United States of America v. Welti

Filing 18

ORDER granting 17 Petition Allowing Records Subpoena filed by United States of America. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

Case No. 09-11033
Honorable Thomas L. Ludington

v.
JEFFERY A. WELTI,
Defendant.
/
ORDER GRANTING PETITION TO ALLOW RECORDS SUBPOENA
On March 19, 2009, the government filed a complaint against Jeffery A. Welti, alleging
that Welti has not paid off student loans he obtained in November 1982 and September 1983.
After Welti was served but failed to answer, the government obtained a default judgment against
him pursuant to Federal Rule of Civil Procedure 55(a) (“When a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party’s default.”). The government was
awarded “a total judgment amount of $14,304.63 together with post judgment interest.” Entry of
J. by Default 1, ECF No. 7.
Writs of continuing garnishment then issued on May 29, 2009 and August 12, 2011. At
present, however, the government “has no knowledge of any assets or employment of [Welti] to
collect on the above debt.” Pl.’s Pet. ¶ 3, ECF No. 17. But the government believes there is a
company in possession of this information.
It alleges that is has “reason to believe and does believe that CENTRAL MORTGAGE
COMPANY has information leading toward assets and or employment of the Defendant that

would enable Plaintiff to satisfy said Judgment.” Id. at ¶ 4 (emphasis in original). Notably, the
government did not share those reasons with the Court.
As the government asserts in its brief, Federal Rule of Civil Procedure 34(c) permits a
court, so long as it complies with Rule 45, to compel a nonparty “to produce documents and
tangible things or to permit an inspection.” Fed. R. Civ. P. 34(c). Federal Rule of Civil
Procedure 45 permits a subpoena to issue which sets out “[a] command to produce documents,
electronically stored information, or tangible things or to permit the inspection of premises.”
Fed. R. Civ. P. 34(a)(1)(C).
The government argues that because it “seeks only document production” and not “the
appearance of anyone from said entity to testify,” the Court “must issue” the subpoena it
requests. Pl.’s Br. 1, ECF No. 17. This logic, however, is simply mistaken.
The mistake stems from the government’s strained reading of Rule 45. The Rule first
sets out the form a subpoena must take and the substance a subpoena must contain. Rule 45 then
sets forth how to determine which court should issue a valid subpoena, providing: “A subpoena
must issue as follows: . . . (C) for production or inspection . . . from the court for the district
where the production or inspection is to be made.” Fed. R. Civ. P. 45(a)(2)(C). Thus, this Court
“must issue” a subpoena in the manner prescribed by Rule 45, but whether to issue a subpoena at
all is reserved to the Court’s discretion. After all, Rule 34 is permissive, not mandatory. 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.” (emphasis added)).
The Court, however, is inclined to grant the petition to allow a records subpoena because
of the safeguards built in to Rule 45. Section (c) of the Rule is titled “Protecting a Person
Subject to a Subpoena.” Fed. R. Civ. P. 45(c). Subsection (2)(B) then provides that “[a] person

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commanded to produce documents or tangible things . . . may serve on the party or attorney
designated in the subpoena a written objection to inspecting, copying, testing or sampling any or
all of the materials.” Fed. R. Civ. P. 45(c)(2)(B). Because Central Mortgage Company (CMC)
will have the opportunity to object to the subpoena if it wishes, and because the government will
serve this order upon CMC along with the subpoena, the petition will be granted.
Accordingly, it is ORDERED that the government’s petition to allow records subpoena,
ECF No. 17, is GRANTED.
It is further ORDERED that the government is DIRECTED to serve a copy of this order
on Central Mortgage Company along with the subpoena (which must comply with the
requirements of Rule 45). The government is also DIRECTED to subsequently file proof of
service on the Court’s docket.
Dated: June 25, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney or party of record
herein by electronic means or first class U.S. mail on June
25, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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