Basich v. Patensude & Felix, APC

Filing 3

ORDER denying 1 motion to compel Ger Xiong's compliance w/subpoena. Signed on 7/13/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
MARY BASICH,
Plaintiff,
vs.

PATENAUDE & FELIX, APC, et al.,
Defendants.

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No. 12-9013-MC-W-FJG

ORDER
Currently pending before the Court is plaintiff’s Motion to Compel Compliance
with Subpoena (Doc. # 1).
Plaintiff filed suit against the defendants in the Northern District of California
alleging violations of the Fair Debt Collection Practices Act, the Fair Credit Reporting
Act and the California Fair Debt Collection Practices Act for actions by defendants in
attempting to collect on a credit card debt and to execute on a judgment related to the
account. In connection with this case, plaintiff seeks to take the deposition of Ger
Xiong. An Amended Notice of Deposition was sent to counsel for defendants on June
20, 2012, scheduling the deposition for June 29, 2012. However, the witness was not
located and served with the Subpoena until June 27, 2012 at 7:15 p.m. in the evening.
Plaintiff’s counsel in the Motion to Compel states that despite being served with the
subpoena, the witness failed to appear and testify on June 29, 2012. Plaintiff’s counsel
states that he notified defendants’ counsel of the successful service. It also appears
that discussions occurred between counsel regarding the witnesses’ availability, but no

resolution was reached. Plaintiff’s counsel requests that the Court hold defendants’
counsel in contempt of court for improperly instructing a witness to disregard a
subpoena and improperly soliciting a witness. Additionally, plaintiff requests that
defendants’ counsel be sanctioned for failing to cooperate in discovery and for the costs
and attorney fees associated with the deposition and that the witness be ordered to
appear and testify as permitted by her medical condition.
Defendants’ counsel responds that she informed plaintiff’s counsel that she was
unavailable on the date the deposition was originally scheduled for. Additionally,
defendants’ counsel expressed to plaintiff’s counsel her opinion that the witnesses’
testimony was not relevant and was cumulative.
Fed.R.Civ.P. 45(c)(3) states in part:
(A) When Required. On timely motion, the issuing court must quash or
modify a subpoena that:
(I) fails to allow a reasonable time to comply;
...
(iv) subjects a person to undue burden.
In Fox v. Traverse City Area Public Schools Board of Education, No. 1:07-CV956, 2009 WL 724001, (W.D.Mich. Mar. 10, 2009), the Court stated, “[t]wo business
days, more or less, even with the intervening weekend, is not an adequate period of
time to comply with a subpoena.” Similarly, in Paul v. Stewart Enterprises, Inc., No.
Civ.A 99-3441, 2000 WL 1171120, (E.D.La. Aug. 16, 2000), the Court stated, “[o]ne
business day’s notice is clearly unreasonable in light of the requirement in Fed.R.Civ.P.
45(c)(2)(B) that a subpoenaed person be permitted 14 days to object. In Blair v. City of
Omaha, No. 8:07CV295, 2009 WL 3631070, (D.Neb. Oct. 26, 2009), the Court quashed
a subpoena because it did not provide the witness with a reasonable time to comply, as
it was served only two days before the deposition date. In the instant case, serving the
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deposition late in the evening of June 27, 2012, and expecting the witness to appear at
10:00 a.m. on June 29, 2012, was clearly unreasonable. Additionally, based on the
declarations of defendant’s counsel and also of the witness, Ger Xiong, it appears that
this witnesses’ testimony would simply be cumulative to the testimony of others who
have already been deposed.
Accordingly, for the reasons stated above, the Court hereby DENIES the Motion
to Compel Ger Xiong’s Compliance With Subpoena (Doc. # 1).

Date: July 13, 2012
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

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