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Gregory Steshenko v. Thomas Mckay


October 9, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Presently before this court is plaintiff's motion to quash subpoena directed to the State of California Employment Development Department ("EDD"), filed August 9, 2012. Also before the court are plaintiff's motion to proceed in forma pauperis and motion for permission to file electronically.

Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff also moves for leave to file his papers electronically. The local rules of this court provide that "Any person appearing pro se may not utilize electronic filing except with the permission of the assigned Judge or Magistrate Judge." E. D. Cal. L. R. 133(b)(2). Requests to use electronic filing may be submitted as written motions setting out an explanation of reasons for the requested exception. E. D. Cal. L. R. 133(b)(3). Because the court decides the motion to quash, and thus resolves the essence of this case in this order, plaintiff's request for electronic filing is denied as unnecessary.

By order of August 23, 2012, plaintiff was directed to notice his motion to quash for hearing, and serve the motion on all defendants as well as non-party Employment Development Department. Plaintiff was further ordered to file a statement indicating service of the motion within fourteen days.

Plaintiff seeks an order quashing a subpoena issued by some of the defendants in the underlying action in the Northern District of California*fn1 on non-party EDD. On September 27, 2012, defendants Scopazzi, Carrillo, Newell and Watsonville Community Hospital filed a response to the motion to quash.*fn2 These defendants contend that the subpoena at issue was issued May 1, 2012, with a production date of May 22, 2012, and therefore plaintiff's motion to quash is untimely. They further assert that no records were produced by the EDD in response to the subpoena based on confidentiality. (Response, Ex. A.) Therefore, defendants argue, the motion is moot.

Although plaintiff filed a reply to this response, no other party or non-party has filed a response. Furthermore, plaintiff has not filed a statement that he served the motion as required by the August 23rd order. Therefore, the court accepts the representation of responding defendants. Plaintiff's reply states only that the matter is not moot "because Defendants might still request a court order to obtain a part of the denied information." The threat of future action is insufficient and renders the matter unripe for decision at this time.

Accordingly, IT IS ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis is granted.

2. Plaintiff's motion for leave to electronically file all further papers in this case is denied as unnecessary.

3. Plaintiff's motion to quash subpoena, filed August 10, 2012, (dkt. no. 1), is denied as moot.

4. The October 18, 2012 hearing is vacated from the calendar.

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