Opinion
CIVIL ACTION NO. 12-420-BAJ-RLB
07-17-2014
SCOTT BUTLER v. STATE OF LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al
ORDER
Before the Court is Plaintiff's Motion to Compel (R. Doc. 51), filed on June 30, 2014. In his Motion, Plaintiff asks the Court to compel a non-party, Matrix, Inc., to produce documents previously requested by Plaintiff through Rule 45 subpoenas. (R. Docs. 51-9, 51-10). Plaintiff has advised the Court that Matrix has served written objections (R. Doc. 51-12) to his second subpoena (R. Doc. 51-10). Therefore, Plaintiff now seeks a Court order compelling production.
Rule 45(d)(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) ("[T]here is no indication that plaintiff's served 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 plaintiff's 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. Cal. March 23, 2012) (noting that Rule 45(d)(2)(B)(i) requires notice to the responsive party of the motion to compel); David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197, 230 (1992) (Rule 45(d)(2)(B)(i) "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, which Rule 5(a) . . . requires for papers generally.").
Here, the record does not indicate that the non-party, Matrix, Inc., has been served with a copy of Plaintiff's Motion to Compel, as required by Rule 45(d)(2)(B)(i). Therefore,
IT IS ORDERED that Plaintiff shall serve Matrix, Inc. with a copy of the Motion to Compel no later than July 23, 2014. Plaintiff shall file proof of service with the Court no later than July 25, 2014.
Signed in Baton Rouge, Louisiana, on July 17, 2014.
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RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE