Turley v. ISG Lackawanna, Inc. et al
Filing
149
DECISION AND ORDER DENYING Plaintiff's 144 Motion for Subpoena to Compel Live Testimony in Court or to Allow Contemporaneous Transmission of Live Testimony. Signed by William M. Skretny, Chief Judge U.S.D.C. on 4/18/2012. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ELIJAH TURLEY,
Plaintiff,
v.
DECISION AND ORDER
06-CV-794S
ISG LACKAWANNA, INC., et al.,
Defendant.
1.
Presently before this Court is Plaintiff’s Motion for Subpoena to Compel Live
Testimony in Court or to Allow Contemporaneous Transmission of Live Testimony.
(Docket No. 144.) Plaintiff requests that this Court act pursuant to Rule 45(c)(3)(C) of the
Federal Rules of Civil Procedure and order the appearance of witnesses Frank Pelc and
Kevin Daley for purposes of testifying at trial. Alternatively, Plaintiff asks this Court to order
the witnesses’ testimony by contemporaneous transmission. Defendants oppose Plaintiff’s
motion and argue that this Court lacks the power to issue the requested relief.
2.
Pursuant to Rule 45(a), this Court may issue a subpoena directing a person
to attend and testify at a hearing or trial. Such a subpoena must issue “from the court for
the district where the hearing or trial is to be held.” Fed. R. Civ. P. 45(a)(2). Further, a
district court’s power to subpoena a witness is limited to “within 100 miles of the place
specified for the deposition, hearing, trial, production, or inspection.” Fed. R. Civ. P.
45(b)(2)(B). Indeed, on a timely motion, a court must quash or modify a subpoena that
“requires a person who is neither a party nor a party’s officer to travel more than 100 miles
from where that person resides, is employed, or regularly transacts business in person.”
Fed. R. Civ. P. 45(c)(3)(A)(ii). The geographic limitation on a court’s power to subpoena
witnesses has been recognized as a factor weighing in favor of transfer. See, e.g., Amick
v. Am. Express Travel Related Servs. Co., No. 09 Civ. 9780(AKH), 2010 WL 307579, at
*3 (S.D.N.Y. Jan. 26, 2010) (noting that “[t]ransfer is also appropriate because this Court
cannot compel the attendance at trial of witnesses residing in North Carolina”); Lappe v.
Am. Honda Motor Co., 857 F. Supp. 222, 230 (N.D.N.Y. 1994) (“The vast majority of the
fact witnesses . . . are citizens of Saratoga County, New York, which is outside the 100mile limitation on federal subpoena authority set forth in Fed. R. Civ. P. 45(c)(3)(A)(ii).”).
3.
Here, Plaintiff concedes that Mr. Pelc lives in Fort Myers Beach, Florida, and
Mr. Daley lives in Aurora, Minnesota. (Pl.’s Reply Mem. 2 n. 1, Docket No. 146.) There
is no dispute that these residences fall outside the 100-mile limit of this Court’s subpoena
power. Therefore, this Court lacks the power to compel the attendance of either witness.
Similarly, Rule 43, on which Plaintiff relies for the proposition that this Court can order their
testimony by contemporaneous transmission, does not empower a court to order the
witnesses to testify by videoconferencing, but only specifies a preference for taking
testimony in open court, at trial. Fed. R. Civ. P. 43(a).
4.
Plaintiff argues, nevertheless, that other courts have permitted such
testimony, even where witnesses were outside the subpoena range. However, none of the
cases Plaintiff cites stand for that proposition. See Scott Timber, Inc. v. United States, 93
Fed. Cl. 498, 499 (Fed. Cl. 2010) (observing that United States Court of Federal Claims
has nationwide jurisdiction, of which a “concomitant aspect . . . is the power to issue a
subpoena requiring a witness to appear and testify at a trial to be held more, and in some
instances considerably more, than 100 miles from the witness’ residence”); In re Rand Int’l
Leisure Prods., LLC, No. 10-71497-ast, 2010 WL 2507634, at *3 (Bankr. E.D.N.Y. June
16, 2010) (permitting witnesses to appear by videoconferencing); In re Vioxx Prods. Liab.
2
Litig., 439 F. Supp. 2d 640, 642 (E.D. La. 2006) (permitting subpoena of corporate party
officer). This is not a case where a party has witnesses who are willing to appear, but are
impeded by distance or other hardship. It is also not a case involving witnesses who are
a party to the underlying litigation, or an officer to one of the party’s involved. Accordingly,
this Court lacks the power to grant Plaintiff’s request, and the motion will be denied. See
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Ams., 262 F.R.D. 293, 302 (S.D.N.Y.
2009) (“The Court agrees with the Bondholders that the subpoenas served on individual
employees who are not corporate officers, and who reside outside the geographic scope
of Rule 45, must be quashed.”)
IT HEREBY IS ORDERED, that Plaintiff’s (Docket No. 144) Motion for Subpoena
to Compel Live Testimony in Court or to Allow Contemporaneous Transmission of Live
Testimony is DENIED.
SO ORDERED.
Dated: April 18, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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