Futch v. FedEx Ground et al

Filing 92

ORDER denying 84 and 86 Motions to Compel for failure to comply with the Federal Rules of Civil Procedure; dismissing as moot 85 Motion to Compel; directing Plaintiff to request the Court to issue subpoenas in writing; quashing the Verizon su bpoena as invalid and unenforceable; directing Plaintiff to inform Verizon that the subpoena he served is invalid and has been quashed; directing the Clerk not to issue any further subpoenas requested by Plaintiff unless directed by the Court; and f urther directing the Clerk to file any subpoenas he requests or any AO 88, AO 88B, or AO 88A forms Plaintiff may present in an attempt to obtain a subpoena without the Court's prior approval on the docket. Signed by Magistrate Judge Christopher L. Ray on 06/05/2024. (jlh) Modified on 6/5/2024 (kjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHN RANDALL FUTCH,
Plaintiff,
v.
FEDEX GROUND,
Defendant.

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CV422-295

ORDER
Before the Court are three motions from pro se Plaintiff John
Randall Futch to compel production of various records from third parties.
In particular, Futch seeks an employment application and verification for
a non-party individual from “Crossroad Pointe LLC d/b/a Holiday Inn
Express” (“Holiday Inn Express”), doc. 84; phone and text records
involving a non-party individual from Verizon Wireless (“Verizon”), doc.
85; and security footage from a McDonald’s in Port Wentworth, doc. 86.
Under the Federal Rules, the proper vehicle for serving discovery
requests on third parties is a subpoena. See Fed. R. Civ. P. 45; see also
Brown v. Johnson, 2016 WL 5387640, at *2 (S.D. Ga. Sept. 23, 2016) (“[A]
party must obtain a subpoena issued pursuant to Federal Rule of Civil
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Procedure 45 to compel a nonparty to produce documents.”). Futch sent
requests for production, not subpoenas, to Holiday Inn Express and the
Port Wentworth McDonald’s. See doc. 84 at 6 (serving a “request for
production” on Holiday Inn Express); doc. 86 at 4 (serving a “request for
production” on McDonald’s); see also Fed. R. Civ. P. 34(a) (“A party may
serve on any other party a request . . .” (emphasis added)). Accordingly,
Futch’s Motions to Compel Holiday Inn Express and McDonalds are
DENIED for failure to comply with the Federal Rules of Civil Procedure.
Docs. 84 & 86. Futch has been advised–twice–that his pro se status does
not exempt him from compliance with the Federal Rules of Civil
Procedure. See doc. 47 at 14; doc. 76 at 4; see also Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989) (“[O]nce a pro se . . . litigant is in court, he
is subject to the relevant law and rules of court, including the Federal
Rules of Civil Procedure.”). To comply with the Federal Rules, all future
third-party discovery must be sought through subpoenas.
As a pro se plaintiff, Futch is only entitled to the issuance of a
subpoena upon the Court’s approval. See Heaggins v. Thomas, 2021 WL
5456974, at *1 (S.D. Ga. Nov. 22, 2021) (“‘A pro se plaintiff may be
entitled to the issuance of a subpoena commanding the production of
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documents from non-parties upon Court approval.’” (quoting Wright v.
Young, 2012 WL 2945598, at *2 (N.D. Fla. July 18, 2012)). Pursuant to
the Court’s Standing Order of January 16, 1996, Futch is DIRECTED to
request the Court to issue subpoenas in writing. See MC 496-06 (S.D.
Ga. Jan. 16, 1996).1 Any request for the Court to issue a subpoena must
explain “the need for the subpoena, the [person or entity] to be
subpoenaed, and the relevance of the documents to be subpoenaed, if
any.” Id. The Court must grant the request and direct the Clerk to issue
a subpoena before any subpoenas will be issued. 2
Even though he did not comply with Court’s Standing Order of
January 16, 1996, and the Court did not approve the issuance of a
subpoena, Plaintiff managed to obtain a subpoena from the Clerk as to
his request for phone and text records from Verizon. See doc. 85 at 6.
That subpoena was issued in error. Accordingly, the Court QUASHES
The Court DIRECTS the Clerk to attach a copy of that order to the service copy of
this Order.
2 The Court has a duty to “prevent abuse of its subpoena power and, at the very least,
ensure that subpoenas are used for permissible purposes.” Keith v. Mayes, 2010 WL
3339041, at *1 (S.D. Ga. Aug. 23, 2010). In determining whether issue the subpoena,
the Court will consider “whether the production sought by Plaintiff . . . fall[s] within
the scope of proper discovery under Fed. R. Civ. P. 26(b)(1)[.]” Heaggins, 2021 WL
5456974, at *1 (quoting Wright, 2012 WL 2945598, at *2). The Court will also
consider whether responding to the subpoena would pose an undue burden or expense
on the person responding to the subpoena. Id.
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the Verizon subpoena as invalid and unenforceable, doc. 85 at 6, and
DIMISSES as moot Futch’s Motion to Compel Verizon Wireless, doc.
85. Even if the subpoena had been properly issued, the Court would still
quash it because, as Verizon points out in its response to Futch, the
request is too vague, see id. at 5. Futch requested “phone records and or
text bearing number 907-290-6741 beginning June 1, 2023 thru January
1, 2024.” Id. at 6. Because of the subpoena’s vagueness and overbreadth,
compliance would unduly burden Verizon and, even if procedurally
proper, the subpoena would be appropriately quashed. See Fed. R. Civ.
P. 45(d)(3)(A)(iv); see also United States Willis v. SouthernCare, Inc., 2015
WL 5604367, at *9 (S.D. Ga. Sept. 23, 2015) (holding that the court will
consider, among other things, the breadth of a document request and the
particularity with which the party describes the requested documents in
determining whether a subpoena imposes an undue burden).
Moving forward, Futch must comply with the Court’s Standing
Order of January 16, 1996. He must submit written requests to the Court
for subpoenas, as needed, and include in any such request an explanation
as to why he needs the subpoena, who he is subpoenaing, and the
relevant of any documents to be subpoenaed. See MC 496-06 (S.D. Ga.
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Jan. 16, 1996). Any failure to comply with these procedures will be
deemed in disregard of this Order, subjecting him to possible sanctions
including dismissal of this case. Cf. Fed. R. Civ. P. 41(b).
Any further failure to comply with Federal Rule of Civil Procedure
45 will also be deemed in disregard of this Order and may subject him to
possible sanctions, including dismissal of this case. Cf. Fed. R. Civ. P.
41(b).

This includes, but is not limited to, Rule 45’s directive that

subpoenas may not be served by parties. See Fed. R. Civ. P. 45(b)(1).
Futch attempted to serve the Verizon subpoena himself. See doc. 85 at 7.
Per Rule 45, the person who serves the subpoena must not be a party to
the case. Fed. R. Civ. P. 45(b)(1) (“Any person who is at least 18 years
old and not a party may serve a subpoena.” (emphasis added)). A nonparty must serve any subpoenas Futch obtains, and Futch will bear the
burden of his own discovery expenses. See Wilkerson v. Georgia, 2015
WL 5449144, at *1 (S.D. Ga. Sept. 10, 2015).
Furthermore, Futch is DIRECTED to inform Verizon, through
whatever means he has been communicating with the company thus far,
that the subpoena he served is invalid and has been quashed. The Clerk
is DIRECTED to send a copy of this Order to: Verizon Security Subpoena
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Compliance, 180 Washington Valley Rd., Bedminster, NJ 07921. Finally,
the Clerk is DIRECTED not to issue any further subpoenas requested
by Futch unless directed by the Court. The Clerk is also DIRECTED to
file any subpoenas he requests–or any AO 88, AO 88B, or AO 88A forms
Futch may present in an attempt to obtain a subpoena without the
Court’s prior approval–on the docket.
SO ORDERED, this 5th day of June, 2024.

_______________________________
__________________________
CHRIISTOP
CHRISTOPHER
O HER
R L. RAY
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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