Opinion
No. CV 1:08-01267-JAT.
February 1, 2010
ORDER
On September 28, 2009, the Court ordered:
IT IS FURTHER ORDERED with respect to Defendant Sather,
(1) that based on the amended complaint (Doc. #30), the Clerk of the Court shall amend the docket to change the name of Defendant "Saihca" to Defendant "Sather."
(2) With this Order, the Clerk of the Court shall send Plaintiff another service packet to serve Defendant Sather, including the amended complaint (Doc. #30), this Order, the Order of May 8, 2009 (Doc. #9), a Notice of Submission of Documents form, an instruction sheet, and a copy of a summons and USM-285-form for Defendant Sather.
(3) Plaintiff should not attempt to personally serve Sather and must not request a waiver of service; once the Clerk has received the Notice of Submission of Documents and the required documents, the Court will direct the Marshals to attempt service by waiver or personal service. If Plaintiff fails to return a new service packet by October 19, 2009, Defendant Sather will be dismissed, without prejudice, for failure to prosecute and failure to timely serve under Federal Rules of Civil Procedure 41(b) and 4(m).
On January 29, 2010, the Marshals returned an unexecuted return of service for Defendant Sather. Doc. #48. The notes on the return of service state, "12/24/09 per facility not employed; 1/26/2010 per cdc locator 0." Doc. #48. Similar to Defendant Stark, the Court will provide Plaintiff with two subpoenas decus tecum in blank to serve on the appropriate person at Kern Valley State Prison to attempt to obtain a last know address for Defendant Sather. If such an address is obtained, Plaintiff can again attempt service through the Marshals.
Accordingly,
IT IS ORDERED:
(1) that the Clerk of the Court shall issue and send to Plaintiff two subpoenas in blank and two USM-285 forms for Plaintiff to complete with each subpoena. Plaintiff shall complete the USM-285 forms and subpoenas decus tecum requesting documents that would contain an address for Defendant Sather and return them to the Clerk of the Court. Plaintiff shall have untilFebruary 26, 2010 to return these completed subpoenas and forms to the Court. Upon receipt of the completed subpoenas and USM-285 forms, the Clerk of the Court shall forward the completed subpoenas and forms to the Marshals for service.
(2) that Plaintiff shall complete the subpoenas such that the documents requested are returned to the Court and not to the Plaintiff. Upon receipt of the documents, the Clerk of the Court shall file the documents containing Defendant Sather's addressunder seal. Upon receipt of the documents, the Clerk of the Court shall forward the address of Defendant Sather and a copy of this order and a copy of the amended complaint (Doc. #30) to the Marshals and the Marshals shall again attempt to serve the summons and amended complaint.
(3) that if Plaintiff does not accomplish service of Defendant Sather through this additional process, the Court will dismiss Defendant Stark without prejudice. Issued by the EASTER CALIFORNIA SUBPOENA IN A CIVIL CASE
If action is pending in district other than district of issuance, state district under case number.
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on _____________________________________ _______________________________________________________ DATE SIGNATURE OF SERVER _______________________________________________________ ADDRESS OF SERVER _______________________________________________________ Rule 45, Federal Rules of Civil Procedure, Parts C D:(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction which may include, but is not limited to, lost earnings and reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to comply production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance,
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena, or, if the party in who behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.