United States District Court, E.D. Missouri, Southeastern Division
HERBERT W. MORRISON, JR., Plaintiff,
ANDREW HALE Defendant.
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE .
matter is before the Court on Plaintiff s pro se
letter to the Clerk of Court, in which he requests two blank
subpoenas “for the production of documents,
information, or objects.” For the following reasons,
the Court will direct the Clerk to send Plaintiff two blank
subpoena forms, which Plaintiff shall complete in accordance
with the directions in this Order.
of documents from a nonparty can be compelled only by a
subpoena duces tecum issued under Rule 45 of the Federal
Rules of Civil Procedure. Fisher v. Marubeni Cotton
Corp., 526 F.2d 1338, 1341 (8th Cir. 1975) (citations
omitted). Thus, if Plaintiff seeks to obtain documents from
nonparties, he must comply with the provisions of Rule 45.
Clerk of the Court will be directed to send Plaintiff blank
subpoena forms. Plaintiff may fill out the subpoena forms and
return them to the Court, along with a Memorandum for Clerk
requesting service on nonparties by the U.S.
Marshal. Plaintiff should not sign the
subpoenas, as they will be signed by the Clerk after they are
returned to and reviewed by the Court.
Memorandum for Clerk must include the following information
for each subpoena: (1) the name of the person or entity
Plaintiff seeks to serve; (2) the specific documents
Plaintiff seeks; (3) how the specified documents are relevant
to Plaintiffs case; (4) why Plaintiff believes the person or
entity to be subpoenaed has possession of the documents; and
(5) how Plaintiff will provide the necessary costs related to
document productions. The subpoena forms submitted by
Plaintiff should be typewritten, if possible, or otherwise
must be legible or they will not be considered.
Court retains the discretion to refuse to issue Rule 45
subpoenas to nonparties if Plaintiff does not provide the
required information in the Memorandum for Clerk, or if the
Court believes the requests are frivolous or otherwise
improper. The Court 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 U.S. Marshals Service, and
to prevent harassment and undue expense of other parties and
nonparties. 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 Stockdale v.
Stockdale, 2009 WL 4030758 at *1 (E.D. Mo. Nov. 18,
2009); 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));
Jackson v. Brinker, 1992 WL 404537, at *7 (S.D. Ind.
Dec. 21, 1992).
Plaintiff should be mindful of the fact that although
Plaintiff 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 Plaintiff 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 Plaintiffs advancing the copying
costs for those documents. Accordingly, when reviewing
subpoenas directed to nonparties, a court should also examine
issues related to the expected compliance costs in light of
Rule 45's provision that nonparties 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 a subpoena duces tecum .
. . 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 subpoenae.”).
is cautioned that before he attempts to serve a Rule 45
subpoena, he must serve Defendant with a notice that the
subpoena will be issued. See Rule 45(a)(4). 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. 2015).
Adequate notice requires Plaintiff 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.
IT IS HEREBY ORDERED that the Clerk of the
Court shall send Plaintiff two blank subpoena forms, which
Plaintiff may fill out as required by this Memorandum and
Order and return to the Court with a Memorandum for Clerk
requesting that the subpoena be served by the U.S. Marshal.
IS FURTHER ORDERED that if Plaintiff requests
additional blank subpoena forms in the future, each such
request must be accompanied by a Memorandum for Clerk that
includes the following information for each requested
subpoena: (1) the name of the person or entity Plaintiff
seeks to serve; (2) the specific documents Plaintiff seeks;
(3) how the specified documents are relevant to
Plaintiff's case; (4) why Plaintiff believes the person
or entity to be subpoenaed has possession of the documents;
and (5) how Plaintiff will provide the necessary costs
related to document productions.
 The in forma pauperis
(“IFP”) statute provides that officers of the
court will issue and serve all process in IFP actions.
See U.S.C. § 1915(d). This requirement applies
not only to service of original process, but also to service
of a subpoena on behalf of an IFP party. See 9 James