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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILFREDO GOLEZ

CASE NO. 09-cv-965 AJB (WMc)
Plaintiff,

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ORDER RE: ISSUANCE OF
DEPOSITION SUBPOENA
[DOC. NO. 102.]

vs.
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JOHN E. POTTER, POSTMASTER
GENERAL; U.S. POSTAL SERVICE

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Defendants.
I.

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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.

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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.
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09-cv-965 AJB (WMc)

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However, Plaintiff is advised he must comply with Rule 45 which requires non-party witnesses to

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be personally served with subpoenas that are accompanied by money orders for witness fees and if

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applicable, travel expenses. Fed R. Civ. P 45; 28 U.S.C. § 1821. Plaintiff is further notified that

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as with party witnesses, Plaintiff must bear the costs of recording the non-party deposition as well

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as transcribing the deposition if he intends to use it as evidence in a future proceeding. In

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addition, Plaintiff must also arrange for the deposition of a non-party witness to be conducted

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before a deposition officer.

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With respect to Plaintiff’s request for assistance in actually locating non-party witness

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Michael Boisvert, the U.S. Marshal has no duty to locate persons for purposes of service. See e.g.

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Walker v. Summer, 14 F.3d 1415, 1421-22 (9th Cir. 1994). It is Plaintiff’s responsibility to provide

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the U.S. Marshal with accurate and sufficient information to effect service. Plaintiff must use his

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own methods such as an electronic search or California Public Records Act request in order to

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determine the location of the witness he seeks to depose.

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IV.

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CONCLUSION AND ORDER THEREON
For the reasons articulated above, Plaintiff’s Motion for “Leave of Court to Allow

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Subpoena” is granted in part and denied in part. Accordingly, IT IS HEREBY ORDERED

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that:

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1. Plaintiff’s request for a subpoena form is GRANTED. The clerk is instructed to send

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Plaintiff one subpoena form [AO-88A] and a copy of Rule 45 of the Federal Rules of Civil

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Procedure;

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2. Plaintiff’s request for the Court’s assistance in locating witness Michael Boisvert is
DENIED.
IT IS SO ORDERED.
DATED: July 21, 2011

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Hon. William McCurine, Jr.
U.S. Magistrate Judge
United States District Court

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09-cv-965 AJB (WMc)