Bryant v. Tharp et al

Filing 25

ORDER denying 22 Motion to Compel, with leave to refile. Signed by Magistrate Judge Kaymani D West on 3/15/2012.(hcic, )

IN THE UNITED STATES DISTRICT COURT
IN THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
C/A No.: 4:11-cv-02161-TLW-KDW
CYNTHIA R. BRYANT, as Parent and
Guardian ad litem of C.C.B., a minor,
ORDER
Plaintiff,
vs.
LOUIS C. THARP AND JOHN DOE,
Defendants.
This matter is before the court on the motion of defendant Louis Tharp (“Defendant”) to
compel the South Carolina Department of Juvenile Justice (“DJJ”) and all departments located
within DJJ to comply with his January 6, 2012 subpoena of records relating to Plaintiff. ECF No.
22. In response to the subpoena, DJJ’s General Counsel informed Defendant that DJJ was “not
authorized to comply” with the subpoena “pursuant to state law and [DJJ] policy.” ECF No. 22-2
(Jan. 10, 2012 Ltr.). On January 24, 2012, Defendant filed this motion to compel. Plaintiff has
not opposed this motion, nor has nonparty DJJ filed anything with the court objecting to
Defendant’s motion. However, it does not appear that Defendant provided DJJ with notice of this
motion. According to the certificate of service attached to the motion, Defendant only served
Plaintiff’s counsel with the instant motion. See ECF No. 22-1 at 5.
Federal Rule of Civil Procedure 45(c)(2)(B) requires a nonparty to provide written
objections to a subpoena within the earlier of 14 days after it was served or before the time
specified for compliance. The letter from DJJ’s General Counsel to defense counsel (ECF No.
22-2) satisfies that requirement. After such objections are made to a subpoena, the party that
served the subpoena may “at any time” seek the court’s order compelling production pursuant to

the subpoena. Fed. R. Civ. P. 45(c)(B)(i). However, the party must notify the “commanded
person” that it is requesting such an order. Id.
Defendant seeks an order requiring DJJ, the “commanded person” to comply with his
subpoena. Based on the only information available to the court at this time, Defendant has not
notified DJJ of its motion. Accordingly, Defendant’s motion to compel (ECF No. 22) is denied
with leave to refile. Upon compliance with Rule 45(c)(B)(i), Defendant may re-submit a similar
motion. If such a motion is filed, both Plaintiff and DJJ should provide any responsive
memoranda within 14 days.
IT IS SO ORDERED.

March 15, 2012
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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