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)

Download PDF
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. -2- Copies: Counsel of record Gelu Topa pro se -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?