Gray et al v. City of New York et al

Filing 88

ORDER granting 87 Motion to Compel. Ordered by Magistrate Judge Marilyn D. Go on 3/4/2016. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CAROL GRAY and MAHNEFAH GRAY as CoAdministrators of the ESTATE OF KIMANI
GEBARRIE GRAY,
ORDER
Plaintiffs,
14-CV-02488 (MKB)(MDG)
- against THE CITY OF NEW YORK, et al.,
Defendants.
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This order concerns a subpoena served
on:
TISHANA KING.
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Paul Johnson, counsel for defendants, has moved by letter
application dated March 2, 2016 to compel TISHANA KING (the
"deponent") to comply with a subpoena requiring her to produce
documents and testify at a deposition.

As set forth in Mr.

Johnson's letter, deponent failed to appear on the date set forth
in a subpoena served upon him.
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 David D. Siegel, Fed.

R. Civ. P. 45, Practice Commentaries, C45-26.
Having examined the subpoena and affidavit of service, the
Court finds that the subpoena in question appears to be valid and
properly served upon the deponent.

However, the defendants must

allow the deponent a reasonable time to comply.
CONCLUSION
The deponent, TISHANA KING, is hereby ORDERED to comply with
the subpoena.

She must immediately contact Mr. Johnson to

arrange for a mutually convenient date for her to appear to
produce documents requested by the subpoena and to give

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testimony.

Deponent must call Mr. Johnson by March 11, 2016 and

appear for a deposition to be held on or before March 25, 2016.
Ms. King is warned that if she fails to comply with this order,
she could be subject to contempt proceedings for failure to
respond to the subpoena and this order.

If found to be in

contempt of the subpoena or this order, she 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.
Defendants are directed to serve a copy of this order by
overnight mail upon the deponent.
SO ORDERED.
Dated:

Brooklyn, New York
March 4, 2016
/s/__________________________
MARILYN DOLAN GO
UNITED STATES MAGISTRATE JUDGE

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