United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on pro se plaintiff Darnell Wesly
Moon's Second Motion for Appointment of Counsel (ECF No.
40) and Motion to Add Additional Parties (ECF No. 41). The
Court will construe Moon's Motion for Appointment of
Counsel as a motion for service of subpoenas by the United
States Marshals Service, in addition to a request for
Motion for Appointment of Counsel
Plaintiffs Second Motion for Appointment of Counsel, Moon
claims that "[w]ithout the assistance of counsel, there
is no way ... that the plaintiff can conduct depositions on
the defendants." (ECF No. 40). Moon's statement,
however, is incorrect. Fed.R.Civ.P. 26(b)(1) provides,
""Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit."
The Court, however, has the "discretionary power to
refuse to subpoena witnesses and to prevent abuse of its
process in both civil and criminal proceedings."
Manning v. Lockhart, 623 F.2d 536, 539 (8th Cir.
1980) (per curiam). This power should be exercised to protect
the resources of the Court and the Marshals Service, and to
prevent harassment and undue expense of other parties and
non-parties. See, e.g., Lloyd v. McKendree,
749 F.2d 705, 707 (11th Cir. 1985).
exercising inherent supervisory power over in forma pauperis
subpoenas generally consider factors such as the relevance
and materiality of the information requested and the
necessity of the particular testimony or documents to proving
the indigent's case. See Jackson v. Brinker,
1992 WL 404537, at *6 (S.D. Ind. Dec. 21, 1992); Tuvalu
v. Woodford, 2006 WL 3201096, at *5 (E.D. Cal. Nov. 2,
2006) ("[A] party's ability to use a subpoena duces
tecum is circumscribed by the relevance standards of Federal
Rule of Civil Procedure 26(b)(1)[.]" When reviewing
subpoenas duces tecum directed to non-parties, a court should
also examine issues related to the expected compliance costs
in light of Rule 45(c)(2)(B)'s provision that non-parties
be protected against significant expense. Jackson,
1992 WL 404537, at *5.
If a court finds that an indigent party's requests for
issuance and service of subpoenae duces tecum
directed to a non-party is frivolous, requests immaterial or
unnecessary information, is unduly burdensome, would be
reasonably certain to result in the indigent's
responsibility for significant compliance costs for which he
cannot provide, or is otherwise unreasonable or abusive of
the court's process, the court may relieve the Marshals
Service of its duty under § 1915(c) to serve the
Id. at *7.
may request subpoenas from the Court. The Court, however will
require Moon to demonstrate the relevance or materiality to
the present case of the subpoenas and/or documents sought.
although Moon has been granted in forma pauperis status under
28 U.S.C. § 1915, nothing in the statute authorizes or
permits the Court to waive the expense requirements of Rule
45. See generally McNeil v. Lowney, 831 F.2d 1368,
1373 (7th Cir. 1987), cert, denied, 485 U.S. 965
(1988); Badman v. Stark, 139 F.R.D. 601, 605-06
(M.D. Pa. 1991); Leadbetter v. City of Fort Wayne,
2007 WL 2323109, at *2 n.2 (N.D. Ind. Aug. 10, 2007) (citing
cases). If Moon were required to file a motion to compel, or
if the subpoenaed parties objected to the subpoenas, the
Court could condition an order requiring document production
upon Moon's advancing the copying costs for those
documents. Nothing in the record provides the Court with a
basis to conclude that Moon has the ability to provide for
the costs of his requested discovery.
Clerk of the Court will be directed to send Moon ten blank
subpoena forms. Moon may fill out the forms and return them
to this Court for service as appropriate. Moon should not
sign the subpoenas, which will be signed by the Clerk after
they are returned to the Court. If Moon chooses to submit any
subpoenas duces tecum to this Court, he must also
submit a memorandum which explains as to each subpoena (1)
why the documents he seeks are relevant to his case, (2) why
he believes the entity or individual subpoenaed has
possession of relevant documents, and (3) how he will provide
the necessary costs, if any, related to document productions.
cautioned that before he serves a Rule 45 subpoena duces
tecum, he must serve the defendant with a notice that
the subpoena will be issued. See Rule 45(b)(1).
Failure to comply with the prior notice requirement could
result in the imposition of sanctions, including the
exclusion of any evidence produced or the imposition of
monetary sanctions. See 9 James Wm. Moore, et al.,
Moore's Federal Practice, § 45.21 [a]
(3d ed. 2009). Adequate notice requires Moon to specifically
identify the entities or persons he seeks to subpoena, and
the documents he is requesting. Otherwise, the defendant is
not given a reasonable opportunity to object to the
production. See id.
Motion to Add Additional Parties
Motion to Add Additional Parties, Moon asks the Court to stay
the deadline for joinder of additional parties until he has
time to identify some unknown individuals as defendants. (ECF
No. 41). This Court has already granted Moon leave to file an
Amended Complaint and extended the deadlines in this case.
The Court will not permit an open-ended deadline for Moon to
potentially identify more defendants. Moon may be
permitted to amend the complaint upon a motion showing good
cause. See Fed. R. Civ. P. 16(b)(4) ("A
schedule may be modified only for good cause and with the
judge's consent."). Moon's motion is denied.
IT IS HEREBY ORDERED that Second Motion for Appointment of
Counsel (ECF No. 40) is DENIED, in part, and GRANTED, in
part. The Court will not appoint counsel for Plaintiff IT IS
FURTHER ORDERED that the Clerk of the Court shall send ...