Simmons v. Harleysville Insurance Company et al

Filing 62

ORDER granting in part and denying in part re 56 Motion to Compel; granting in part and denying in part re 61 Motion to Compel. Signed by Magistrate Judge Christopher L. Ray on 10/9/19. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JULIA P. SIMMONS, executrix of
the estate of Orita Wells Coney,
Plaintiff,
v.

HARLEYSVILLE INSURANCE
COMPANY, a/k/a Harleysville
Mutual Insurance Company, et al.
Defendant.

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CV418-055

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ORDER
Before the Court is the parties’ Joint Motion to Compel Discovery,
doc. 56, and Supplemental Joint Motion to Compel Discovery, doc. 61.
For the following reasons, the motion is DENIED IN PART AND
GRANTED IN PART.
The parties request that the Court compel a non-party—Mr. Robert
Moore—to appear for a deposition. Doc. 56 at 2. The parties indicate
that they have served Mr. Moore with a subpoena at least once, and he
has still failed to appear. Id. at 4. They believe that Mr. Moore will only
appear for a deposition upon order of the Court. Id. The motion has

been served upon Mr. Moore, and he has not provided any information to
the Court to address his failure to comply with the subpoenas.
The Court lacks the authority to order a non-party like Mr. Moore
to appear for a deposition pursuant to Fed. R. Civ. P. 37(a)(3)(B). As an
initial matter, Fed. R. Civ. P. 37(a)(3)(B) gives the Court authority to
compel a discovery response if:
(i)
(ii)
(iii)
(iv)

a deponent fails to answer a question asked under Rule 30
or 31;
a corporation or other entity fails to make a designation
under Rule 30(b)(6) or 31(a)(4);
a party fails to answer an interrogatory submitted under
Rule 33; or
a party fails to produce documents or fails to respond that
inspection will be permitted - - or fails to permit inspection
- - as requested under Rule 34.

None of these situations applies to Mr. Moore as he is neither a party, a
corporation or other entity, nor has he been asked any questions under
Rule 30 or Rule 31. Fed. R. Civ. P. 45 does provide for some sanctions for
a party who “fails without adequate excuse to obey the subpoena or an
order related to it.”

Namely, the Court may hold that person in

contempt. Id. See Patel v. Bhakta, 2015 WL 12159208, *4 (N.D. Ga. Apr.
29, 2015) (recognizing that Rule 45(g) provides that the Court “may hold
in contempt a person who, having been served, fails without adequate
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excuse to obey the subpoena or an order related to it.”);

see also

Advisory Committee Notes to the 2013 Amendment (“[I]t would be rare
for a court to use contempt sanctions without first ordering compliance
with a subpoena . . . Often contempt proceedings will be initiated by an
order to show cause, and an order to comply or be held in contempt may
modify the subpoena’s command. Disobedience of such an order may be
treated as contempt.”).

Accordingly, the Court issues the following

order.
Mr. Moore is DIRECTED to appear at a subpoenaed deposition to
be held no later than thirty days from the date of this order or else
face the risk of being held in civil contempt.
The parties shall serve with the subpoena a copy of this Order
explaining that a failure to appear at the subpoenaed deposition
may result his being held in civil contempt of court.
If Mr. Moore refuses to attend this final deposition, the parties may
file a motion for contempt within five days of the noticed
deposition.

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Mr. Moore shall have five days from the date that motion is served
upon him to respond and SHOW CAUSE why he should not be
held in contempt at that time.
SO ORDERED, this 9th day of October, 2019.

________________________
______________________________
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CHRISTOPHER L. RAY
HRISTOPHER
R
PH
UNITED STATES MAGISTRATE JUDGE
S
SOUTHERN DISTRICT OF GEORGIA

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