Opinion
Case No. 3:12cv00344
02-10-2014
COY PHELPS, Plaintiff, v. RION MACCONNELL, et al., Defendants.
District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington
DECISION AND ENTRY
Plaintiff, an inmate at the Devens Federal Medical Center in Massachusetts, brings this case raising many claims including, in part, breach of contract and violations of the Racketeering Influence and Corrupt Organization Act. He lodges his claims against Defendant US Mint Green Ltd and others.
This matter is before the Court upon Plaintiff's Motion for Court to Issue Subpoena (Doc. #37), to which Defendants have not responded. Plaintiff asks the Court to issue a subpoena to the Better Business Bureau (BBB), a non-party in this case. He points out that a letter he received from the Better Business Bureau informed him that Defendant Mint Green has at least sixty-six complaints against it. The letter also explains that the BBB "only accepts a formal subpoena issued by a clerk of court or an officer of the court to release the documents." (Doc. #37, PageID at 418). Plaintiff argues that the subpoena is warranted because the BBB has records pertinent to "show a pattern and history of criminal racketeering enterprise and to show a history of cheating vulnerable people out of money." Id., PageID at 417.
Plaintiff directs the requested subpoena to John North, CEO and President of the Better Business Bureau, 15 West 4th St., Suite 300, Dayton, Ohio 45402.
Rules 34(c) and 45(a) of the Federal Rules of Civil Procedure provide that a party to civil litigation may subpoena a nonparty to produce documents. Rule 45(d)(1) also provides, "a party ... responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subjection to a subpoena."
Plaintiff's request for a subpoena to the BBB for the sixty-six complaints apparently lodged against Defendant US Mint Green seeks to impose significant copying and mailing costs upon the BBB. Plaintiff's Motion does not indicate the specific costs involved or that he has paid the costs to the BBB. Consequently, Plaintiff has not shown that he has taken reasonable steps to avoid imposing undue burden or expense upon the BBB, and he is not entitled to an Order mandating the Clerk of Court to issue a nonparty subpoena to the BBB. See Fed. R. Civ. P. 45(d)(1); see also Scofield v. Ball, No. 11cv378, 2013 WL 6061983 at *2 (S.D. Cal. Nov. 15, 2013) (McCurine, Jr., M.J.) ("The 'Federal Rules of Civil Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum.'") (quoting Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa.1991)).
In addition, Plaintiff has not asked Defendant US Mint Green to produce the BBB complaints. This is seen in the lack of such a request in his First Requests for Production of Documents. (Doc. #38, PageID at 447-53). Defendant US Mint Green is likely to have copies of the BBB complaints given that it is the subject of those complaints. Plaintiff must therefore seek production of those complaints from Defendant US Mint Green before obtaining a subpoena to the nonparty BBB. See Wright v. Young, 4:10-CV-474, 2012 WL 3024431 at *1 (N.D. Fla. July 24, 2012) (Jones, M.J.) ("the Court will consider granting ... a [pro se plaintiff's subpoena] request only if the documents sought from the non-party are not equally available to Plaintiff and are not obtainable from Defendant through a request for production of documents."); see also Hughes v. Friedman, No. CV-12-697, 2013 WL 93177 at *2 (D. Ariz. Jan. 8, 2013) (Anderson, M.J.) (same).
Accordingly, Plaintiff's Motion for Court to Issue Subpoena lacks merit.
IT IS THEREFORE ORDERED THAT:
Plaintiff's Motion for Court to Issue Subpoena (Doc. #37) is denied.
__________
Sharon L. Ovington
Chief United States Magistrate Judge