Gatheright v. Clark et al

Filing 77

ORDER denying 47 Motion to Compel. Signed by Magistrate Judge S. Allan Alexander on 7/8/15. (mhf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

LESLY GATHERIGHT,

PLAINTIFF

V.

CIVIL ACTION NO. 3:12-CV-111-SA-SAA

NORMAN CLARK, et al.,

DEFENDANTS

ORDER
Pro se plaintiff Lesly Gatheright has filed several motions which all stem from an attempt
to have this court compel non-parties to answer questions by way of deposition upon written
examination. Docket 47, 49, 52, 53, 58. Plaintiff’s first motion to compel, Docket 47, asks the
court to require the State of Mississippi, Judge Robert Elliott, James Hood, former governor
Haley Barbour, Jerry (Lon) Stallings, and Honey Ussery to submit to deposition by written
questions under Rule 31 of the FEDERAL RULES OF CIVIL PROCEDURE. Having duly considered
the motion, including all evidence offered by the plaintiff, the court denies the motion on the
grounds that plaintiff has failed to satisfy the requirements of Rule 31.
Plaintiff’s various motions, including the present, seek discovery responses from persons
or entities who are not named as parties in this case. Many, if not all, of these non-parties are the
same non-parties this court previously declined to allow plaintiff to amend his complaint to add
as parties to this action. Docket 54. Although Rules 33, 34 and 36(a)(1) of the FEDERAL RULES
OF CIVIL PROCEDURE

allow a party to propound interrogatories, requests for production or

requests for admissions only to other parties to the lawsuit, Rule 31 does permit non-parties to be
deposed upon written examination. However, Rule 31—a cumbersome process at best and one

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that is rarely used if other alternative means of deposition are available—spells out the proper
procedures that must be followed leading up to, including, and following such a Rule 31
deposition by written questions, and there is no evidence in the record that plaintiff has complied
with those procedures before seeking relief from the court. As with all federal practice, these
procedures must be followed without fail, particularly when they are applied to persons or
entities not parties to the action.
In this instance, while plaintiff may certainly be permitted under the law to take
depositions of non-parties, there is no question that there have been several procedural
deficiencies which prevent this court from compelling responses. First, notice appears wholly
insufficient under the Rule 31(A)(3). The docket contains no evidence that plaintiff has filed
notices of service on any of the non-parties sought to be deposed or on the parties to the action as
required. Nor does plaintiff appear to have obtained service of subpoenas upon the subjects he
desires to question as required by Rule 31(a)(1). Likewise, the docket contains no information to
satisfy the court that plaintiff has made the necessary arrangements with an officer qualified to
take the deponents’ testimony, then prepare and certify the depositions and comply with the
remaining provisions of Rule 31(b).
Finally, although plaintiff has not filed notices on the docket, it appears that the discovery
tools originally propounded to the non-parties in question were improper even beyond the issue
of notice. There are references in some exhibits attached to plaintiff’s motions to “Request for
Admission,” which were apparently sent by plaintiff to at least two of the non-parties and which
were rejected as improper by Special Assistant Attorney General Paul E. Barnes. See, e.g.,
Docket 49-1, 58. Rule 31 permits deposition of non-parties upon written examination and
provides procedure that must be followed in such an event, but it does not permit plaintiff to

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propound interrogatories, requests for production, or requests for admissions toward those nonparties.
Despite plaintiff’s broad assertions of various constitutional violations, and the court’s
typical leniency given to pro se plaintiffs, plaintiff has wholly failed to satisfy the requirements
of the FEDERAL RULES OF CIVIL PROCEDURE. As a consequence, it is
ORDERED
that plaintiff’s first motion to compel non-parties to respond to discovery, Docket 47, is
DENIED.
This, the 8th day of July 2015.

__/s/ S. Allan Alexander______________
UNITED STATES MAGISTRATE JUDGE

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