Greenberg v. Bovis Lend Lease, Inc. et al
Filing
44
ORDER granting 40 Motion to Compel. The deponent, JOSEPH LUCCHESE, is hereby ORDERED to comply with the subpoena or file objections. He must either (a) contact Mr. O'Neill by March 9, 2012 to arrange for a mutually convenient date for him to give testimony at a deposition to be held on or before March 21, 2012; or, (b) if Mr. Lucchese believes he has a valid ground for not complying with the subpoena, he must file his opposition with the Court by March 9, 2012. A hea ring will be held on March 19, 2012 at 10:00 a.m. in Courtroom 11C at the United States Court House, 225 Cadman Plaza East, Brooklyn, New York. The deponent and plaintiff must attend. A copy of this order will be mailed to deponent on this date. Ordered by Magistrate Judge Marilyn D. Go on 2/29/2012. (Albertsen, Joanne)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARSHALL GREENBERG,
Plaintiff,
- against ORDER
BOVIS LEND LEASE, INC., et al.,
CV 2010-0897 (JBW)(MDG)
Defendants.
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This order concerns a subpoena served
on:
JOSEPH LUCCHESE.
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Michael O'Neill, counsel for plaintiffs, has moved by letter
application dated February 20, 2011 to compel JOSEPH LUCCHESE (the
"deponent") to comply with a subpoena requiring him to testify at a
deposition.
As set forth in Mr. O'Neill's letter, deponent
requested to re-schedule the date of the deposition set forth in a
subpoena served upon him.
Counsel consented, and the deponent has
failed to communicate with Mr. O'Neill to re-schedule the
deposition.
Rule 45 of the Federal Rules of Civil Procedure provides that
an attorney, as an officer of the court, may issue a subpoena on
behalf of a court in which the attorney is authorized to practice,
or for a court in a district in which a document production is
compelled by the subpoena.
Fed. R. Civ. P. 45(a)(3).
Valid
attorney-issued subpoenas under Rule 45(a)(3) operate as
enforceable mandates of the court on whose behalf they are served.
See, e.g., Advisory Committee Notes, 1991 Amendment to Fed. R. Civ.
P. 45; Board of Govenors of Federal Reserve System v. Pharaon, 140
F.R.D. 634, 641-42 (S.D.N.Y. 1991).
Absent an improperly issued subpoena or an “adequate excuse”
by the non-party, failure to comply with a subpoena made under Rule
45 may be deemed a contempt of the court from which the subpoena
issued.
Fed. R. Civ. P. 45(e).
See also Daval Steel Products v.
M/V Fakredine, 951 F.2d 1357, 1364 (2d Cir. 1991)
Indeed, the
judicial power to hold a non-party who has failed to obey a valid
subpoena in contempt is the primary mechanism by which a court
can enforce a subpoena.
See Practice Commentary to Rule 45(e),
28 U.S.C. ¶ C45-26.
CONCLUSION
The deponent, JOSEPH LUCCHESE, is hereby ORDERED to comply
with the subpoena or file objections.
He must either (a) contact
Mr. O'Neill by March 9, 2012 to arrange for a mutually convenient
date for him to give testimony at a deposition to be held on or
before March 21, 2012; or, (b) if Mr. Lucchese believes he has a
valid ground for not complying with the subpoena, he must file
his opposition with the Court by March 9, 2012.
A hearing will
be held on March 19, 2012 at 10:00 a.m. in Courtroom 11C at the
United States Court House, 225 Cadman Plaza East, Brooklyn, New
York.
The deponent and plaintiff must attend.
JOSEPH LUCCHESE is warned that if he fails to comply with
this order, he could be subject to contempt proceedings.
If
found in contempt of the subpoena or this order, he could be
subject to sanctions, including imposition of a monetary fine,
attorneys' fees and costs.
If the failure to comply continues,
the Court could issue a warrant of arrest for failure to comply
with a court order.
SO ORDERED.
Dated:
Brooklyn, New York
February 29, 2012
/s/____________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE
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