Lincoln Rock, LLC v. City of Tampa

Filing 32

ORDER denying without prejudice 28 Defendant's Motion to Overrule Objections and to Order Production of Personal Tax Returns. Signed by Magistrate Judge Julie S. Sneed on 7/21/2016. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINCOLN ROCK, LLC,
Plaintiff,
v.

Case No: 8:15-cv-1374-T-30JSS

CITY OF TAMPA,
Defendant.
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ORDER ON DEFENDANT’S MOTION
TO OVERRULE OBJECTIONS AND TO
ORDER PRODUCTION OF PERSONAL TAX RETURNS
THIS MATTER is before the Court on Defendant’s Motion to Overrule Objections and to
Order Production of Personal Tax Returns (“Motion”) (Dkt. 28) and the response in opposition to
the Motion filed by Plaintiff and non-parties Bernard Rock and Siri Rock (Dkt. 31). For the
reasons that follow, the Motion is denied without prejudice because the Court lacks jurisdiction to
compel Mr. Rock’s production of documents absent a subpoena duces tecum directed to Mr. Rock.
Mr. Rock is Plaintiff’s sole member, but is not a party to this case. (Dkt. 1 at ¶ 1.) The
Motion concerns Defendant’s request for Mr. Rock’s personal tax returns for the years 2012
through 2015. (Dkt. 28.) This request is contained in Defendant’s Amended Notice of Taking
Videotaped Deposition Duces Tecum of Mr. Rock. (Dkt. 28-6.) However, Defendant did not serve
a corresponding subpoena duces tecum on Mr. Rock pursuant to Federal Rule of Civil Procedure
45.
Plaintiff and Mr. Rock served objections to Defendant’s request for his personal tax returns.
(Dkts. 28-7, 28-8.) In response to the Motion, Plaintiff and the Rocks state that while Mr. Rock

agreed to appear and testify at the noticed deposition, he made no such agreement with respect to
Defendant’s request for document production of his personal tax returns. (Dkt. 31 at 5, n.4.)
Thus, before the Court is Defendant’s request to compel Mr. Rock, a non-party, to produce
documents without an accompanying subpoena duces tecum. Because Defendant did not serve a
subpoena duces tecum upon Mr. Rock, the Court lacks jurisdiction to compel Mr. Rock’s
production of the requested tax returns. See Fed. R. Civ. P. 34(c) (“As provided in Rule 45, a
nonparty may be compelled to produce documents and tangible things or to permit an inspection”);
Fed. R. Civ. P. 30(a)(1) (stating that a “deponent’s attendance may be compelled by subpoena
under Rule 45”); Fed. R. Civ. P. 30(b)(2) (stating that a notice of deposition duces tecum should
include a list of the requested documents as set forth in the corresponding subpoena duces tecum);
Wrangen v. Pennsylvania Lumbermans Mut. Ins. Co., No. 07-61879, 2008 WL 5427785, at *1
(S.D. Fla. Dec. 30, 2008) (“In the absence of proper service of a subpoena on [a non-party] the
Court lacks jurisdiction over the [non-party]” and cannot compel it to permit a party’s inspection
of its property); Salter v. McNesby, No. 306CV110MCREMT, 2007 WL 221392, at *2 (N.D. Fla.
Jan. 25, 2007) (holding that a subpoena is required to compel attendance at a Rule 30(b)(6)
deposition and that “attendance at a deposition cannot be compelled by notice alone”); Highland
Tank & Mfg. Co. v. PS Int’l, Inc., 227 F.R.D. 374, 379 (W.D. Pa. 2005) (“Rule 45 is the only
discovery method whereby information may be obtained from a nonparty to the suit”); Cuthbertson
v. Excel Indus., Inc., 179 F.R.D. 599, 602 (D. Kan. 1998) (denying a motion to compel because
the non-party had not been served with a subpoena and, therefore, the court “does not have
jurisdiction over the deponent to order him to answer the deposition question propounded to him
or other questions of similar nature”).

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Accordingly, it is
ORDERED that the Motion (Dkt. 28) is DENIED without prejudice.
DONE and ORDERED in Tampa, Florida on July 21, 2016.

Copies furnished to:
Counsel of Record

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