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