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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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

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Plaintiffs,
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v.
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INDIAN RIVER TRANSPORT CO., a
Florida Corporation, and DOES
1-10, inclusive,

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Defendants.
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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:

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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

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It is undisputed that Mr. Ferguson resides in, is
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employed in, and regularly transacts business in Florida but not
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in California.

Rule 45(d)(3)(A) goes on to state that “[o]n

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timely motion, the court . . . must quash or modify a subpoena
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that .. . . requires a person to comply beyond the geographical
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limitations specified in Rule 45(c).”
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Thus, under the plain language of Rule 45, upon timely
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motion this court must grant the motion to quash plaintiffs’
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subpoena directing Mr. Ferguson to appear at trial.

The motion

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here is timely, as it was filed on February 1, 2017, six days
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after the subpoena was served on January 26, 2017.

(See Docket

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No. 67.)

The fact that the motion was filed on the eve of trial

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is simply a result of plaintiffs’ service of the trial subpoena
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on the eve of trial.
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The fact that both parties designated Mr. Ferguson as a
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witness in their pretrial statements and that such designations
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were memorialized in the court’s Pretrial Order, without
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objection by defendant, does not waive defendant’s ability to
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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.
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bring this motion.

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lists, expressed no opinion as to whether any particular witness

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would be subject to this court’s subpoena power under the Federal

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Rules.

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The court, by adopting the parties’ witness

The court notes that Mr. Ferguson’s deposition has been

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taken as defendant’s designee under Rule 30(b)(6) in this case.

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Accordingly, under Rule 32(a)(3) plaintiff may use his deposition

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at trial for any purpose.

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miles from the place of trial, and plaintiff has been unable to

Further, because he is more than 100

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procure his attendance by subpoena, plaintiff may also use his

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deposition for any purpose under Rule 32(a)(4).

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Defense counsel also represented at the hearing that

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she is willing to work with plaintiffs’ counsel to arrive at

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stipulations as to the facts to which Mr. Ferguson would be

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expected to testify at trial.

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to attempt to arrive at such stipulations in advance of trial.

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For the foregoing reasons, IT IS HEREBY ORDERED that

The court encourages the parties

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defendant’s Motion to Quash Trial Subpoena for Steve Ferguson

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filed February 1, 2017 (Docket No. 65) be, and the same hereby

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is, GRANTED.

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Dated:

February 3, 2017

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