Garcia v. Resurgent Capital Services, LP et al

Filing 109

ORDER 100 Granting in Part and Denying in Part Plaintiff's Motion to Compel. Signed by Judge Edward M. Chen on 4/27/2012. (emcsec, COURT STAFF) (Filed on 4/27/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONNA GARCIA,

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For the Northern District of California

United States District Court

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No. C-11-1253 EMC

Plaintiff,
v.
RESURGENT CAPITAL SERVICES, LP, et
al.,

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL
(Docket No. 100)

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Defendants.
___________________________________/

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Plaintiff has filed a motion to compel the attendance of three witnesses at trial: Jean Paul

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Torres, Jonathan Birdt, and Erica Brachfeld. Docket No. 100. The motion to compel Mr. Torres’s

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attendance at trial has been rendered moot by the parties’ stipulations to produce said witness. See

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Docket No. 107. Accordingly, the Court DENIES the motion to compel as to Mr. Torres as moot.

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Additionally, Brachfeld does not oppose the motion to compel as to Ms. Brachfeld, Docket No. 106;

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thus the motion to compel is GRANTED as to Ms. Brachfeld.

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As for Mr. Birdt, Brachfeld’s 30(b)(6) designee, Brachfeld’s only argument against

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compelling him to attend trial is that he is outside the 100-mile radius in which the Court can compel

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his attendance. Opp. at 2. However, the Court has the power to compel his attendance at trial

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because, according to the docket sheet in this matter and Mr. Birdt’s own representations, he resides

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in and/or does business within the state. See Fed. R. Civ. P. 45(b)(2), (c)(A)(ii) (“[S]ubject to Rule

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45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place

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within the state where the trial is held.”); Chung v. Chrysler Corp., 903 F. Supp. 160, 165 (D.D.C.

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1995) (“Under the revised rule, a federal court can compel a witness to come from any place in the

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state to attend trial, whether or not the local state law so provides.”) (citing Advisory Committee

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Note to 1991 Amendments to Rule 45; 9 Wright & Miller, Practice and Procedure § 2451 (1994

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Supp.) (purpose of Rule 45 as amended is “to enable the court to compel a witness found within the

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state in which the court sits to attend trial”); David D. Siegel, Federal Subpoena Practice Under The

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New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197, 210, 215 (1992)). Brachfeld

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makes no argument or showing that Mr. Birdt’s attendance would cause him to “incur substantial

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expense.” Rule 45(c)(3)(B)(iii). Accordingly, the Court GRANTS Plaintiff’s motion to compel Mr.

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Birdt’s attendance at trial.

& Co. As this issue is not within the scope of the parties’ briefing previously ordered by the Court,

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For the Northern District of California

Brachfeld also appears to challenge a subpoena apparently served upon Nasif, Hicks, Harris

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United States District Court

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the Court does not consider it.

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This order disposes of Docket No. 100.

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IT IS SO ORDERED.

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Dated: April 27, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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