Carbajal v. Warner et al

Filing 347

ORDER granting 340 Defendant Serra's Motion to Quash Subpoena, and granting in part to the extent that the Court will consider Plaintiff's Response, and denying in part in all other respects 345 Plaintiff's Petition to Enforce Subpoena or in Alternative Modify and Response to Serra's Petition to Quash Subpoena. By Magistrate Judge Kristen L. Mix on 6/15/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
MYRL SERRA, in his individual capacity,
SHERRI PRICE, in her individual capacity,
CAROL WARNER, in her individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
BEA WOLFE, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
JOEL SMITH, in his individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
BOARD OF COUNTY COMMISSIONER OF DELTA COUNTY, a political subdivision of
the State of Colorado,
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
DARIN DESEL, Police Officer for the Denver Police Department, in his individual
capacity,
FRED MCKEE, Sheriff for the Delta Sheriff’s Department, in his individual capacity,
PERRY SPEELMAN, Police Officer for the Denver Police Department, in his individual
capacity, and
UNKNOWN REPRESENTATIVE, Representative of Patricia Kramer’s Estate, former
Deputy District Attorney for the Seventh Judicial District, in her individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Myrl Serra’s (“Serra”) Motion to
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Quash Subpoena [Docket No. 340; Filed June 1, 2012] and Plaintiff’s Petition to
Enforce Subpoena or in Alternative Modify and Response to Serra’s Petition to
Quash Subpoena [Docket No. 345; Filed June 14, 2012]. The Court has considered the
two Motions, the case record, and the applicable law, and is fully advised in the premises.
For the reasons stated herein,
IT IS HEREBY ORDERED that Defendant Serra’s Motion to Quash Subpoena
(“Motion to Quash”) [#340] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Petition to Enforce Subpoena or in
Alternative Modify and Response to Serra’s Petition to Quash Subpoena [#345] is
GRANTED IN PART to the extent that the Court will consider Plaintiff’s Response, and
DENIED IN PART in all other respects.
I.

Background
In the Motion to Quash, Defendant Serra seeks to quash the subpoena served on

his son Mario Serra (“Mario”) by Plaintiff in connection with an Evidentiary Hearing on
Plaintiff’s Motion for Sanctions [#266] set for June 26, 2012 at 1:30 p.m. at the federal
courthouse in Denver, Colorado. Mario is a ten-year-old minor living in western Colorado,
approximately four hours by car from the courthouse in Denver. [#340] at 3. Defendant
Serra, his father, is presently incarcerated and avers that he has no means of transporting
Mario to Denver. Id. at 2. Mario is in the care and custody of his aunt, Monique Serra, but
will be staying with another aunt, Michelle Serra, in Overland Park, Kansas during the
summer months. Id. Defendant Serra attests that the burden imposed by the subpoena
on Mario is undue in terms of travel and expense, and alleges that Gwen Serra, his mother
(and Mario’s grandmother) was present at the time of service (the event at issue in the
Motion for Sanctions), and will provide testimony at the Evidentiary Hearing by telephone.
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Id. at 3-4.
In response, Plaintiff contends that Defendant Serra does not have standing to
contest the subpoena regarding Mario, because Defendant Serra is incarcerated, and
Mario is in the care of Monique Serra. [#345] at 2. Plaintiff further avers that the Motion
to Quash is untimely. Id. at 3. Plaintiff asserts that Mario’s testimony is material and
relevant, as Defendant Serra specifically referred to Mario in his affidavit regarding service
which provides the basis of Plaintiff’s Motion for Sanctions. Id. at 4. Plaintiff asks the Court
to require Mario’s appearance at the hearing on the Motion for Sanctions, and concedes
that Mario could appear by telephone. Id.
II.

Analysis
Mario Serra is not a party to this case. Fed. R. Civ. P. 45 governs discovery from

non-parties by subpoena. Rule 45 requires that a motion to quash or modify the subpoena
be timely filed if the subpoena (1) fails to allow a reasonable time to comply, (2) requires
a nonparty to travel more than 100 miles to comply with the subpoena, (3) requires
disclosure of privileged or other protected matter, or (4) subjects a person to undue burden.
See Fed. R. Civ. P. 45(c)(3)(A).
The Court first addresses Plaintiff’s challenge to Defendant Serra’s standing. “The
general rule is that a party has no standing to quash a subpoena served upon a third party,
except as to claims of privilege relating to the documents being sought . . . [or] upon a
showing that there is a privacy interest applicable.” Windsor v. Martindale, 175 F.R.D. 665,
668 (D. Colo. 1997). Further, an objecting party has standing to move to quash a
subpoena issued to a nonparty if “the objecting party claims some personal right or
privilege with regard to the documents sought.” 9A Wright, Miller, Kane, & Marcus, Fed.
Prac. & Proc. Civ. § 2459 (3d ed.); see also United States v. Gonzales, No. 10-cr-00396-3-

CMA, 2010 WL 3853324, at *2 (D. Colo. Sept. 8, 2010) (citation omitted) (“A party only has
standing to move to quash the subpoena issued to another when the subpoena infringes
upon the movant's legitimate interests.”).
Here, Defendant Serra is Mario’s father, and Defendant Serra’s affidavit is the
subject of Plaintiff’s Motion for Sanctions which the Court will adjudicate at the Evidentiary
Hearing.

Despite Defendant Serra’s incarcerated status, the Court finds that it is

reasonable to conclude the Defendant Serra claims a personal right and legitimate interest
in the burden on his minor son that could result by enforcement of the subpoena.
Therefore, the Court holds that Defendant Serra has standing to challenge the subpoena
issued to his minor son in the circumstances at issue. Additionally, because Defendant
Serra filed his Motion to Quash before the compliance date of the subpoena, and with
enough time for the Court to review a response by Plaintiff, the Court accepts the Motion
to Quash as timely filed.
Regarding the burden imposed by enforcement of the subpoena against Mario, “[t]he
reasonableness of a subpoena depends on the balance of the interest served by
demanding compliance with the subpoena against the interests served by quashing it.”
Meacham v. Church, No. 2:08-cv-535, 2010 WL 1576711, at *2 (D. Utah Apr. 19, 2010)
(citing 9A Fed. Prac. & Proc. Civ. § 2463.1; Positive Black Talk, Inc. v. Cash Money
Records, Inc., 394 F.3d 357, 377 (5th Cir. 2004)). The Court may quash or modify a
subpoena that is unreasonable on the basis of “annoyance, embarrassment, oppression,
or undue burden or expense or seeks privileged or otherwise protected information.”
Meacham, 2010 WL 1576711, at *2 (citations omitted). The Court also considers whether
the information “is necessary and available from any other source.” Id. (quoting 9A Fed.
Prac. & Proc. Civ. § 2463.1).
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As stated above, Mario is a ten-year-old minor living in western Colorado, and for
the summer, residing in Overland Park, Kansas, which are both located more than 100
miles from the courthouse in Denver. As Defendant Serra represents that given his
imprisonment, he has no means of transporting Mario to the courthouse, the Court agrees
that the appearance of Mario at the hearing would be unreasonably burdensome.
Moreover, the Court is not inclined to compel the appearance of minor witnesses in federal
court unless there is no reasonable alternative. See, e.g., Davis v. Reynolds, 890 F.2d
1105, 1110 (10th Cir. 1989) (citing Globe Newspaper Co. v. Superior Ct. for Norfolk
County, 457 U.S. 596, 607 (1982) (stating that “safeguarding the physical and
psychological well-being of a minor . . . is a compelling [interest]” to be considered in
connection with calling minor witnesses to testify in court)). The parties have provided the
names of at least three other witnesses who purportedly observed the attempted service
on Defendant Serra: Gwen Serra, Victoria Carbajal, and Jess Jimenez. See Plaintiff’s
Exhibit and Witness List [#314] at 2; Defendant Myrl Serra’s Designation of Witnesses &
Exhibits for April 16, 2012 Hearing [#319] at 2. Thus, the information sought from Mario
Serra is available from other sources. In consideration of these circumstances, the Court
grants Defendant Serra’s Motion to Quash [#340].
Dated: June 15, 2012

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