
not agree with respect to Sentry's worker's
compensation claim file, arguing that Sentry's
workers' compensation coverage “is wholly separate
from” any third-party liability coverage that Sentry
provides for Grove. (Doc. 42-4). Plaintiff sent Defendants a
modified third-party subpoena requesting that Sentry produce
all documents, including correspondence with Sentry's
insured, relating only to Sentry's workers'
compensation claim file. (Doc. 42-5).
2, 2017, a case management conference was held with the
parties, during which this court was notified of the
discovery dispute. On May 9, 2017, Grove filed the instant
motion under Federal Rules of Civil Procedure 26(c) and
45(d)(3) for a protective order or to quash the modified
third-party subpoena to Sentry regarding documents in
Sentry's workers' compensation claim file. (Doc. 41).
In its motion, Grove argues that it is insured by Sentry for
workers' compensation and that Sentry's claim file
may contain documents protected by attorney-client privilege
or the work product doctrine. (Doc. 42 at 7-11). Plaintiff
argues that Grove does not have standing to challenge the
third-party subpoena because Manitowoc is Sentry's
“insured” for workers' compensation coverage.
(Doc. 44 at 18-20). Plaintiff contends that Grove conflates
third-party liability insurance coverage it has been provided
by Sentry “with the wholly separate workers'
compensation insurance coverage provided by Sentry . . . to
[Manitowoc].” (Id. at 21).
Rule of Civil Procedure 45 “establishes the rules for
discovery directed to individuals and entities that are not
parties to the underlying lawsuit.” First Sealord
Sur. v. Durkin & Devries Ins. Agency, 918 F.Supp.2d
362, 382 (E.D. Pa. 2013). “A subpoena under Rule 45
‘must fall within the scope of proper discovery under
[Federal Rule of Civil Procedure] 26(b)(1).'”
Id. (quoting OMS Invs., Inc. v. Lebanon Seaboard
Corp., No. 08-2681, 2008 WL 4952445, at *2 (D.N.J. Nov.
18, 2008)). Under Rule 45, it is within the sound discretion
of district courts to “ensure compliance with
subpoenas, while avoiding unfair prejudice to persons who are
the subject of a subpoena's commands.” Audi of
Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., No.
3:16-CV-2470, 2017 WL 2212505, at *1 (M.D. Pa. May 17, 2017).
Plaintiff seeks to issue a third-party subpoena to Sentry
requesting production of its workers' compensation claim
file related to the Incident. (Doc. 44-1 at 4). The parties
do not appear to contest that information in the claim file
falls within the proper scope of discovery pursuant to Rule
26(b)(1). (Docs. 41 ¶¶ 11-12 & 44 at 8).
However, Grove moves to obtain a protective order or quash
the third-party subpoena, claiming that it is insured by
Sentry for workers' compensation and holds a personal
right or privilege over unspecified documents in the claim
file. (Doc. 42 at 7-11). The instant motion thus boils down
to (1) who is “insured” by Sentry for
workers' compensation pursuant to Plaintiff's
third-party subpoena; and (2) whether an insured party to
litigation has standing to obtain a protective order or quash
a third-party subpoena directed to its purported workers'
compensation insurance carrier by asserting claims of
attorney-client privilege or work product over unspecified
documents in its insurer's claim file. Because Grove
fails to supply sufficient information to answer these
questions, we will deny its motion.
Rule of Civil Procedure 45(d)(3)(A) requires a court, upon
motion, to quash or modify a subpoena that, among other
things, “requires disclosure of privileged or other
protected matter, if no exception or waiver applies.”
Fed.R.Civ.P. 45(d)(3)(A). The party moving to quash such a
subpoena “bears a ‘heavy burden' of
demonstrating that an enumerated basis for quashing the
subpoena exists.” Malibu Media, LLC v. Doe,
No. 4:15-CV-2281, 2016 WL 524248, at *2 (M.D. Pa. Feb. 10,
alternative to a motion to quash a third-party subpoena under
Rule 45, a party may also seek a protective order over
certain discovery requests pursuant to Federal Rule of Civil
Procedure 26(c). See Mun. Revenue Servs., Inc. v. Xspand,
Inc., No. 07-42, 2007 WL 1875793, at * 1 (E.D. Pa. June
27, 2007) (“[A]nalysis of Rule 45([d])(3)(A) motions is
similar to analysis of Federal Rule of Civil Procedure 26(c)
motions for a protective order.”). In pertinent part,
Rule 26(c)(1) provides:
A party or any person from whom discovery is sought may move
for a protective order . . . . The motion must include a
certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort
to resolve the dispute without court action. The court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
. . .
(D) forbidding inquiry into certain matters, or limiting the
scope of disclosure or discovery to ...