United States District Court, D. Colorado
LAMBLAND, INC. d/b/a A-1 Organics, Inc., a Colorado corporation, Plaintiff,
HEARTLAND BIOGAS, LLC, a Denver limited liability company, Defendant.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's objection to
the magistrate judge's order denying as moot its motion
to compel. (ECF No. 106.) For the reasons below, the
objection is overruled.
Court can modify or set aside a magistrate judge's order
on a nondispositive matter only if it is clearly erroneous or
contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a); Hutchinson v. Pfeil, 105 F.2d 562, 566 (10th
Cir. 1997). The Court must have “a definite and firm
conviction that a mistake has been committed.”
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458,
1464 (10th Cir. 1988) (quotation omitted).
Civ. P. 45(c)(2)(B) allows a party to seek an order to compel
the production of documents by a non-party. The party issuing
a subpoena must take reasonable steps to avoid imposing an
undue burden or expense on the entity subject to the
subpoena. Fed.R.Civ.P. 45(c)(1). The scope of discovery
allowed under Fed.R.Civ.P. 45 is governed by Fed.R.Civ.P.
26(b)(1), which requires production of “any
nonprivileged matter that is relevant to the party's
claim or defense and proportional to the needs of the
case.” “For good cause, the court may order
discovery of any matter relevant to the subject matter
involved in the action.” Id.
operated an organic recycling business, and Defendant
operated a solid waste facility. In August 2015, the parties
entered into lease and services agreements whereby Plaintiff
agreed to lease a portion of the facility and to provide
Defendant with organic materials for its operations. After
the Colorado Department of Public Health and Environment
(“CDPHE”) and the Board of County Commissioners
of Weld County (“BOCC”) shut down the facility,
Plaintiff sued Defendant (and another entity, later dismissed
from the case) for breach of contract and negligent
misrepresentation. The gist of Plaintiff's claims is that
Defendant misrepresented that it had a certificate of
designation (“CD”), which is a prerequisite for
running a waste facility in Colorado. See Colo. Rev.
Stat. § 30-20-102(1) (“Except as otherwise
specified in this section, a person who owns or operates a
solid wastes disposal site and facility shall first obtain a
certificate of designation from the governing body having
jurisdiction over the area in which such site and facility is
located.”). Defendant admits that it did not obtain a
CD from the BOCC. Defendant contends that the previous owner
transferred its CD to Defendant when it purchased the
facility in 2013 and that representations by the BOCC and the
CDPHE led Defendant to believe that it had a valid CD.
filed a designation of non-parties at fault (ECF No. 47)
identifying both the BOCC and the CDPHE, but it withdrew the
designation (ECF No. 101) when Plaintiff amended its
complaint and dismissed its negligent misrepresentation
claims (ECF No. 102). This discovery dispute concerns the
BOCC's refusal to produce all the documents requested by
a subpoena from Defendant. Although Defendant's motion to
compel production (ECF No. 74) was fully briefed (ECF Nos.
80, 82), the magistrate judge denied it as moot, citing the
dismissal of the negligent misrepresentation claims and the
withdrawal of the designation of non-parties at fault. (ECF
No. 103.) In the same order, the magistrate judge granted the
BOCC's motion for a protective order. (ECF No. 79.)
objects to the magistrate judge's ruling, arguing that
(1) the magistrate judge clearly erred by concluding that its
subpoena was issued solely to support its designation of
non-parties at fault, and (2) the requested documents are
relevant to its defenses against Plaintiff's breach of
contract claims. Although Plaintiff and the BOCC argue that
Defendant has waived any argument that the documents sought
are relevant for any purpose not specified in its prior
pleadings, the Court assumes that such arguments are not
waived for present purposes. Defendant has not shown the
information sought from the BOCC is relevant to the breach of
contract claims, and therefore the Court discerns no basis
for finding the magistrate judge's order is clearly
erroneous or contrary to law.
prevail on its breach of contract claims, Plaintiff needs to
show (1) the existence of the contracts, (2) its own
substantial performance, (3) Defendant's failure to
perform, and (4) resulting damages. See W. Distrib. Co.
v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). Plaintiff
contends that Defendant breached its obligations under the
lease and services agreements by operating its facility
without complying with applicable laws, including the
requirement to obtain a CD. Defendant concedes that it did
not apply for a CD but argues that it obtained one from the
previous owner of the facility, who transferred its CD to
Defendant. But Defendant cites no authority for the
proposition that the previous owner of the facility could
have transferred its CD to Defendant consistent with Colorado
law. To the contrary, Plaintiff and the BOCC have cited
authority establishing that “a certificate to operate a
particular site and facility is personal and nontransferrable
without prior approval.” City & Cty. of Denver
v. Eggert, 647 P.2d 216, 226 (Colo. 1982). In the
absence of any authority to support its position that it
could have obtained a valid CD by some other means, Defendant
has not shown there is any dispute that it did not have a CD.
Nor has Defendant shown that any of the information it seeks
from the BOCC makes the existence of any fact of consequence
to the determination of Plaintiff s breach of contract claims
more or less probable. See Fed. R. Evid. 401. Thus,
Defendant has not met its burden of showing that the
magistrate judge's ruling is clearly erroneous or
contrary to law.