Anderson vs. Caldwell County Sheriff's Office, et al

Filing 140

ORDER striking 121 Motion to Quash without prejudice. Signed by Magistrate Judge Dennis Howell on 06/14/11. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:09cv423
JERRY ANDERSON,

)
)
Plaintiff,
)
)
v.
)
)
CALDWELL COUNTY SHERIFF’S
)
OFFICE, et al.,
)
)
Defendants.
)
___________________________________ )

ORDER

Pending before the Court are the Objections to Subpoenas and Motion to Quash
filed by third parties Jay Gaither and Eric Bellas. Plaintiffs served subpoenas on Mr.
Gaither and Mr. Bellas directing Mr. Gaither to produce documents and Mr. Bellas to
appear for a deposition. These third parties then filed objections to the subpoenas,
moved to quash the subpoenas, and moved for the entry of a protective order.
As a threshold matter, movants’ motion fails to comply with the Court’s Local
Rules, which require the filing of a motion and a separate brief. LCvR 7.1. Movants
have not filed a separate brief. Second, movants have not attached the subpoenas they
seek to quash to their motion. This Court cannot evaluate whether a subpoena is
proper if the party moving to quash it fails to provide a copy of the subpoena to the
Court. Third, assuming that the subpoenas at issue were issued by this Court since
movants filed their Motion to Quash here, Federal Rule of Civil Procedure 45, not the
North Carolina Rules of Civil Procedure, governs the issue of whether or not this
Court should quash the subpoena. Fourth, objections to a subpoena are not filed with
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the Court. As Rule 45 makes clear, the party served with a subpoena “may serve on
the party or attorney designated in the subpoena a written objection . . .” to the
subpoena. Fed. R. Civ. P. 45(c)(2)(B). This objection must be served on the party or
attorney by the earlier of the time specified in the subpoena for compliance or fourteen
days after the subpoena is served. Id. It is unclear whether movants have complied
with the requirements of Rule 45(c)(2)(B).

Finally, movants failed to file a

certification that they have conferred or attempted to confer with Plaintiff in order to
attempt to resolve this dispute prior to filing their motion, as required by both the
Local Rules and the Federal Rules of Civil Procedure. LCvR 7.1(B); Fed. R. Civil P.
26(c)(1). As a result of movants failure to comply with the requirements of the Local
Rules and the Federal Rules of Civil Procedure, the Court STRIKES the Motion to
Quash [# 121] without prejudice.

Signed: June 14, 2011

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