Opinion
C22-1844JLR
07-07-2023
ERIC STEPHEN FREEZE, Plaintiff, v. DON MCDERMOTT, et al., Defendants.
ORDER
JAMES L. ROBART, UNITED STATES DISTRICT JUDGE
Before the court is pro se Plaintiff Eric Stephen Freeze's motion for contempt and an order to show cause. (Mot. (Dkt. # 49).) The court has considered Mr. Freeze's submission, the balance of the record, and the applicable law.Being fully advised, the court DENIES Mr. Freeze's motion.
Mr. Freeze's motion is noted for July 21, 2023. (See Dkt.) Nevertheless, the court exercises its discretion to decide the motion without waiting for Defendant Jose T. Acuna's response or Mr. Freeze's reply. See Fed.R.Civ.P. 1 (instructing the court “to secure the just, speedy, and inexpensive determination of every action and proceeding”).
In the instant motion, Mr. Freeze claims that he had a federal subpoena served on Mr. Acuna on April 19, 2023, which sought “the production of an answer or motion.” (Mot. at 1-2.) He asserts that Mr. Acuna failed to produce an answer or motion by the May 10, 2023 deadline set forth in the subpoena. (Id. at 2.) Mr. Freeze asks the court to hold Mr. Acuna in contempt for his failure to timely comply with the subpoena. (Id. at 2-3.)
The court declines to do so. First, Mr. Freeze did not provide the court with a copy of the alleged federal subpoena, nor does the docket in this case indicate that Mr. Freeze requested the issuance of a subpoena. (See generally id.) As such, the court is unable to verify that the alleged federal subpoena was actually issued by the Clerk of this court. Second, Federal Rule of Civil Procedure 45 authorizes subpoenas for the production of documentary evidence or testimony. See generally Fed.R.Civ.P. 45. Such subpoenas are generally served on non-parties as a means of gaining discovery from such parties. See, e.g., Golden v. Am. Pro Energy, No. EDCV16891MWFKKX, 2018 WL 1426341, at *2 (C.D. Cal. Feb. 15, 2018) (“Federal Rule of Civil Procedure 45 . . . provides the exclusive method of discovery on non-parties.”). Federal Rule of Civil Procedure 45 does not, however, authorize subpoenas that purport to require the receiving party to answer a complaint or file a motion. See generally Fed.R.Civ.P. 45. Accordingly, Mr. Freeze's alleged federal subpoena “for the production of an answer or // motion” is improper under Rule 45. (Mot. at 2.) Finally, the court notes that Mr. Acuna has answered Mr. Freeze's complaint. (See generally Ans. (Dkt. # 46).)
The court reminds Mr. Freeze that even though he is proceeding pro se, he is required to comply with the Federal Rules of Civil Procedure and this District's Local Civil Rules. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”), overruled on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012).
For the foregoing reasons, the court will not hold Mr. Acuna in contempt for allegedly failing to comply with the “federal subpoena” he received on April 19, 2023. The court therefore DENIES Mr. Freeze's motion for contempt and an order to show cause (Dkt. # 49). The court further DIRECTS the Clerk to enter an order regarding initial disclosures and joint status report in this matter.