Lynch v. Burnett

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 PAUL ANTHONY LYNCH, Case No.: 18-cv-01677-DMS (JLB) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. REQUEST TO SERVE FED. R. CIV. P. 45 SUBPOENAS 14 KEVIN BURNETT, et al., 15 Defendants. [ECF No. 73] [18] 19 On or about July 22, 2020, Plaintiff, who is proceeding pro se and in forma pauperis 20 in this matter, submitted along with other filings a request that the Court direct the U.S. 21 Marshals Service to serve trial subpoenas. (ECF No. 73 at 8.) Plaintiff attaches fifteen 22 (15) state court Civil Subpoenas for Personal Appearance at Trial or Hearing to her request, 23 claiming that the named individuals are witnesses who “can and will testify to the injuries 24 that Plaintiff sustained on August 8, 2017.” (Id. at 8–38.) The subpoenas request the 25 witnesses’ attendance on March 22, 2021, at 9:00 AM, the date trial in this case is currently 26 scheduled to commence before the Honorable Dana M. Sabraw. (Id.; see also ECF No. 65 27 at 5.) Defendant filed an opposition to Plaintiff’s request. (ECF No. 76.) For the reasons 28 set forth below, Plaintiff’s request is DENIED. 1 I. LEGAL STANDARD 2 A subpoena may command a nonparty to “attend and testify” at a deposition, 3 hearing, or trial. Fed. R. Civ. P. 45(a). Because Federal Rule of Civil Procedure 45(b) 4 requires personal service of a subpoena, “[d]irecting the Marshal’s Office to expend its 5 resources personally serving a subpoena is not taken lightly by the court.” Alexander v. 6 Cal. Dep’t. of Corr., 2:08–CV–2773, 2010 WL 5114931 , at *3 (E.D. Cal. Dec. 9, 2010) 7 (internal quotation marks omitted) (citing Austin v. Winett, No. 1:04-cv-05104-DLB PC, [8] 2008 WL 5213414 , at *1 (E.D. Cal. Dec. 12, 2008); 28 U.S.C. § 1915 (d)); see also Fed. R. 9 Civ. P. 45(b). Limitations include the burden and expense to the non-party in responding 10 to the subpoena. Fed. R. Civ. P. 45(d)(1). “The Federal Rules of Civil Procedure were not 11 intended to burden a non-party with a duty to suffer excessive or unusual expenses in order 12 to comply with a subpoena . . . .” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991). 13 Non-parties are “entitled to have the benefit of th[e] Court’s vigilance.” Id.; see also 14 Alexander, 2010 WL 5114931 , at *3. 15 Pursuant to Rule 45, subpoenas requiring a person’s attendance require that the party 16 compelling the attendance tender fees for one day’s attendance and the mileage allowed by 17 law. Fed. R. Civ. P. 45(b)(1). The in forma pauperis statute does not waive payment of 18 these fees or expenses for witnesses. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) 19 (citing Tedder v. Odel, 890 F.2d 210 , 211–12 (9th Cir. 1989); 28 U.S.C. § 1915 ); see also 20 Garcia v. Grimm, No. 06-cv-225 WQH (PCL), 2012 WL 216565 , at *4 (S.D. Cal. Jan. 23, 21 2012). Thus, a plaintiff is required to tender witness and mileage fees for each of her 22 witnesses. See CF & I Steel Corp. v. Mitsui & Co. (U.S.A.), 713 F.2d 494, 496 (9th Cir. 23 1983) (“Rule 45(c) requires simultaneous tendering of witness fees and the reasonably 24 estimated mileage allowed by law with service of a subpoena.”). 25 II. DISCUSSION & CONCLUSION 26 Rule 45 provides that “[t]he clerk must issue a subpoena, signed but otherwise in 27 blank, to a party who requests it. That party must complete it before service. An attorney 28 also may issue and sign a subpoena if the attorney is authorized to practice in the issuing 1 court.” Fed. R. Civ. P. 45(a)(3). Plaintiffs subpoenas are signed by “Paul Anthony 2 || Lynch.” (ECF No. 73 at 9-38.) Although Plaintiff is proceeding pro se, she is not admitted 3 ||to practice law and is not an officer of the Court authorized to sign and issue a valid 4 ||subpoena. The proposed subpoenas were therefore never properly issued. See Fed. R. Civ. 5 ||P. 45(a)(3); see also Cramer v. Target Corp., No. 1:08-CV-1693-OWW-SKO, 2010 WL 6 || 1791148, at *1 (E.D. Cal. May 4, 2010) (noting that a pro se plaintiff was “not an officer 7 || of the Court authorized to sign and issue a subpoena pursuant to Fed. R. Civ. P. 45(a)(3)”); 8 || Gonzales v. Alameida, No. CV F 06 1417 OWW WMW P, 2008 WL 161996 , at *1 (E.D. 9 || Cal. Jan. 16, 2008) (“[A] party appearing in pro per can not issue a subpoena.”); Jackson 10 || v. Woodford, No. 05-cv-513 L(NLS), 2007 WL 2023551 , at *1, 3 (S.D. Cal. July 11, 2007) 11 ||(finding that subpoenas were not properly issued, where the clerk of court sent the 12 subpoena forms to a pro se plaintiff, but did not sign and issue the subpoenas). 13 As the subpoenas submitted were not properly issued, Plaintiff's request for service 14 DENIED. However, as trial approaches, Plaintiff may file a motion asking the Court: 15 (1) to issue Plaintiff federal subpoenas to appear and testify at a hearing or trial 16 in a civil action for the witnesses she establishes are relevant and necessary to 17 her case; 18 (2) to send Plaintiff U.S. Marshal Forms 285; and 19 (3) to direct the U.S. Marshal to serve the subpoenas. 20 || The Court will evaluate requests for subpoenas and, if appropriate, order the U.S. Marshal 21 ||to serve the subpoenas only if Plaintiff complies with the foregoing, properly completes 22 ||the subpoenas and U.S. Marshal forms, and tenders the required witness and mileage fees 23 || for each witness. 24 IT IS SO ORDERED. 25 ||Dated: September 14, 2020 > n. Jill L. Burkhardt 27 rited States Magistrate Judge