UNITED STATES OF AMERICA v. Madu

Filing 13

ORDER granting 10 Motion to Compel. Signed by US Magistrate Judge James E. Gates on 7/6/2012. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:11-CV-328-D
UNITED STATES OF AMERICA,
Plaintiff,
v.
SAMUEL C. MADU,
Defendant.

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ORDER

This case comes before the court on the motion (D.E. 10) by plaintiff United States of
America (“plaintiff”), pursuant to Fed. R. Civ. P. 37(a)(1), for an order compelling defendant
Samuel C. Madu (“defendant”) to appear, produce documents, and give testimony at a
deposition. Plaintiff has filed a memorandum (D.E. 11) in support of its motion. Defendant has
not filed a response. The motion has been referred to the undersigned for disposition pursuant to
28 U.S.C. §636(b)(1)(A). (See D.E. 12). For the reasons and on the terms set forth below, the
motion will be allowed.
BACKGROUND
Plaintiff commenced this action on 23 April 2011 to collect on unpaid student loan debt.
(Compl. (D.E. 1)). Defendant failed to answer or otherwise respond to the complaint, and on 2
August 2011, plaintiff filed a motion for entry of default (D.E. 4), which was allowed by the
clerk of court (D.E. 5). On 14 September 2011, plaintiff filed a motion for default judgment
(D.E. 6), which was allowed (D.E. 7), and judgment was entered (D.E. 9) against defendant on
22 December 2011.

DISCUSSION
I.

APPLICABLE LEGAL STANDARDS
In an action to collect federal judgment debt, the United States is permitted to take

discovery of the debtor’s financial condition in the manner authorized by the Federal Rules of
Civil Procedures. 28 U.S.C. § 3015(a). The Federal Civil Rules enable parties to obtain
information by serving requests for discovery, including the issuance of subpoenas.

See

generally Fed. R. Civ. P. 26-37, 45. Rule 45 outlines the procedure for issuing subpoenas, and
directs a party to respond as requested, serve objections, or timely file a motion to quash or
modify the subpoena. Fed. R. Civ. P. 45(c)(2)(B), (c)(3); see also In re Subpoena to Robert
Kochan, No. 5:07-MC-44-BR, 2007 WL 4208555, at *4 (E.D.N.C. 26 Nov. 2007) (“Rule 45
expressly permits a party to issue discovery subpoenas to a nonparty for documents and things in
the nonparty’s possession, custody, or control.”) (citing Fed. R. Civ. P. 45(a)(1)(C)). “Rule 45
adopts the standard codified in Rule 26” in determining what is discoverable.

Schaaf v.

SmithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 2005).
Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense . . . . For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). The rules of discovery, including Rule 26, are to be given a broad and
liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors,
No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. 27 Sep. 2000). While Rule 26 does
not define what is deemed relevant for purposes of the rule, relevance has been “‘broadly

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construed to encompass any possibility that the information sought may be relevant to the claim
or defense of any party.’” Equal Employment Opportunity Comm’n v. Sheffield Fin. LLC, No.
1:06CV889, 2007 WL 1726560, at *3 (M.D.N.C. 13 June 2007) (quoting Merrill v. Waffle
House, Inc., 227 F.R.D. 467, 473 (N.D. Tex. 2005)). The district court has broad discretion in
determining relevance for discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482,
489 (4th Cir. 1992). Rule 37 allows for the filing of a motion to compel discovery. Fed. R. Civ.
P. 37(a)(1).
II.

PLAINTIFF’S MOTION

The court finds that plaintiff’s motion is well grounded. Plaintiff previously served on
defendant a notice of deposition and subpoena duces tecum requiring him to appear for a
deposition on 23 February 2012 (D.E. 11-1). Defendant did not so appear or otherwise object.
Plaintiff is entitled to take defendant’s deposition, see 28 U.S.C. § 3015(a), and the documents it
seeks are manifestly relevant and discoverable (see D.E. 11-1 at p. 5). Plaintiff represents that it
attempted to confer with defendant, as required by Fed. R. Civ. P. 37(a)(1) and Local Civ. Rule
7.1(c), but that defendant did not respond. The motion will therefore be allowed on the terms set
forth below.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that plaintiff’s motion to compel (D.E. 10)
is ALLOWED. Plaintiff may serve on defendant a deposition subpoena decus tecum with an
attached list of documents sought in the same form as the subpoena duces tecum it previously
served on defendant (D.E. 11-1 at pp. 4-5), provided that the subpoena specify a date for the

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Makepeace ("defendant"). Defendant has submitted a Financial Affidavit for purposes of such
appointment (CJA Form 23). Defendant has failed to complete the "Obligations and Debts" section
of the form and has failed to enter the date on which he executed the form. Without a complete

deposition and related document production that is at least 14 days from the date of this Order.
application, the court is not able to determine whether defendant is entitled to appointment of

The subpoena duces tecum shall be served with a notice of the deposition and copy of this Order.

counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of

Defendant is hereby ORDERED to comply with the subpoena duces tecum served

such appointment after the filing of a new Financial Affidavit which contains the missing

pursuant to this Order. Failure by defendant to comply shall subject him to possible civil

information.

contempt (including being held in custody pending compliance) and other sanctions.
This order shall be filed under seal.

SO ORDERED, this the 6th day of July 2012.

SO ORDERED, this 23rd day of May 2011.

_________________________
James E. Gates
United States Magistrate Judge

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