Golez v. Potter et al

Filing 105

ORDER re 102 Motion for Leave of Court to Allow Subpoena. Plaintiff's Motion is granted in part and denied in part. Plaintiff's request for subpoena form is granted. Plaintiff's request for Court's assistance in locating witness Michael Boisvert is denied. Signed by Magistrate Judge William McCurine, Jr on 07/21/11. (Forms mailed) (All non-registered users served via U.S. Mail Service)(cge) (jrl).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILFREDO GOLEZ CASE NO. 09-cv-965 AJB (WMc) Plaintiff, 12 ORDER RE: ISSUANCE OF DEPOSITION SUBPOENA [DOC. NO. 102.] vs. 13 14 JOHN E. POTTER, POSTMASTER GENERAL; U.S. POSTAL SERVICE 15 16 Defendants. I. 17 18 19 20 On July 7, 2011, Plaintiff pro se filed a Motion for Leave of Court to Allow Subpoena. [See ECF No. 102.] In his motion, Plaintiff requests the Court issue a deposition subpoena and seeks the Court’s assistance in locating witness Michael Boisvert for deposition. Id. II. 21 22 23 24 25 26 27 28 INTRODUCTION STANDARD OF REVIEW In accordance with Rule 45(a)(3) of the Federal Rules of Civil Procedure, “[t]he clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service.” Fed. R. Civ. P. 45(a)(3). III. DISCUSSION The Court will direct the Clerk of Court to mail to Plaintiff, with this order, one signed but otherwise blank deposition subpoena form [AO-88A “Subpoena to Testify at a Deposition in a Civil Action.”] which should be completed by Plaintiff. Plaintiff’s in forma pauperis status allows him assistance in the service of a completed deposition subpoena by the United States Marshal. -1- 09-cv-965 AJB (WMc) 1 However, Plaintiff is advised he must comply with Rule 45 which requires non-party witnesses to 2 be personally served with subpoenas that are accompanied by money orders for witness fees and if 3 applicable, travel expenses. Fed R. Civ. P 45; 28 U.S.C. § 1821. Plaintiff is further notified that 4 as with party witnesses, Plaintiff must bear the costs of recording the non-party deposition as well 5 as transcribing the deposition if he intends to use it as evidence in a future proceeding. In 6 addition, Plaintiff must also arrange for the deposition of a non-party witness to be conducted 7 before a deposition officer. 8 With respect to Plaintiff’s request for assistance in actually locating non-party witness 9 Michael Boisvert, the U.S. Marshal has no duty to locate persons for purposes of service. See e.g. 10 Walker v. Summer, 14 F.3d 1415, 1421-22 (9th Cir. 1994). It is Plaintiff’s responsibility to provide 11 the U.S. Marshal with accurate and sufficient information to effect service. Plaintiff must use his 12 own methods such as an electronic search or California Public Records Act request in order to 13 determine the location of the witness he seeks to depose. 14 IV. 15 CONCLUSION AND ORDER THEREON For the reasons articulated above, Plaintiff’s Motion for “Leave of Court to Allow 16 Subpoena” is granted in part and denied in part. Accordingly, IT IS HEREBY ORDERED 17 that: 18 1. Plaintiff’s request for a subpoena form is GRANTED. The clerk is instructed to send 19 Plaintiff one subpoena form [AO-88A] and a copy of Rule 45 of the Federal Rules of Civil 20 Procedure; 21 22 23 24 2. Plaintiff’s request for the Court’s assistance in locating witness Michael Boisvert is DENIED. IT IS SO ORDERED. DATED: July 21, 2011 25 Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court 26 27 28 -2- 09-cv-965 AJB (WMc)

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