Topa v. Melendez et al

Filing 24

ORDER granting 23 Defendants' Motion to quash Subpoena. The subpoena (Doc. 23-1 at 2) is QUASHED. Signed by Magistrate Judge Carol Mirando on 7/18/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GELU TOPA,
Plaintiff,
v.

Case No: 2:16-cv-737-FtM-29CM

TEOFILO MELENDEZ and
NICHOLAS SHAFFER,
Defendants.
ORDER
This matter comes before the Court upon review of Defendants’ Motion to
quash Subpoena (Doc. 23) filed on July 18, 2017.

Defendants seek to quash

Plaintiff’s subpoena to depose a non-party witness, Donna Marie Amy, because the
name of Defendants’ counsel appears on the subpoena as if he requested this
subpoena on behalf of Plaintiff.

Docs. 23 at 1; 23-1 at 2.

neither issued nor requested the subpoena.

Doc. 23 at 2.

proceeding pro se and opposes the requested relief.

Counsel states that he
Plaintiff is currently

Docs. 1; 23 at 2.

The Court first notes that even if Plaintiff is proceeding pro se, he “must follow
the rules of procedure,” and “the district court has no duty to act as his lawyer.”

United States v. Hung Thien Ly, 646 F.3d 1307, 1315 (11th Cir. 2011) (citations
omitted).

Accordingly, Plaintiff must follow the Federal Rules of Civil Procedure to

issue a proper subpoena.

See id.

Rule 45 of the Federal Rules of Civil Procedure designates two ways to issue a
subpoena: either (1) the Clerk of Court may issue a subpoena, signed but otherwise

in blank, to a party who requests it, or (2) an attorney authorized to practice in the
issuing court may issue and sign a subpoena. Fed. R. Civ. P. 45(a)(3). Here, the
subpoena and the motion show that neither the Clerk of this Court nor an attorney
authorized to practice in this Court signed and issued the subpoena at issue. Doc.
23-1 at 2.
Rule 45 also mandates the Court to quash a subpoena that does not provide a
reasonable time to comply. Fed. R. Civ. P. 45(d)(3)(A)(i). Here, according to this
case’s Case Management and Scheduling Order, discovery closed on July 3, 2017.
Doc. 22 at 1. Yet, the subpoena shows that Plaintiff seeks to conduct a deposition on
July 20, 2017, approximately three weeks after the discovery deadline had expired.
Docs. 23-1 at 2. Furthermore, it is questionable whether Plaintiff complied with
Local Rule 3.02, which requires a person desiring to take a deposition to provide at
least fourteen days notice in writing to every other party and to the deponent. M.D.
Fla. R. 3.02.

As a result, the Court will quash the subpoena.

ACCORDINGLY, it is hereby
ORDERED:
Defendants’ Motion to quash Subpoena (Doc. 23) is GRANTED.

The

subpoena (Doc. 23-1 at 2) is QUASHED.
DONE and ORDERED in Fort Myers, Florida on this 18th day of July, 2017.

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Copies:
Counsel of record
Gelu Topa pro se

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