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Miller v. Rufion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 29, 2010

GERALD L. MILLER, JR. PLAINTIFF,
v.
O. RUFION; MOONGA, R.N., DEFENDANTS.

The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court

CDCR #C-92075

ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR SUBPOENA

[Doc. No. 97]

I. INTRODUCTION

This case comes before the Court on Plaintiff's ex parte motion for subpoenas. [Doc. No. 97.] Plaintiff's motion is DENIED as discussed herein.

II. STANDARD OF REVIEW

Under Rule 45 of the Federal Rules of Civil Procedure, a plaintiff proceeding in forma pauperis may be entitled to the issuance of a subpoena commanding the production of documents from non-parties. See Fed.R.Civ.P. 45. Such a request is not automatic, however. The request must be timely. The documents which are the subject of the subpoena must be non-privileged and relevant. See Fed.R.Civ.P. 26(b)(1); Fed.R.Civ.P. 34.

III. DISCUSSION

Plaintiff was advised in this Court's Scheduling Order [Doc. No. 27] that "all discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date, taking into account the times for service, notice and response as set forth in the Federal Rules of Civil Procedure." Id. (emphasis added). Plaintiff's request is untimely. Discovery closed on October 6, 2010, however Plaintiff's request was not filed in time for the subpoenas to be issued and and a response to be returned before passage of the October 6, 2010 deadline. Moreover, Plaintiff has not provided a description of the specific documents he is seeking. The Court has no way to determine if the documents Plaintiff seeks are different from the documents for which he received a subpoena in May of this year. See Court's May 10, 2010 Order at Doc. No. 54. Accordingly Plaintiff's ex parte motion for subpoenas is DENIED.

IV. CONCLUSION AND ORDER

THEREON For the foregoing reasons, Plaintiff's ex parte motion for subpoenas is DENIED.

IT IS SO ORDERED.

20101029

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