Caplin v. Lackawanna County et al
Filing
46
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/30/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CASEY CALPIN,
Plaintiff,
v.
LACKAWANNA COUNTY,
BRIAN LOUGHNEY, in his
individual capacity,
Defendants
:
:
:
CIVIL ACTION NO. 3:16-2013
:
(JUDGE MANNION)
:
:
MEMORANDUM
Pending before the court is plaintiff Casey Calpin’s motion to compel a
response to her subpoena duces tecum under Rule 45 she served on an
attorney who does not represent a party in this case and, she seeks him to
produce documents he obtained during depositions in another federal civil
case he handled. (Doc. 32). Plaintiff indicates that she served her subpoena
on non-party Attorney Matthew Comerford and that he failed to respond to it.
Based upon the following analysis, the court will DENY the plaintiff’s motion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Since the court recently detailed the procedural and factual background
of this case in its October 20, 2017 Memorandum, (Doc. 43), denying
plaintiff’s Doc. 28 motion, they will not be fully repeated herein. Suffice to say
that plaintiff filled her motion to compel Attorney Comerford to respond to her
subpoena on September 13, 2017, (Doc. 32), and the next day she filed her
1
brief in support, (Doc. 33). While plaintiff served defendants’ counsel, she
failed to serve Attorney Comerford with either her motion or her brief.
Defendants’ counsel did not concur in plaintiff’s motion, but he did not file a
brief in opposition to it. It appears that since Attorney Comerford was not
served with plaintiff’s motion, he did not respond to it.
Briefly, as a backdrop to the current motion, Attorney Comerford
represented a plaintiff in a federal civil rights case, namely, Pleasants v.
Lackawanna County, Civil No. 13-1611, M.D.Pa.1, which was closed on April
1, 2016, after a settlement was reached. Calpin was a defendant in the
Pleasants case. According to plaintiff Calpin, various documents were
introduced during depositions in the Pleasants case, including a report of
Lackawanna County Prison (“LCP”) Captain Robert Mcguire, which plaintiff
contends “will show Lackawanna County was aware of inmate Pasco’s
allegations [regarding sexual abuse of female inmates at LCP by prison staff]
in January 2011 and took no action at that time.” Plaintiff states that the
documents will “negat[e] any type of liability against [her in the instant case]
since Lackawanna County was [already] aware of the inmate’s allegations”
well before she testified at a deposition in the Pleasants case on March 1,
2016. (Doc. 33). Defendants in this case maintain that they terminated plaintiff
1
In Pleasants v. Lackawanna County, a former female inmate sued
Lackawanna County and LCP officials under §1983 alleging that they knew
male correctional officers at LCP were sexually assaulting female inmates,
including Pleasants, and that they failed to take any action.
2
from her position at LCP based on facts to which she admitted in her
deposition in Pleasants, namely, not being truthful in the LCP investigation
and failing to follow protocols in the LCP manual.
II.
DISCUSSION
According to plaintiff’s August 24, 2017 subpoena attached to her
motion, (Doc. 32-1), she directed Attorney Comerford to provide her with
“[a]ny and all exhibits or documents referred to in any deposition or hearing
transcripts taken in the matter of Pleasants v. Lackawanna County, 15-cv2433 and/or Shawna Mecca v. Black, 13-cv-1121, including but not limited to
Captain Maguire’s report.”
Plaintiff’s subpoena to Attorney Comerford was issued under
Fed.R.Civ.P. 45. The court in Highland Tank & Mfg. Co. v. PS Intern., Inc.,
277 F.R.D. 374, 379 (W.D. Pa. 2005), stated:
Generally, Federal Rule of Civil Procedure 45 authorizes the
issuance of a subpoena commanding a person to whom it is
directed to attend and give testimony, or to produce and permit
the inspection of designated documents. [footnote omitted]. Rule
45(a)(1)(C). Rule 45 is the only discovery method whereby
information may be obtained from a nonparty to the suit. See Adv.
Comm. Note on 1991 Amendments to Fed.R.Civ.P. 45.
Initially, Rule 45(b)(1) states that “[s]erving a subpoena requires
delivering a copy to the named person.” The proof of service and the
declaration of server on the subpoena filed as an exhibit with the court are
3
blank. Thus, there is no indication that Attorney Comerford was personally
served with plaintiff’s subpoena as required. Plaintiff’s subpoena also contains
the wrong civil number for the Pleasants case.
Attorney Comerford neither responded to plaintiff’s subpoena nor did he
object to it. Rule 45 provides protections for a non-party who is the subject of
a subpoena. “After being served with a subpoena duces tecum, a nonparty
may object to producing any or all of the requested information by serving a
written objection on the party or person designated in the subpoena.” In re
Domestic Drywall Antitrust Litigation, 300 F.R.D. 234, 238 (E.D.Pa. 2014).
Further, Attorney Comerford did not file a motion to quash the subpoena
served on him under Rule 45(d). No doubt that “only the non-parties whom
are served with the subpoenas may move to have them quashed under [Rule
45].” CedarCrestone Inc. v. Affiliated Computer Services LLC, 2014 WL
3055355, *3 (M.D.Pa. July 3, 2014) (citation omitted). Regardless, the
subpoena to Attorney Comerford is clearly overbroad and compliance with it
would be unduly burdensome. Discovery requests can be limited to protect
the person to whom they are directed from “annoyance, embarrassment,
oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
Plaintiff states that her “request for documents [to Attorney Comerford]
is relevant to her claim since it refutes Defendants’ alleged reason for her
termination since Lackawanna County knew of inmate Pasco’s allegations
way before Plaintiff disclosed the same in November 2011.” (Doc. 33 at 2).
4
Nonetheless, plaintiff fails to indicate that her counsel conferred with Attorney
Comerford before she filed her motion to compel and, as mentioned, she
appears to have failed to even serve Comerford with her motion. The law is
clear that only “[a]fter providing notice to the subpoenaed nonparty, the
subpoenaing party may move the court to compel compliance with the
subpoena.” Domestic Drywall Antitrust Litigation, 300 F.R.D. at 238 (citing
Rule 45(d)(2)(B)(I)).
Nor does plaintiff indicate that she gave defendants in
this case prior notice of her subpoena to Attorney Comerford as required. “A
party issuing a subpoena to a nonparty for the production of documents
during discovery must provide prior notice to all parties to the litigation.” Id. at
*6 (citing Fed.R.Civ.P. 45(a)(4) (“[B]efore [a subpoena duces tecum] is served
on the person to whom it is directed, a notice and a copy of the subpoena
must be served on each party.”)).
Moreover, even though the documents plaintiff seeks appear to be
relevant under Rule 26(b)(1), which allows the discovery of “any nonprivileged
matter that is relevant to any party’s claim or defense”, the court sees no
reason why plaintiff could not have obtained the documents herself during
discovery in this case, and plaintiff does not state any such reasons in her
motion and brief. In fact, the court extended the discovery deadline to August
30, 2017 which provided both parties with ample time to obtain their evidence.
(Doc. 27). Additionally, since Calpin was a party defendant in the Pleasants
case, she fails to explain why she could not obtain the documents at issue
5
from her counsel in that case. Thus, plaintiff fails to show a substantial need
regarding why the requested documents must be produced by Attorney
Comerford via her subpoena.
III.
CONCLUSION
For the foregoing reasons, the court will DENY plaintiff’s motion to
compel Attorney Comerford’s response to her subpoena duces tecum under
Rule 45. (Doc. 32). An appropriate order shall follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: October 30, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2013-03.wpd
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?