McCarty v. Roos et al

Filing 283

ORDER Denying without prejudice 270 MOTION for discovery. Signed by Magistrate Judge Nancy J. Koppe on 7/9/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROBERT JOSEPH MCCARTY,

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Plaintiff(s),
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vs.
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JOHN V. ROOS, et al.,
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Defendant(s).
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__________________________________________)

Case No. 2:11-cv-1538-JCM-NJK
ORDER DENYING WITHOUT
PREJUDICE MOTION FOR
DISCOVERY FROM ALL
DEFENDANTS
(Docket No. 270)

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Pending before the Court is Plaintiff’s motion for discovery on all named Defendants. Docket No.

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270.1 Defendants filed a response and Plaintiff filed a reply. Docket Nos. 276, 279. Although not entirely

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clear, Plaintiff’s motion appears to seek a Court order that he may obtain discovery from those Defendants

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who have been dismissed from this case. Cf. Docket No. 269 (explaining that all claims have been

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dismissed except those “seeking prospective injunctive relief against defendants Charlene Hoerth and

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Patrick Saunders in their official capacities”). Defendants’ response indicates that Plaintiff has served

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discovery on dismissed Defendants. See Docket No. 276 at 3. Defendants argue that “[n]either rule 33 or

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34 allow Plaintiff to serve discovery on a nonparty, which would include all parties that have been

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previously dismissed. The dismissed individuals and agencies are no longer parties subject to FRCP 26,

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33 or 34.” Id.

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The pending motion also seeks permission to file an interlocutory appeal. See Docket No. 270.
That aspect of the motion will be addressed in a separate order.

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At this time, the Court does not have sufficient information regarding the discovery propounded by

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Plaintiff on the dismissed Defendants. While Defendants are correct that Rules 33 and 34 apply only to

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parties, they overlook the fact that discovery may be sought from non-parties pursuant to Rule 45. Of

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course, discovery subpoenas served under Rule 45 have limits. “A Rule 45 subpoena must fall within the

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scope of proper discovery under Fed.R.Civ.P. 26(b)(1), which limits discovery to ‘any matter, not

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privileged, that is relevant to the claim or defense of any party in the pending action.’” Wells Fargo Bank,

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N.A. v. Iny, 2014 WL 1796437, *3 (D. Nev. May 6, 2014) (quoting Widevoice Commc’ns v. Qwest

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Commc’ns Co., 2012 WL 1439071 (D. Nev. Apr. 26, 2012)). To the extent Plaintiff seeks discovery from

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any dismissed Defendant, he must comply with the procedures outlined in Rule 45 and such discovery must

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be limited to information relevant to his claims that remain in this case (i.e., those claims “seeking

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prospective injunctive relief against defendants Charlene Hoerth and Patrick Saunders in their official

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capacities”).

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In light of the above, Plaintiff’s motion for discovery is hereby DENIED without prejudice.

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IT IS SO ORDERED.

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DATED: July 9, 2014

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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