Patterson v. Western Carolina University et al

Filing 60

ORDER granting 48 Pro Se Motion to Quash of Robert Ford. Signed by District Judge Martin Reidinger on 05/22/2013. (Pro se litigant served by US Mail.)(thh)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:12cv03
DR. JOHN E. PATTERSON,

)
)
Plaintiff,
)
)
vs.
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WESTERN CAROLINA UNIVERSITY )
and
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UNIVERSITY OF NORTH CAROLINA, )
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Defendants.
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______________________________ __)

ORDER

THIS MATTER is before the Court on the pro se Motion to Quash of
Robert Ford [Doc. 48].
Robert Ford (Ford) is not a party to this action nor is he an officer of
either Defendant. Ford has been subpoenaed by the Plaintiff as a witness
at the upcoming trial of this matter. In his motion, Ford discloses that he
moved to Arkansas on May 9, 2013 and that, although he resided in North
Carolina for some period of time, he never changed his permanent address
from Arkansas to this state. He also has continuously owned a residence
in Arkansas for which he has paid real estate taxes. Ford states that it
would be a financial burden for him to return to North Carolina for the trial.

The Court notes that the Plaintiff has listed Ford as a witness through either
live or deposition testimony, thus indicating that the Plaintiff has a
deposition transcript of Ford’s testimony.
In response to the motion, the Plaintiff concedes that Ford now
resides in Arkansas at a place located more than one hundred miles from
the trial location.

[Doc. 50].

At the time the subpoena was issued,

however, Ford was within that one hundred mile radius. [Id.]. Counsel
further concedes that he has not located any case law disclosing whether
the radius is judged as of the date of the subpoena or the date of the trial.
[Id.].
Federal Rule of Civil Procedure 45 provides in pertinent part:
On timely motion, the issuing 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[.]
Fed.R.Civ.P. 45(c)(3)(A)(ii) (emphasis provided). The purpose of the Rule
is to protect the subpoenaed party from the burden of traveling more than
one hundred miles to attend the trial. Iorio v. Allianz Life Ins. Co. of North
America, 2009 WL 3415689 **5 (S.D.Cal. 2009) (because the subpoenas
required movants to travel more than 100 miles to attend trial, motion to
quash granted). The Rule is silent as to the time of issuance, concentrating
instead on the time when the subpoenaed person must attend the trial.
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Ford at this time resides in Arkansas and if the subpoena is not quashed,
he will be forced to travel more than one hundred miles in order to appear
at trial. The Court will therefore quash the subpoena.
In any event, Rule 45(3)(B)(iii) provides an issuing court with the
discretion to protect a person subpoenaed who is neither a party nor an
officer of a party to travel more than one hundred miles if such travel would
cause that person to incur substantial expense. Such is the case here.
Rule 45(3)(C) provides alternative conditions pursuant to which the
subpoenaed person could be ordered to appear. Fed.R.Civ.P. 45(3)(C).
The Plaintiff, however, has neither cited this provision nor argued that there
is a substantial need for the testimony and that Ford will be reasonably
compensated. As an alternative ruling, therefore, the Court would quash
the subpoena pursuant to Rule 45(3)(B) & (C).
IT IS, THEREFORE, ORDERED that the pro se Motion to Quash of
Robert Ford [Doc. 48] is hereby GRANTED.
Signed: May 22, 2013

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