Brockington v. Stevenson et al
ORDER granting Defendant Emergency Management Division's 60 motion to compel and directing Brockington to fully respond to this defendant's discovery requests by October 6, 2017. Defendant Emergency Management Di vision shall file an affidavit of fees and costs associated with its motion by October 6, 2017. It is further orderd that Brockington's 61 motion for subpoenas is denied with leave to re-file to provide the court with the additional information discussed in this order by October 6, 2017. Signed by Magistrate Judge Paige J. Gossett on 9/22/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Courtney L. Brockington,
Mr. Kim Stevenson, Director; Emergency
C/A No. 3:16-4026-MBS-PJG
Plaintiff Courtney L. Brockington, a self-represented litigant, filed this civil action pursuant
to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., against the
named defendants.1 This matter is before the court on the plaintiff’s motion for subpoenas. (ECF
No. 61.) In her motion and subsequent filings (see ECF No. 64), the plaintiff appears to request
subpoenas for six individuals to appear to testify at a deposition.
Management Division (“EMD”) filed a response to Brockington’s motion (ECF No. 63), and
Brockington replied (ECF No. 64). Additionally, Defendant EMD filed a motion to compel
Brockington’s responses to its interrogatories and requests for production (ECF No. 60).
Brockington filed a response in opposition (ECF No. 65), and EMD replied (ECF No. 68).
Brockington’s Motion for Subpoenas
Discovery in civil cases filed in this court is governed by the Federal Rules of Civil
Procedure. These rules are applicable to all litigants including those who are proceeding pro se.
The court previously issued a Report and Recommendation in which it recommended that
Defendant Kim Stevenson be summarily dismissed from this action. As of the date of this Order,
that Report and Recommendation remains pending.
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According to Rule 26(b)(1) of the Federal Rules of Civil Procedure, unless otherwise limited by
court order, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense.” Except under certain circumstances in which leave of the court is
required, see Fed. R. Civ. P. 30(b)(2), a party may take an oral deposition of another party without
leave of the court by serving written notice on the opposing party. See Fed. R. Civ. P. 30. The
deponent’s attendance may be compelled by subpoena pursuant to Rule 45.
The court’s authorization of a subpoena requested by an in forma pauperis plaintiff is subject
to limitations, including the relevance of the information sought as well as the burden and expense
to a person subject to the subpoena. See Fed. R. Civ. P. 26(b) & 45(d)(1); see also Jackson v.
Brinker, No. IP 91-471-C, 1992 WL 404537, at *7 (S.D. Ind. Dec. 21, 1992) (finding that the court
may refuse an indigent party’s request to have the United States Marshals Service serve a Rule 45
subpoena that is “frivolous, requests immaterial or unnecessary information, is unduly burdensome,
would be reasonably certain to result in the indigent’s responsibility for significant compliance costs
for which he cannot provide, or is otherwise unreasonable or abusive of the court’s process”). The
court notes that, although the plaintiff has been granted in forma pauperis status pursuant to 28
U.S.C. § 1915(d), such status does not mean that the plaintiff’s discovery expenses are underwritten
or waived. See, e.g., Badman v. Stark, 139 F.R.D. 601, 604 (M.D. Pa. 1991) (holding that an
indigent plaintiff seeking issuance of a subpoena must simultaneously tender the witness fees and
the estimated mileage allowed by law with the service of the subpoena); see also Tabron v. Grace,
6 F.3d 147, 159 (3d Cir. 1993) (“There is no provision in [28 U.S.C. § 1915] for the payment by the
government of the costs of deposition transcripts, or any other litigation expenses, and no other
statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil
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suit brought by an indigent litigant.”). While the plaintiff’s in forma pauperis status may permit
service of a subpoena by the United States Marshals Service without prepayment of the cost of
service,2 the court must limit a plaintiff’s discovery requests if the discovery sought is “cumulative
or duplicative, or can be obtainable from some other source that is more convenient, less
burdensome, or less expensive.” See Fed. R. Civ. P. 26(b)(2)(C).
Brockington is advised that subpoenas for the attendance at a deposition cannot be enforced
without proper prepayment of the appropriate witness and mileage fees. See Fed. R. Civ. P.
45(b)(1). Further, the defendants argue that Brockington did not provide them with reasonable
notice pursuant to Rule 30(b)(1) of the Federal Rules of Civil Procedure. Moreover, Brockington
has made no showing as to how any of the testimony she seeks is relevant to her claims and therefore
within the scope of permissible discovery under the Federal Rules of Civil Procedure. Additionally,
Brockington has not shown that she has arranged for service of her proposed subpoenas pursuant to
Rule 45 of the Federal Rules of Civil Procedure or, in the alternative, provided the court with
completed USM-285 forms so that service can be effected by the United States Marshals Service.
See 28 U.S.C. § 1915(d); see also Fed. R. Civ. P. 4(c)(3). Accordingly, to the extent Brockington
seeks subpoenas to command attendance at a deposition, her motion is denied with leave to timely
re-file to provide the court with the additional information discussed above.
The plaintiff is advised that the cost of service by United States Marshals Service is
considered an item of cost which may, at the court’s discretion, be included as judgment against the
plaintiff at the conclusion of the action pursuant to 28 U.S.C. § 1915(f) if the plaintiff does not
prevail. See Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir. 1981); 28 U.S.C. §§ 1920, 1921(a)(1)
(stating that the court may tax as costs fees of the United States Marshals Service, such as the service
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Defendant EMD’s Motion to Compel
Defendant EMD states in its motion that it served its first set of interrogatories and requests
for production on Brockington on May 22, 2017. After notifying Brockington that her responses
were past due, EMD ultimately received responses to its first set of interrogatories from Brockington
on July 25, 2017. EMD found Brockington’s responses to its interrogatories to be deficient, and
requested by letter dated August 1, 2017 that Brockington respond fully to its interrogatories and also
provide responses to its requests for production. When Brockington did not respond, EMD filed the
instant motion to compel. (ECF No. 60.)
In response to the defendant’s motion, Brockington provides supplemental responses to a few
interrogatories, but otherwise generally objects to “producing and disclosing such communication
that may damage [her] case.” (Pl.’s Resp Opp’n, ECF No. 65 at 1.) She also argues that the
defendant is not entitled to attorney’s fees and expenses because it did not consult with her before
filing its motion. (Id. at 2.) The defendant argues in its reply that Brockington’s supplemental
responses are still deficient. (ECF No. 68.)
Pursuant to Rule 37(a), if a motion to compel is granted, or if the requested discovery is
provided after the motion is filed, “the court must, after giving an opportunity to be heard, require
the party or deponent whose conduct necessitated the motion . . . to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A).
However, such payment should not be ordered if the movant did not make a good faith effort to
obtain the discovery prior to filing its motion, if the opposing party’s failure to produce the requested
discovery was substantially justified, or if other circumstances would make such an award of
expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).
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It is clear from the defendant’s motion that it attempted to in good faith to obtain the
requested discovery from Brockington prior to filing its motion. Moreover, because Brockington
is preceeding as a pro se litigant in this matter, the defendant was not required to consult with her
prior to filing its motion to compel. See Local Civil Rule 7.02 (D.S.C.). Additionally, Brockington
has provided no argument as to why she did not provide the requested discovery. Accordingly,
Defendant EMD’s motion to compel is granted. It is hereby
ORDERED that Brockington fully respond to Defendant EMD’s discovery requests by
October 6, 2017. Failure to comply may result in sanctions, including but not limited to dismissal
of the Complaint, pursuant to Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure. Defendant
EMD shall file an affidavit of fees and costs associated with its motion to compel by October 6,
2017. It is further
ORDERED that Brockington’s motion for subpoenas is denied with leave to re-file to
provide the court with the additional information discussed above by October 6, 2017.
IT IS SO ORDERED.
September 22, 2017
Columbia, South Carolina
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
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