Champion Power Equipment Incorporated v. Generac Power Systems Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Champion Power Equipment Incorporated,
Plaintiff,
v.
Generac Power Systems Incorporated,
Defendant.
No. MC-25-00037-PHX-DWL
ORDER
Champion Power Equipment, Inc. (“Champion”) is the plaintiff in two related patent
infringement actions. The defendant in the first action, which Champion filed in the
District of Arizona in November 2023, is Firman Power Equipment Incorporated
(“Firman”). That action is assigned to the undersigned judge. The defendant in the second
action, which Champion filed in the Eastern District of Wisconsin in October 2024, is
Generac Power Systems, Inc. (“Generac”).
Earlier this year, as part of the Generac action, Champion served a deposition
subpoena on Greg Montgomery, an Arizona resident who worked for Champion from 2005
to December 2014, then worked briefly for Generac through at least April 2015, and then
joined Firman, where he continues to work. In response, Montgomery filed a motion to
modify the subpoena. See Champion Power Equip. Inc. v. Generac Power Sys. Inc., Case
No. 2:25-mc-00015-DWL (D. Ariz.), Doc. 1. Due to Montgomery’s status as an Arizona
resident, that motion was filed in the District of Arizona (the compliance court) rather than
in the Eastern District of Wisconsin (the issuing court). See Fed. R. Civ. P. 45(d)(3).
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Under Rule 45(f), the Court could have transferred Montgomery’s motion to the
Eastern District of Wisconsin after it was filed. The Court declined to do so, in part because
it raised scheduling issues that were likely to overlap with scheduling issues in the Firman
action. The Court ultimately ruled that “Champion’s deposition of Montgomery in the
Generac action shall be limited to the time period up to the point of Montgomery’s
departure from Generac; Champion’s deposition of Montgomery in the Firman action (if
any) shall be limited to the time period after Montgomery’s departure from Generac; and
Firman’s proposed stipulation in the Firman action to the admissibility of Montgomery’s
subpoenaed testimony from the Generac action is adopted.” See Champion Power Equip.
Inc. v. Generac Power Sys. Inc., Case No. 2:25-mc-00015-DWL (D. Ariz.), Doc. 14 at 3.
Now pending before the Court is another motion arising from Champion’s attempt
to depose Montgomery as part of the Generac action. In that motion, filed on September
29, 2025, Champion accuses Montgomery, Firman, and Generac of “improper
stonewalling” by refusing to make Montgomery available to be deposed “until they are
subjectively satisfied that Champion’s document production is complete.” (Doc. 1 at 1.)
Champion seeks an order compelling Montgomery, Firman, and Generac “to provide a date
certain for Mr. Montgomery’s deposition,” as well as an award of attorneys’ fees. (Id. at
8.)
In response, Montgomery defends what he describes as his “unremarkable position
that his deposition should occur after the documents relevant to his deposition have been
produced in the underlying litigations.” (Doc. 13 at 1.) Montgomery also discloses that
on October 8, 2025, Generac filed a motion in the Generac Action seeking two related
forms of relief: first, an order under Rule 37 compelling Champion to complete its
production of certain documents; and second, a protective order under Rule 26(c) delaying
Montgomery’s deposition until the requested document production is complete. (Doc. 13-
2.) In light of that filing, Montgomery argues that “[t]he Generac Court will resolve this
on the merits” and that “there is no reason Champion’s motion needs to be resolved on
procedure before the court in the Generac Lawsuit resolves the issues on the merits.” (Doc.
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13 at 9-10, capitalization omitted.)
In reply, Champion largely focuses on defending the merits of its position. (Doc.
14.) Champion acknowledges, however, that the issues raised in its motion overlap with
the issues raised in Generac’s pending motion in the Generac action—it argues that
Montgomery’s response “serves as nothing more than a vehicle to rehash Generac’s
arguments advanced in their Motion for Protective Order in the Eastern District of
Wisconsin”—and also acknowledges that “Montgomery’s actions are of key importance
in the Champion v. Generac matter in the Eastern District of Wisconsin.” (Id. at 1, 4.)
Champion does not directly address Montgomery’s contention that the judge overseeing
the Generac action should be the one to resolve the disputed issues on the merits, although
it observes in a footnote that “the Eastern District of Wisconsin does not have personal
jurisdiction over Mr. Montgomery,” that Montgomery “was properly served in Arizona for
a deposition in Arizona, where he resides,” and that “Generac filed its motion for protective
order only after Champion filed this Motion to Compel and pointed out Generac’s failure
to file such a motion.” (Id. at 1 n.1.)
Under these unusual circumstances, the Court concludes that Champion’s motion to
compel should be transferred to the Eastern District of Wisconsin so it may be resolved by
the judge overseeing the Generac action. The current dispute is unlike the previous dispute
over the Montgomery subpoena (which the Court declined to transfer and instead resolved)
for three reasons: first, it raises issues that overlap with a discovery motion currently
pending in the Generac action; second, those overlapping issues have the potential to upset
the discovery schedule in the Generac action, and are thus best resolved by the judge
overseeing that discovery schedule; and third, the non-party who is the subject of the
subpoena, Montgomery, has indicated that he wishes for the issuing court to resolve the
merits of the dispute. These considerations justify a transfer under Rule 45(f), which
provides that “[w]hen the court where compliance is required did not issue the subpoena,
it may transfer a motion under this rule to the issuing court if the person subject to the
subpoena consents or if the court finds exceptional circumstances.” See also Fed. R. Civ.
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P. 45, advisory committee note to 2013 amendments (noting that “transfer may be
warranted in order to avoid disrupting the issuing court’s management of the underlying
litigation”); Buffalo Seafood House LLC v. Republic Servs. Inc., 2024 WL 126038, *2 (D.
Ariz. 2024) (“The Court is further persuaded that transfer is appropriate here given that a
motion to compel is currently pending before the issuing court and that motion involves
Mr. Stuart’s alleged contractual obligations to sit for a deposition. Given the related nature
of the two motions, transfer would avoid the risk of inconsistent rulings and serve judicial
economy.) (cleaned up); Hall v. Marriott Int’l Inc., 2021 WL 3129598, *1 (N.D. Cal. 2021)
(“Ultimately, whether to transfer a subpoena-related motion is committed to the discretion
of the court where compliance is required.”).
Accordingly,
IT IS ORDERED that the Clerk is directed to transfer Champion’s motion to
compel (Doc. 1) to the Eastern District of Wisconsin and close this miscellaneous action.
Dated this 28th day of October, 2025.
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