Alexander v. Diaz et al

Filing 35

ORDER Denying Joint Motion to Enforce Deposition Subpoena and Compel Testimony of Inmate Witness Jack Miller [Doc. No. 34 ]. Signed by Magistrate Judge Karen S. Crawford on 3/30/2021. (anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANAND JON ALEXANDER, Case No.: 3:20-cv-00100-CAB-KSC Plaintiff, 12 13 v. 14 ORDER DENYING JOINT MOTION TO TO ENFORCE DEPOSITION SUBPOENA AND COMPEL DEPOSITION TESTIMONY OF INMATE WITNESS JACK MILLER DANIEL PARAMO, et al., 15 Defendants. 16 [Doc. No. 34] 17 18 Before the Court is the parties’ Joint Motion to Enforce Deposition Subpoena and 19 Compel Deposition Testimony of Inmate Witness Jack Miller, CDCR No. E76017 (the 20 “Joint Motion” or “Jt. Mot.”). Doc. No. 34. For the reasons stated below, the Joint Motion 21 is DENIED WITHOUT PREJUDICE. 22 As set forth in the Joint Motion and supporting exhibits, Jack Miller (“Miller”), who 23 is currently incarcerated at Wasco State Prison, is believed to have knowledge relevant to 24 this case. Jt. Mot. at 2. After obtaining the Court’s leave to depose Miller and other 25 incarcerated witnesses, on January 12, 2021, defendant served a subpoena for Miller’s 26 deposition. Jt. Mot. at 1-2; see also Doc. No 27 (order authorizing depositions of several 27 inmates); Doc. No. 34-1 at 8-11 (subpoena for Miller’s deposition). The subpoena 28 commanded Miller to appear for deposition at Wasco State Prison on March 2, 2021. Doc. 1 3:20-cv-00100-CAB-KSC 1 No. 34-1 at 8. Defendant’s counsel, a duly licensed attorney authorized to practice in this 2 Court, signed the subpoena. Id. At the appointed time, counsel, plaintiff, and a court 3 reporter were virtually present for Miller’s remote deposition, but Miller refused to appear. 4 See Jt. Mot. at 2. Defendant’s counsel made a record of Miller’s nonappearance, including 5 that Miller had apparently informed a corrections officer that he would not appear and 6 “ha[d] nothing to say.” See Doc. No. 34-1 at 23-28. The parties jointly move the Court to 7 “issue an order compelling … Miller’s attendance and testimony at his deposition or face 8 contempt-of-court sanctions.” Jt. Mot. at 3. 9 As an initial matter, the Court notes that an order compelling Miller’s attendance at 10 deposition has already been issued, in the form of the subpoena. “A subpoena under Rule 11 45 … obligates the nonparty to appear at the scheduled deposition at pain of being held in 12 contempt.” Sali v. Corona Regional Med. Ctr., 884 F.3d 1218, 1224 (9th Cir. 2018); see 13 also Fed. R. Civ. P. 45(a)(1)(A)(iii) (subpoena commands attendance at deposition); id. at 14 (a)(3) (an attorney authorized to practice in the issuing court may sign the subpoena); id. 15 at (g) (specifying contempt sanctions for noncompliance). Further, the Court “may not 16 impose … sanctions [under Rule 37] against a nonparty for asserted noncompliance with a 17 deposition subpoena issued under Rule 45.” Lugo v. Fisher, No. 1:19-cv-00039-SAB(PC), 18 2020 WL 6381388, at *1 (C.D. Cal. Oct. 30, 2020) (citing Sali, 884 F.3d at 1224). As the 19 relief sought by the parties already exists and other sanctions for Miller’s noncompliance 20 are not available, it is not clear what further intervention the parties seek from the Court. 21 Accordingly, the Joint Motion is DENIED WITHOUT PREJUDICE. If the parties 22 choose to re-file the Joint Motion, they must clarify the relief sought from the Court. 23 24 IT IS SO ORDERED. Dated: March 30, 2021 25 26 27 28 2 3:20-cv-00100-CAB-KSC

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