French v. Central Credit Services, et al

Filing 59

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the Docket Text Order dated July 26, 2017 [ECF No. 56 ] is VACATED and Plaintiff's Amended Motion to Serve Subpoenas for Deponents to Appear at a Deposition is DENIED for failure to comply wit h Fed. R. Civ. P. 45. IT IS FURTHER ORDERED that the Clerk of the Court shall issue to Plaintiff six blank Subpoena to Testify at a Deposition in a Civil Action forms. IT IS FINALLY ORDERED that if Plaintiff submits a request for service by the Uni ted States Marshals Service, Plaintiff must also submit a memorandum demonstrating the relevance and materiality of the information requested, the necessity of the particular testimony to prove Plaintiffs case for each proposed deponent, and how he will provide the necessary costs related to the depositions. Signed by District Judge Ronnie L. White on 7/28/2017. (NEB) (6 Subpoenas Issued and mailed to Plaintiff.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOSEPH LAMONT FRENCH,

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Plaintiff,
v.

CENTRAL CREDIT SERVICES, et al. ,
Defendants.

No. 4:16CV1654 RLW

MEMORANDUM AND ORDER

This matter is before the Court upon review of its record. Plaintiff proceeding pro se has
requested that the Court serve subpoenas on six witnesses to appear at a deposition scheduled at
the law firm of Defendants' counsel. The Court granted Plaintiffs motion in a Docket Text
Order dated July 26, 2017 (ECF No. 56). However, upon further consideration, the Court will
vacate its previous Order and order Plaintiff to comply with Rule 45 of the Federal Rules of Civil
Procedure.
The Court notes that Plaintiffs motion contains the names and addresses of six
individuals, along with a date and location for the depositions to take place. Even though
Plaintiff is pro se, he is still required to comply with the rules of this Court, including the
issuance of subpoenas to testify at a deposition in a civil action. Such subpoenas are found on
the Court' s website. However, for the convenience of the Plaintiff, the Court will order the
Clerk of the Court to include six blank subpoena forms with a copy of this Memorandum and
Order.
Rule 45 also requires to Plaintiff to specify a method for recording the testimony, which
Plaintiff has not provided. Fed. R. Civ. P. 45(a)(l)(B). Further, Plaintiff is required to pay the

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witness fees for one day's attendance, along with mileage. Fed. R. Civ. P. 45(b)(l). Finally, to
the extent that Plaintiff intends to request service by the United States Marshals Service, "[t]he
Court has the 'discretionary power to refuse to subpoena witnesses and to prevent abuse of its
process in both civil and criminal proceedings."' Stockdale v. Stockdale, No. 4:08-CV-1773
CAS, 2009 WL 4030758, at *1 (E.D. Mo. Nov. 18, 2009) (quoting Manning v. Lockhart, 623
F.2d 536, 539 (8th Cir. 1980) (per curiam)). "This power should be exercised to protect the
resources of the Court and the Marshals Service, and to prevent harassment and undue expense
of other parties and non-parties. Id. (citation omitted).
Courts exercising inherent supervisory power over in forma pauperis subpoenas
generally consider factors such as the relevance and materiality of the information requested and
the necessity of the particular testimony to proving the indigent plaintiffs case. See Jackson v.
Brinker, No. IP 91-471-C, 1992 WL 404537, at *6 (S.D. Ind. Dec. 21, 1992); see also Nesbitt v.
Riley, No. 0:14-2788-RMG-PJG, 2015 WL 1517505, at *3 (D.S.C. Apr. 1, 2015) ("The court's

authorization of a subpoena requested by an in forma pauper is plaintiff is subject to limitations,
including the relevance of the information sought as well as the burden and expense to a person
subject to the subpoena."). However, Plaintiffs informa pauperis status "does not mean that the
plaintiffs discovery expenses are underwritten or waived." Nesbit, 2015 WL 1517505, at *3.
"To the extent Plaintiff wishes to take the depositions of non-defendants, he must still issue
subpoenas under Fed. R. Civ. P., notwithstanding Defendants' agreement to allow non-party
~epositions.

2009).

Sykes v. Carroll, No. CIV.A. 06-72-JJF, 2009 WL 1147902, at *1 (D. Del. Apr. 27,

Plaintiff may not issue subpoenas without paying the required fees. Id.; see also Fed. R.

Civ. P. 45(b)(l) ("Serving a subpoena requires delivering a copy to the named person and, if the
subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the

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mileage allowed by law."). Further, depositions require a method ofrecording which would
involve expenses the Court is not authorized to pay. Sykes, 2009 WL 114 7902, at * 1.
Nothing in the record provides the Court with a basis to conclude that Plaintiff has the
ability to provide for the costs of his requested depositions. The Clerk of the Court will be
directed to send Plaintiff six blank subpoena forms, which Plaintiff shall complete and return to
this Court for signature of the Clerk. Plaintiff is then responsible for serving the non-party
deponents in compliance with Fed. R. Civ. P. 45(b)(l). Should the Plaintiff request service by
the U.S. Marshal, the Court cautions if a court finds that an indigent party's requests for issuance
and service of a subpoena directed to a non-party "is frivolous, requests immaterial or
unnecessary information, is unduly burdensome, would be reasonably certain to result in the
indigent' s responsibility for significant compliance costs for which he cannot provide, or is
otherwise unreasonable or abusive of the court's process, the court may relieve the Marshals
Service of its duty under§ 1915(c) to serve the subpoena." Jackson, 1992 WL 404537, at *6.
Any request for service by the U.S. Marshal must include a memorandum demonstrating the
relevance and materiality of the information requested and the necessity of the particular
testimony to prove Plaintiff's case, as well as how he will provide the necessary costs related to
the depositions.
Accordingly,
IT IS HEREBY ORDERED that the Docket Text Order dated July 26, 2017 [ECF No.

56] is VACATED and Plaintiff's Amended Motion to Serve Subpoenas for Deponents to
Appear at a Deposition is DENIED for failure to comply with Fed. R. Civ. P. 45.
IT IS FURTHER ORDERED that the Clerk of the Court shall issue to Plaintiff six

blank Subpoena to Testify at a Deposition in a Civil Action forms.

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IT IS FINALLY ORDERED that if Plaintiff submits a request for service by the United

States Marshals Service, Plaintiff must also submit a memorandum demonstrating the relevance
and materiality of the information requested, the necessity of the particular testimony to prove
Plaintiffs case for each proposed deponent, and how he will provide the necessary costs related
to the depositions.
Dated this 28th day of July, 2017.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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