Golez v. Potter et al
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).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 09-cv-965 AJB (WMc)
ORDER RE: ISSUANCE OF
[DOC. NO. 102.]
JOHN E. POTTER, POSTMASTER
GENERAL; U.S. POSTAL SERVICE
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.
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).
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.
09-cv-965 AJB (WMc)
However, Plaintiff is advised he must comply with Rule 45 which requires non-party witnesses to
be personally served with subpoenas that are accompanied by money orders for witness fees and if
applicable, travel expenses. Fed R. Civ. P 45; 28 U.S.C. § 1821. Plaintiff is further notified that
as with party witnesses, Plaintiff must bear the costs of recording the non-party deposition as well
as transcribing the deposition if he intends to use it as evidence in a future proceeding. In
addition, Plaintiff must also arrange for the deposition of a non-party witness to be conducted
before a deposition officer.
With respect to Plaintiff’s request for assistance in actually locating non-party witness
Michael Boisvert, the U.S. Marshal has no duty to locate persons for purposes of service. See e.g.
Walker v. Summer, 14 F.3d 1415, 1421-22 (9th Cir. 1994). It is Plaintiff’s responsibility to provide
the U.S. Marshal with accurate and sufficient information to effect service. Plaintiff must use his
own methods such as an electronic search or California Public Records Act request in order to
determine the location of the witness he seeks to depose.
CONCLUSION AND ORDER THEREON
For the reasons articulated above, Plaintiff’s Motion for “Leave of Court to Allow
Subpoena” is granted in part and denied in part. Accordingly, IT IS HEREBY ORDERED
1. Plaintiff’s request for a subpoena form is GRANTED. The clerk is instructed to send
Plaintiff one subpoena form [AO-88A] and a copy of Rule 45 of the Federal Rules of Civil
2. Plaintiff’s request for the Court’s assistance in locating witness Michael Boisvert is
IT IS SO ORDERED.
DATED: July 21, 2011
Hon. William McCurine, Jr.
U.S. Magistrate Judge
United States District Court
09-cv-965 AJB (WMc)
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