Draper v. United States Postal Service
Filing
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MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 05/25/2018. (ssm)
CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
CEDRICK DRAPER,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE,
Defendant.
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Civil Action No. 3:18CV00009
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge
The United States Postal Service (Postal Service) has moved to quash a subpoena that the
pro se plaintiff, Cedrick Draper, issued to David Ayers in his official capacity as a Postal Service
employee.
In response to that motion, Draper has filed a motion for writ of mandamus
compelling the Postal Service to produce the documents identified in the subpoena. For the
following reasons, the court will grant the motion to quash and deny the motion for writ of
mandamus.
Background
In January of2018, Draper filed this employment discrimination action against the Postal
Service in the General District Court for the City of Charlottesville. The Postal Service removed
the case to this court on February 12, 2018. By letter dated March 9, 2018, an Assistant United
States Attorney (AUSA) advised Draper that service had not been properly effected in
accordance with the Federal Rules of Civil Procedure. See 39 U.S.C. § 409(b) (requiring that the
Postal Service be served in the same manner in which one would serve the United States under
federal law). The AUSA recommended that Draper consult Federal Rule of Civil Procedure 4(i),
which sets forth the requirements for serving the United States and its agencies, corporations,
officers, or employees.
On May 10, 2018, the court entered an order directing Draper to serve the Postal Service
and provide proof of service to the court by May 28, 2018. On May 16, 2018, after receiving a
response from the plaintiff, the court issued another notice advising the plaintiff that he had not
provided proof of service in accordance with Rule 4(i), and that the case would be dismissed
without prejudice if he did not comply with the court's previous order.
On May 13, 2018, Draper signed and docketed a subpoena directing David Ayers, a
Postal Service employee, to appear for deposition on June 1, 2018 and to produce certain
documents. The Postal Service moved to quash the subpoena on May 18, 2018. That same day,
Draper filed a response to the motion, along with a motion for writ of mandamus directing the
Postal Service to produce the documents identified in the subpoena.
Discussion
I.
Motion to Quash
The Postal Service asserts that the subpoena issued by Draper should be quashed for
several reasons. For the following reasons, the court agrees.
First, the subpoena is not valid because Draper did not.comply with the requirements of
Rule 45 of the Federal Rules of Civil Procedure. Rule 45 requires that a subpoena be issued and
signed by the "clerk" or an "attorney ... authorized to practice in the issuing court." Fed. R.
Civ. P. 45(a)(3). The subpoena in question was signed only by the pro se plaintiff. Because
Draper is not an attorney authorized to practice in the Western District ofVirginia, the subpoena
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is invalid. 1 See United States v. Meredith, No. 99-3079, 1999 U.S. App. LEXIS 12046, at *4
(1Oth Cir. June 11, 1999) ("A pro se litigant who is not a licensed attorney with the appropriate
court has no power to issue subpoenas. Accordingly, the subpoenas completed by Meredith were
invalid.").
Second, Draper's efforts to depose a Postal Service employee and compel the production
of documents are premature. Although Rule 45 is silent as to when subpoenas may be issued,
subpoenas are discovery devices and, as such, are generally subject to the provisions of Federal
Rule of Civil Procedure 26(d) governing the start of discovery. Knott v. Nationstar Mortg., LLC,
No. 5:15-cv-00043, 2017 U.S. Dist. LEXIS 73580, at *3 (W.D.N.C. May 15, 2017); see also
Mort. Info. Servs., Inc. v. Kitchens, 210 F.R.D. 562, 566 (W.D.N.C. 2002) (adopting the rule
followed by the majority of jurisdictions and holding that "a Rule 45 subpoena does in fact
constitute discovery"); Robinson v. Equifax, No. 4:10-cv00084, 2011 U.S. Dist. LEXIS 7656, at
*13 (E.D.N.C. Jan. 24, 2011) (holding that a subpoena was procedurally premature under Rule
26(d)). Rule 26(d) states that "[a] party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except in· a proceeding exempted from initial
disclosure under Rule 26(a)(l)(B), or when authorized by these rules, by stipulation, or by court
order."
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Fed. R. Civ. P. 26(d)(l). In this case, proper proof of service has not been filed, the
Postal Service has not responded to the complaint, and there has been no Rule 26(f) conference.
Accordingly, discovery is premature.
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The court also notes that Draper is not authorized to serve any subpoena issued in this action, since
he is a named party. See Fed. R. Civ. P. 45(b)(l) ("Any person who is at least 18 years old and not a party
may serve a subpoena.") (emphasis added).
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Draper does not contend that any exceptions to the time limitation apply here.
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Finally, to the extent Draper seeks to obtain copies of policies or other documents
maintained by the Postal Service, a subpoena is generally not the proper vehicle for obtaining
discovery from the opposing side.
See Fed. R. Civ. P. 34(c) (authorizing parties to issue
document subpoenas to nonparties). Instead, Rule 34 of the Federal Rules of Civil Procedure
provides a separate mechanism by which a party may serve a request for production of
documents on another party. See Fed. R. Civ. P. 34(a)-(b); see also Layman v. Junior Players
Golf Acad., Inc., 314 F.R.D. 379, 385 (D.S.C. 2016) ("Although Rule 45 is not limited by its
terms to nonparties, it should not be used to obtain pretrial production of documents or things, or
inspection of premises, from a party in circumvention of discovery rules or orders. Discovery
from a party, as distinct from a nonparty, is governed by Rule 34, not Rule 45.") (citation and
internal quotation marks omitted). As indicated above, the time for such discovery has not yet
arrived. See Fed. R. Civ. P. 26(d) (governing the timing and sequence of discovery).
For all of these reasons, the court will grant the motion to quash.
II.
Motion for Writ of Mandamus
In response to the motion to quash, Draper filed a motion for writ of mandamus directing
the Postal Service to provide the requested documents. It is well-settled that mandamus is a
drastic remedy, which should only be used in extraordinary circumstances. See Kerr v. United
States Dist. Court, 426 U.S. 394, 402 (1976). The United States Court of Appeals for the Fourth
Circuit has held that the federal mandamus statute, 28 U.S.C. § 1361, "may be invoked only
where three elements co-exist: (1) the petitioner has shown a clear right to the relief sought; (2)
the respondent has a clear duty to do the particular act requested by the petitioner; and (3) no
other adequate remedy is available." First Fed. Sav. & Loan Ass'n v. Baker, 860 F.2d 135, 138
(4th Cir. 1988). Because none of these elements are present in the instant case, and Draper has
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not otherwise shown the existence of an extraordinary circumstance, the court will deny his
motion for writ of mandamus.
Conclusion
For the
rea~ons
stated, the court will grant the Postal Service's motion to quash and deny
Draper's motion for writ of mandamus.
The Clerk is directed to send copies of this memorandum opinion and the accompanying
order to the plaintiff and all counsel of record.
DATED: This _ _ day ofMay, 2018.
Senior United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
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CEDRICK DRAPER,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE,
Defendant.
Civil Action No. 3:18CV00009
ORDER
By: Hon. Glen E. Conrad
Senior United States District Judge
For the reasons stated in the accompanying memorandum opinion, it is hereby
ORDERED
as follows:
1.
The motion to quash filed by the United States Postal Service (Docket No. 22) is
GRANTED; and
2.
The plaintiffs motion for writ of mandamus (Docket No. 23) is DENIED.
The Clerk is directed to send a copy of this order and the accompanying memorandum
opinion to the plaintiff and all counsel of record.
DATED: This _ _ day ofMay, 2018.
Senior United States District Judge
not otherwise shown the exiStence of an extraordinary circumstance, the court will deny his
motion for writ of mandamus.
Conclusion
For the reasons stated; the court will grant the Postal Service's motion to quash and deny
Draper's motion for writ of mandamus.· ·•
The Clerk is directed to send copies of this memorandum. opinion· arid the accompanying
order to the plaintiff and all counsel of record.
DATED: This
£!."'64 day ofMay, 2018.
Senior United States District Judge
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