IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 29, 2009
JUAN RADILLO, PLAINTIFF,
L. CHAMALBIDE, DEFENDANT.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER RE MOTIONS (DOCS 80, 81)
Plaintiff has filed a motion for the attendance of incarcerated and unincarcerated witnesses at his upcoming trial. On November 14, 2008, a scheduling order was entered, setting forth the requirements for the attendance of incarcerated and unincarcerated witnesses. Plaintiff seeks the issuance of a subpoena pursuant to Federal Rule of Civil Procedure 45.
Regarding motions for the attendance of incarcerated witnesses, Plaintiff was advised that any such motion must be filed on or before December 19, 2008. Plaintiff filed his motion for the attendance of incarcerated witnesses on February 11, 2009. Further, Plaintiff was advised that such a motion must be accompanied by declarations showing that each witness is willing to testify and that each witness has actual knowledge of relevant facts. Plaintiff's motion does not include any declarations.
As to Plaintiff's motion for the attendance of unincarcerated witnesses, Plaintiff was advised that if any such witness agrees to testify voluntarily, no action need be sought or obtained from the court. Plaintiff seeks the issuance of a Rule 45 subpoena. The motion is therefore construed as a request for the attendance of an unincarceratd witness who has not agreed to testify voluntarily. Plaintiff was advised that if an unincarcerated does not agree to testify voluntarily, the party seeking the witness's presence must tender an appropriate sum of money for the witness. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 plus the witness's travel expenses. 28 U.S.C. § 1821. Further, the deadline for the filing of a motion for the attendance of unincarcerated witnesses was January 20, 2009. Plaintiff filed his motion on February 11, 2009.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's motions for the attendance of incarcerated and unincarcerated witnesses are denied.
IT IS SO ORDERED.
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