Hardy, Charlie v. Stone House Development et al

Filing 36

ORDER denying 34 Motion for Issuance of Subpoenas without prejudice. Signed by Magistrate Judge Stephen L. Crocker on 4/1/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CHARLIE L. HARDY,
Plaintiff,

ORDER

v.
12-cv-872-bbc
STONE HOUSE DEVELOPMENT
and KASSIE SUTTERLAND,
Defendants.

At 1:44 p.m. on Friday, March 28, 2014, Plaintiff Charlie Hardy has filed a letter dated
March 28, 2014, in which she asks the clerk of court to issue seven deposition subpoenas
pursuant to Fed. R. Civ. P. 45(a)(3), for depositions to be held on Tuesday, April 2, 2014. See
dkt. 34 and attachments). Plaintiff has not yet provided all of the necessary information, and
in any case, her timing is much, much too tight, so I will direct the clerk of court not to issue
the requested subpoenas at this time.
In her motion, plaintiff says that she has located a stenographer who has agreed to report
these depositions on a pro bono basis on April 2 (“that’s why it seems so down to the wire,” dkt.
34). Plaintiff, however, has not reported whether she has arranged to pay the required daily
witness fees and transportation costs of the seven people she wishes to depose, and she has not
indicated if she has arranged for service of the subpoenas, which must be made by a person who
is 18 years old and not a party to the lawsuit.
Rule 45(b)(1), Federal Rules of Civil Procedure, requires that plaintiff obtain service of
the subpoenas and tender to each witness the fees for one day's attendance and the mileage
expenses allowed by law. These fees cannot be waived by this court, McNeil v. Lowney, 831 F.2d
1368, 1373 (7th Cir. 1987), and this court has no money to pay for such expenses, even when
the litigant is proceeding pro se and in forma pauperis. Any potential witness who receives a

subpoena but does not receive the witness fee and transportation costs may move to quash the
subpoena for that failure, and the court would be bound to grant such a motion.
Finally, even if plaintiff had met these requirements, this court would not have issued
subpoenas requiring third-party witnesses to appear for depositions on less than 24 hours’
notice. Even if plaintiff could have served the subpoenas today (Tuesday, April 1, 2014), Rule
45(d)(1) requires that plaintiff not impose an undue burden or expense on a person subject to
a subpoena, and Rule 45(d)(3)(A)(1) requires this court to quash a subpoena that fails to provide
the witness with reasonable time to comply. As a general rule of thumb, this court deems seven
to 10 days to be the minimum amount of time to require compliance with a subpoena, counting
this time from when the witness actually is served with the subpoena or otherwise is adequately
informed of the time, date and location of the deposition. This is in addition to payment of
witness fees and transportation costs.
Accordingly, it is ORDERED that because plaintiff has not provided the necessary
information, her request for the issuance of subpoenas is DENIED WITHOUT PREJUDICE.

Entered this 1st day of April, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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