Shook et al v. Indian River Transport Co.

Filing 76

ORDER signed by Senior Judge William B. Shubb on 2/3/17 GRANTING 65 MOTION to QUASH Trial Subpoena. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 13 14 TODD SHOOK, HERSCHEL BERRINGER on behalf of himself and others similarly situated, and on behalf of all other “aggrieved” employees, CIV. NO. 1:14-1415 WBS BAM ORDER GRANTING MOTION TO QUASH SUBPOENA 15 Plaintiffs, 16 v. 17 18 INDIAN RIVER TRANSPORT CO., a Florida Corporation, and DOES 1-10, inclusive, 19 Defendants. 20 21 ----oo0oo---- 22 23 24 25 Before the court is defendant’s Motion to Quash Trial Subpoena for Steve Ferguson filed February 1, 2017. 65.) (Docket No. Federal Rule of Civil Procedure 45(c) imposes geographic limitations on the court’s subpoena power, stating: 26 27 28 1 1 A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense.1 2 3 4 5 6 7 It is undisputed that Mr. Ferguson resides in, is 8 employed in, and regularly transacts business in Florida but not 9 in California. Rule 45(d)(3)(A) goes on to state that “[o]n 10 timely motion, the court . . . must quash or modify a subpoena 11 that .. . . requires a person to comply beyond the geographical 12 limitations specified in Rule 45(c).” 13 Thus, under the plain language of Rule 45, upon timely 14 motion this court must grant the motion to quash plaintiffs’ 15 subpoena directing Mr. Ferguson to appear at trial. The motion 16 here is timely, as it was filed on February 1, 2017, six days 17 after the subpoena was served on January 26, 2017. (See Docket 18 No. 67.) The fact that the motion was filed on the eve of trial 19 is simply a result of plaintiffs’ service of the trial subpoena 20 on the eve of trial. 21 The fact that both parties designated Mr. Ferguson as a 22 witness in their pretrial statements and that such designations 23 were memorialized in the court’s Pretrial Order, without 24 objection by defendant, does not waive defendant’s ability to 25 26 27 28 1 Rule 45(c) was amended in 2013, and thus the language of the rule cited by plaintiff is out-of-date, and the case relied on by plaintiff has been abrogated. See Fed. R. Civ. P. advisory committee’s note to 2013 amendment. 2 1 bring this motion. 2 lists, expressed no opinion as to whether any particular witness 3 would be subject to this court’s subpoena power under the Federal 4 Rules. 5 The court, by adopting the parties’ witness The court notes that Mr. Ferguson’s deposition has been 6 taken as defendant’s designee under Rule 30(b)(6) in this case. 7 Accordingly, under Rule 32(a)(3) plaintiff may use his deposition 8 at trial for any purpose. 9 miles from the place of trial, and plaintiff has been unable to Further, because he is more than 100 10 procure his attendance by subpoena, plaintiff may also use his 11 deposition for any purpose under Rule 32(a)(4). 12 Defense counsel also represented at the hearing that 13 she is willing to work with plaintiffs’ counsel to arrive at 14 stipulations as to the facts to which Mr. Ferguson would be 15 expected to testify at trial. 16 to attempt to arrive at such stipulations in advance of trial. 17 For the foregoing reasons, IT IS HEREBY ORDERED that The court encourages the parties 18 defendant’s Motion to Quash Trial Subpoena for Steve Ferguson 19 filed February 1, 2017 (Docket No. 65) be, and the same hereby 20 is, GRANTED. 21 Dated: February 3, 2017 22 23 24 25 26 27 28 3

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