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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 DONNA GARCIA, 9 11 For the Northern District of California United States District Court 10 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) 12 13 Defendants. ___________________________________/ 14 15 Plaintiff has filed a motion to compel the attendance of three witnesses at trial: Jean Paul 16 Torres, Jonathan Birdt, and Erica Brachfeld. Docket No. 100. The motion to compel Mr. Torres’s 17 attendance at trial has been rendered moot by the parties’ stipulations to produce said witness. See 18 Docket No. 107. Accordingly, the Court DENIES the motion to compel as to Mr. Torres as moot. 19 Additionally, Brachfeld does not oppose the motion to compel as to Ms. Brachfeld, Docket No. 106; 20 thus the motion to compel is GRANTED as to Ms. Brachfeld. 21 As for Mr. Birdt, Brachfeld’s 30(b)(6) designee, Brachfeld’s only argument against 22 compelling him to attend trial is that he is outside the 100-mile radius in which the Court can compel 23 his attendance. Opp. at 2. However, the Court has the power to compel his attendance at trial 24 because, according to the docket sheet in this matter and Mr. Birdt’s own representations, he resides 25 in and/or does business within the state. See Fed. R. Civ. P. 45(b)(2), (c)(A)(ii) (“[S]ubject to Rule 26 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place 27 within the state where the trial is held.”); Chung v. Chrysler Corp., 903 F. Supp. 160, 165 (D.D.C. 28 1995) (“Under the revised rule, a federal court can compel a witness to come from any place in the 1 state to attend trial, whether or not the local state law so provides.”) (citing Advisory Committee 2 Note to 1991 Amendments to Rule 45; 9 Wright & Miller, Practice and Procedure § 2451 (1994 3 Supp.) (purpose of Rule 45 as amended is “to enable the court to compel a witness found within the 4 state in which the court sits to attend trial”); David D. Siegel, Federal Subpoena Practice Under The 5 New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197, 210, 215 (1992)). Brachfeld 6 makes no argument or showing that Mr. Birdt’s attendance would cause him to “incur substantial 7 expense.” Rule 45(c)(3)(B)(iii). Accordingly, the Court GRANTS Plaintiff’s motion to compel Mr. 8 Birdt’s attendance at trial. & Co. As this issue is not within the scope of the parties’ briefing previously ordered by the Court, 11 For the Northern District of California Brachfeld also appears to challenge a subpoena apparently served upon Nasif, Hicks, Harris 10 United States District Court 9 the Court does not consider it. 12 This order disposes of Docket No. 100. 13 14 IT IS SO ORDERED. 15 16 Dated: April 27, 2012 17 _________________________ EDWARD M. CHEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2

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