Amisi v. Melick et al

Filing 22

ORDER denying 13 and 14 Motions for 911 Call Information. Signed by US Magistrate Judge Veronica L. Duffy on 10/9/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
HOLINESS AMISI,

4:15-CV-04083-LLP
Plaintiff,
ORDER DENYING UNOPPOSED
MOTIONS FOR 911 CALL
INFORMATION

vs.
TOM MELICK, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; SUTRAN, INC., A
SUBSIDIARY OF FIRST TRANSIT OF
AMERICA, A DELAWARE
CORPORATION; FIRST TRANSIT OF
AMERICA, THE CITY OF SIOUX
FALLS, SOUTH DAKOTA, PLANNING
DEPARTMENT, AN AGENCY OF THE
CITY OF SIOUX FALLS, SOUTH
DAKOTA;

DOCKET NOS. 13 & 14

Defendants.

This matter is pending before this court on plaintiff Holiness Amisi’s
complaint for damages pursuant to 42 U.S.C. § 1983. See Docket No. 1.
Currently pending is plaintiff’s motion seeking an order from the court
requiring Metro Communications 911 to produce to plaintiff recordings and
transcripts of 911 calls from January 15, 2014. See Docket No. 13. Also
pending is plaintiff’s motion seeking an order from the court requiring Metro
Communications 911 to produce to plaintiff records of calls that came into
Metro in the Sioux Area Metro transit location of 120 E. 11th Street from

January 2010 to the present. See Docket No. 14. Both of these motions are
unopposed by defendants. See Docket Nos. 13 & 14 (in addition to plaintiff’s
representation that defendants do not oppose these motions, defendants have
not filed responses in opposition to these motions). The district court, the
Honorable Lawrence L. Piersol, referred these two motions to this magistrate
judge for determination. See Docket No. 21.
Though defendants do not oppose the plaintiff’s motions, the motions
cannot be granted. Plaintiff does not explain who Metro Communications 911
is. The court has no independent knowledge of what kind of an organization
Metro is. Metro Communications 911 is not a named party to this lawsuit,
being listed as neither a plaintiff nor a defendant.
There are two basic vehicles for obtaining documents in discovery which
the Federal Rules of Civil Procedure describe. If the documents are in the
possession or control of a “party” to the lawsuit, one serves that party with a
request for the production of documents. See FED. R. CIV. P. 34. If Metro is an
arm of defendant the City of Sioux Falls, then documents in Metro’s possession
are probably within the city’s “control.”

See 8A Charles A. Wright, Arthur R.

Miller, & Richard L. Marcus, Fed. Practice & Procedure, '2210, at 397 (2d ed.
1994); American Soc. for the Prevention of Cruelty to Animals v. Ringling Bros.
& Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006) (citing Poole ex
rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 501 (D. Md. 2000); and Poppino v.
Jones Store Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940)).

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Plaintiff’s motions do not recite that plaintiff ever served the city of Sioux
Falls or any other of the named defendants in this action with a Rule 34
request for the 911 documents plaintiff seeks. Even if plaintiff had served a
defendant with a Rule 34 discovery request, a motion to compel compliance
with that request would be premature prior to a good faith effort on the part of
the moving party to try to resolve the discovery dispute. See FED. R. CIV. P. 37.
Plaintiff’s motion contains no certification as to whether any good faith efforts
have been made to resolve a discovery dispute concerning these 911
documents. Accordingly, the current motion is not proper as an effort to
enforce a Rule 34 request.
Alternatively, if Metro Communications 911 is an agency which exists
independent of any of the named defendants and is therefore a “nonparty,” the
Federal Rules of Civil Procedure direct that plaintiff serve Metro with a
subpoena duces tecum. See FED. R. CIV. P. 45. Serving a nonparty with a
subpoena under Rule 45 entails certain safeguards to protect the nonparty
from unreasonable requests and efforts. Id. If Metro does not agree with the
subpoena, it can move to quash the subpoena. Id. Plaintiff does not recite in
either of the two pending motions that plaintiff has served Metro with a
subpoena for the documents requested.
The two pending motions cannot be granted. If Metro is within the
control of the City of Sioux Falls, the motions are inappropriate because they
were not preceded by serving the city with a request for the production of
documents and a good faith effort to resolve any disputes over the discovery.
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See FED. R. CIV. P. 34 & 37. If Metro is an independent nonparty, this court
has no personal jurisdiction over Metro and no authority to simply order Metro
to produce documents. And without having served Metro with a subpoena
duces tecum, the court also has no authority to address documents in Metro’s
possession. For these reasons, the court cannot grant plaintiff’s motions even
though they are unopposed by defendants. Accordingly, it is hereby
ORDERED that plaintiff’s motions for obtaining discovery from Metro
Communications 911 [Docket Nos. 13 & 14] are denied without prejudice to
plaintiff’s ability to refile such motions by showing appropriate circumstances
justifying the relief requested.
DATED this 9th day of October, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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