Opinion
CIVIL ACTION NO. 11-633-JJB-RLB
11-12-2013
FOREVER GREEN ATHLETIC FIELDS, INC., et al v. BABCOCK LAW FIRM, L.L.C., et al
ORDER
Before the Court is Defendants' Motion to Compel (R. Doc. 46), filed on October 9, 2013. In their Motion, Defendants ask the Court to compel a non-party, The Kullman Firm, to produce documents previously requested by Defendants through a Rule 45 subpoena. (R. Doc. 46-2). Defendants have advised the Court that The Kullman Firm has served written objections to the subpoena. Therefore, Defendants' now seek a Court order compelling production.
Defendants' Motion also asks the Court to compel Plaintiffs to produce documents responsive to Defendants' Request for Production of Documents served on Plaintiffs. However, that portion of Defendants Motion to Compel is not relevant to this Order.
Rule 45(c)(2)(B)(i) of the Federal Rules of Civil Procedure states: "At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection." (emphasis added). In other words, a court may not order compliance with a subpoena under Rule 45, unless the subpoenaed party and the parties to the action have first been provided notice of the motion to compel. See Beare v. Millington, No. 07-3391, 2010 WL 234771, at *5 (E.D.N.Y. Jan. 13, 2010) ("there is no indication that plaintiffs serve the motion to compel upon [the non-parties]. Thus, the motion to compel is denied without prejudice to renewal."); Davis v. Brown, No. 12-1906, 2013 WL 1933850, at *2 (E.D.N.Y. May 9, 2013) (denying pro se plaintiffs Rule 45 motion to compel against non-party because "there is no proof that the [non-party] was ever served with this motion."); Patrick Collins, Inc. v. Joan Does 34-51, No. 11-2143, 2012 WL 993379, at *1-2 (S.D. Ca. March 23, 2012) (noting that Rule 45(c)(2)(B)(i) requires notice to the responsive party of the motion to compel); Advisory Committee Note to Rule 45 ("Subdivision (c)(2)(B) . . . is designed to assure that a nonparty servee be notified; it does not dispense with service of the notice of motion on the parties as well").
Here, the record does not indicate that the non-party, The Kullman Firm, has been served with a copy of Defendants' Motion to Compel, as required by Rule 45(c)(2)(B)(i). Therefore,
IT IS ORDERED that Defendants shall serve The Kullman Firm with a copy of the Motion to Compel no later than November 19, 2013. Defendants shall file proof of service with the Court no later than November 22, 2013.
Signed in Baton Rouge, Louisiana, on November 12, 2013.
____________________________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE