United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court upon review of its record.
Plaintiff proceeding pro se has requested that the
Court serve subpoenas on six witnesses to appear at a
deposition scheduled at the law firm of Defendants'
counsel. The Court granted Plaintiffs motion in a Docket Text
Order dated July 26, 2017 (ECF No. 56). However, upon further
consideration, the Court will vacate its previous Order and
order Plaintiff to comply with Rule 45 of the Federal Rules
of Civil Procedure.
Court notes that Plaintiffs motion contains the names and
addresses of six individuals, along with a date and location
for the depositions to take place. Even though Plaintiff is
pro se, he is still required to comply with the
rules of this Court, including the issuance of subpoenas to
testify at a deposition in a civil action. Such subpoenas are
found on the Court's website. However, for the
convenience of the Plaintiff, the Court will order the Clerk
of the Court to include six blank subpoena forms with a copy
of this Memorandum and Order.
also requires to Plaintiff to specify a method for recording
the testimony, which Plaintiff has not provided. Fed.R.Civ.P.
45(a)(1)(B). Further, Plaintiff is required to pay the
witness fees for one day's attendance, along with
mileage. Fed.R.Civ.P. 45(b)(1). Finally, to the extent that
Plaintiff intends to request service by the United States
Marshals Service, "[t]he Court has the
'discretionary power to refuse to subpoena witnesses and
to prevent abuse of its process in both civil and criminal
proceedings.'" Stockdale v. Stockdale, No.
4:08-CV-1773 CAS, 2009 WL 4030758, at *1 (E.D. Mo. Nov. 18,
2009) (quoting 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. Id. (citation
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 to proving the
indigent plaintiffs case. See Jackson v. Brinker,
No. IP 91-471-C, 1992 WL 404537, at *6 (S.D. Ind. Dec. 21,
1992); see also Nesbitt v. Riley, No.
0:14-2788-RMG-PJG, 2015 WL 1517505, at *3 (D.S.C. Apr. 1,
2015) ("The court's authorization of a subpoena
requested by an in forma pauperis plaintiff is
subject to limitations, including the relevance of the
information sought as well as the burden and expense to a
person subject to the subpoena."). However, Plaintiffs
in forma pauperis status "does not mean that
the plaintiffs discovery expenses are underwritten or
waived." Nesbit, 2015 WL 1517505, at *3.
"To the extent Plaintiff wishes to take the depositions
of non-defendants, he must still issue subpoenas under Fed.
R. Civ. P., notwithstanding Defendants' agreement to
allow non-party depositions. Sykes v. Carroll, No.
CIV.A. 06-72-JJF, 2009 WL 1147902, at *1 (D. Del. Apr. 27,
2009). Plaintiff may not issue subpoenas without paying the
required fees. Id.; see also Fed. R. Civ. P.
45(b)(1) ("Serving a subpoena requires delivering a copy
to the named person and, if the subpoena requires that
person's attendance, tendering the fees for 1 day's
attendance and the mileage allowed by law."). Further,
depositions require a method of recording which would involve
expenses the Court is not authorized to pay. Sykes,
2009 WL 1147902, at *1.
in the record provides the Court with a basis to conclude
that Plaintiff has the ability to provide for the costs of
his requested depositions. The Clerk of the Court will be
directed to send Plaintiff six blank subpoena forms, which
Plaintiff shall complete and return to this Court for
signature of the Clerk. Plaintiff is then responsible for
serving the non-party deponents in compliance with
Fed.R.Civ.P. 45(b)(1). Should the Plaintiff request service
by the U.S. Marshal, the Court cautions if a court finds that
an indigent party's requests for issuance and service of
a subpoena 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 subpoena." Jackson, 1992
WL 404537, at *6. Any request for service by the U.S. Marshal
must include a memorandum demonstrating the relevance and
materiality of the information requested and the necessity of
the particular testimony to prove Plaintiffs case, as well as
how he will provide the necessary costs related to the
IT IS HEREBY ORDERED that the Docket Text
Order dated July 26, 2017 [ECF No. 56] is
VACATED and Plaintiffs Amended Motion to
Serve Subpoenas for Deponents to Appear at a Deposition is
DENIED for failure to comply with
IS FURTHER ORDERED that the Clerk of the Court shall
issue to Plaintiff six blank Subpoena to Testify at a
Deposition in a Civil Action forms.
IS FINALLY ORDERED that if Plaintiff submits a
request for service by the United States Marshals Service,
Plaintiff must also submit a memorandum demonstrating the
relevance and materiality of the information requested, the
necessity of the particular testimony to prove Plaintiffs
case for each proposed deponent, and how he will ...