Opinion
CV-17-00173-TUC-RM
12-29-2021
Devin Andrich, Plaintiff, v. Kevin Dusek, et al., Defendants.
ORDER
HONORABLE ROSEMARY MARCPILEZ UNITED STATES DISTRICT JUDGE
On December 8, 2021, the Court issued an Order addressing numerous Motions for the issuance of subpoenas for trial witnesses. (Doc. 360.) In the Order, the Court stated that it was inclined to grant Plaintiff's Motion for Issuance of Trial Subpoena for Shandan Nettles but, because Plaintiff had not provided an address at which the subpoena could be served, the Court instead took the Motion under advisement pending Plaintiff's filing of a motion addressing whether Defendant should be required to disclose Nettles's last-known address. (Id. at 3-5, 10.) On December 22, 2021, Plaintiff filed a Motion for Disclosure Sanctions. (Doc. 363.) In the Motion, Plaintiff asks the Court to order Defendant to disclose Nettles's last-known address and to impose sanctions against Defendant. (Id. at 1-4, 7-11.) Plaintiff also complains about delay in the Clerk of Court's delivery to him of trial subpoenas for Dusek, Ryan, and Hall, as well as the Clerk's refusal to provide Plaintiff with written confirmation that it timely delivered to the United States Marshals Service trial subpoenas for Cox, Martinez, Cook, and Hoyt. (Id. at 4-6.)
On December 29, 2021, Defendant filed a Response (Doc. 367) to Plaintiff's Motion for Disclosure Sanctions, as well as a Motion for Leave to File Nettles's Last-Known Address Under Seal (Doc. 368). In his Response, Defendant argues that Plaintiff failed to adequately engage in personal consultation prior to filing his Motion for Disclosure Sanctions, that the Motion is moot because Defendant has voluntarily moved for leave to file Nettles's last-known address under seal, and that the Motion is meritless. (Doc. 367.) Defendant asks the Court to order Plaintiff to pay Defendant's costs of preparing the Response as a sanction against Plaintiff for filing a Motion that could easily have been avoided. (Id. at 3, 5.)
The Court will grant Defendant's Motion for Leave to File Nettles's Last-Known Address Under Seal and grant Plaintiff's Motion for Issuance of Trial Subpoena for Shandan Nettles. The Court will deny as moot Plaintiff's Motion for Disclosure Sanctions to the extent the Motion requests an Order directing Defendant to file Nettles's last-known address. To address the concerns raised in Plaintiff's Motion for Disclosure Sanctions, the Court notes that the Clerk's Office recorded on December 8, 2021 that trial subpoenas for Cox, Martinez, Cook, and Hoyt were forwarded to the United States Marshals Service.
The Court declines to impose sanctions against either party. Plaintiff should have engaged in further personal consultation prior to filing his Motion for Disclosure Sanctions, and given the upcoming firm trial date, he should not have waited two weeks after the Court's December 8, 2021 Order to file the Motion. However, Defendant could have voluntarily filed Nettles's last-known address earlier, as the need for the address has been clear at least since December 8, 2021.
IT IS ORDERED that Defendant's Motion to File Nettles's Last-Known Address Under Seal (Doc. 368) is granted. The Clerk of Court is directed to file Shandan Nettles's last-known address (lodged at Doc. 369) under seal . . . . . . . . . . . . .
IT IS FURTHER ORDERED that Plaintiffs Motion for Issuance of Trial Subpoena for Shandan Nettles (Doc. 334) is granted. The Clerk of Court is directed to issue the subpoena contained in Exhibit A-1 of Doc. 334-1 for service by the United States Marshals Service. The Clerk of Court is further directed to complete the subpoena with the address for Shandan Nettles lodged at Doc. 369. The Clerk of Court shall also provide the United States Marshals Service with a copy of this Order and a copy of the Court's December 8, 2021 Order (Doc. 360).
IT IS FURTHER ORDERED that the United States Marshals Service shall expedite service of the trial subpoena for Nettles, as well as the trial subpoenas for Cox, Martinez, Cook, and Hoyt .
IT IS FURTHER ORDERED that Plaintiffs Motion for Disclosure Sanctions (Doc. 363) is denied as moot to the extent the Motion requests an Order directing Defendant to file Nettles's last-known address. Both parties' requests for sanctions are denied.