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Morgutia-Johnson v. City of Fresno

United States District Court, E.D. California

March 9, 2015

IDALIA J. MORGUTIA-JOHNSON, Plaintiff,
v.
CITY OF FRESNO, et al., Defendants.

ORDER THAT TASHA COLE APPEAR ON MARCH 18, 2015, TO SHOW CAUSE WHY SHE SHOULD NOT BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A SUBOPENA TO APPEAR FOR A DEPOSITION (Doc. 31)

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

On January 28, 2014, Plaintiff Idalia J. Morgutia-Johnson ("Plaintiff") filed a complaint alleging violations of Title 42 U.S.C. § 1983 against Defendants City of Fresno, Jerry Dyer, Sergeant Larry Hustedde, and Officer Jeffrey Kaiser ("Defendants").[1] On March 6, 2015, Defendants filed "an ex parte application and motion for a court order to compel the deposition of Tasha Cole; extend time for the limited purpose of the deposition and a request to extend the time for the deposition; sanctions; and service by posting on door of home." (Doc. 31.) For the reasons set forth below, the Court construes Defendant's ex parte request for an order to compel the deposition of Tasha Cole as a request for a court order to show cause why Ms. Cole should not be held in civil contempt. (Doc. 31.)

II. BACKGROUD

Defendants claim that Ms. Cole is a witness to the incident that is the subject of this suit, and her observations about what occurred during the incident are relevant and discoverable. Defendants claim they did not have identifying information for Ms. Cole until early January 2015, but once they were able to identify her, they immediately requested that a notice of deposition be served. The process server made 12 attempts to personally serve Ms. Cole at her home between January 14, 2015, and January 22, 2015, with a subpoena and deposition notice setting a deposition for January 23, 2015.

On January 19, 2015, Ms. Cole called Defendants' service processer and stated she was not aware of the case. On that same day, Ms. Cole also called Defendants' counsel's paralegal and informed the paralegal she would be willing to accept service of the deposition notice in person and attend the deposition. Defendants contend Ms. Cole evaded any further service attempts and discontinued answering her cell phone.

On January 23, 2015, Ms. Cole failed to appear for her scheduled deposition. Defendants' counsel called Ms. Cole's cell phone to remind her of the deposition. A male answered the cell phone and, according to Defendants' counsel, was "verbally disgruntled and threatening." (Doc. 31-1, Arbucci Decl., ¶ 5.) He informed Defendants' counsel that Ms. Cole was not going to attend her deposition.

On February 20, 2015, Defendants' private investigator attempted service of another subpoena and deposition notice at Ms. Cole's home address, which was completed. Defendants thereafter sought an extension of the non-expert deadline, which was granted. On February 26, 2015, Ms. Cole was once again served with a subpoena re-setting her deposition for March 3, 2015. Ms. Cole failed to appear for the March 3, 2015, deposition. (Doc. 31-1, Arbucci Decl., ¶ 15.)

III. DISCUSSION

A. The Subpoena and Service of the Subpoena Upon Ms. Cole on February 26, 2015

A subpoena served pursuant to Federal Rule of Civil Procedure 45 shall "command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person." Fed.R.Civ.P. 45(a)(1)(A)(iii). Every deposition subpoena must state the court from which it issued, state the title of the action and its civil-action number, specify to each person to whom it is directed the time and place set for the deposition, and set out the text of Rule 45(d) and (e). Fed.R.Civ.P. 45(a)(1)(B)(i)-(iv). A subpoena commanding a deposition must also set forth the method for recording the testimony. Fed.R.Civ.P. 45(a)(1)(B). Serving a subpoena requires "delivering a copy to the named person, " which is interpreted to mean personal service. Fed.R.Civ.P. 45(b)(1). See Prescott v. Cnty. of Stanislaus, No. 1:10-cv-00592 JLT, 2012 WL 10617, at *3 (E.D. Cal. Jan. 3, 2012) (a majority of courts interpreting "delivering" to require personal service).

Here, Ms. Cole was served with two subpoenas commanding her appearance at a deposition, and she failed to comply with either subpoena.[2] Both subpoenas served on Ms. Cole complied with the substantive requirements of Rule 45. (Doc. 32, p. 22-14.) The subpoenas each indicate they were issued by the United States District Court for the Eastern District of California, state the title of this action along with the civil-action number, and set out the text of Rule 45(d) and (e). The subpoenas command Tasha Cole to appear at Huseby Court Reporting at 7815 N. Palm Avenue, Suite 120, Fresno, CA 93711, and state the deposition will be recorded by shorthand court reporter. (Doc. 32, Exhibit Q, p. 22.) The first subpoena set the deposition for January 23, 2015, at 9:00 a.m. (Doc. 32, p. 4), and the second subpoena set a deposition for March 3, 2015, at 10 a.m. (Doc. 32, p. 22).

The first subpoena setting a deposition for January 23, 2015, however, was not personally served but was posted at the front door of 1512 N. Pacific Avenue, Fresno, California.[3] The second subpoena was served personally on Ms. Cole on February 26, 2015. (Doc. 31-1, Exhibit K, p. 56.) It is this second subpoena served on Ms. Cole on February 26, 2015, and Ms. Cole's ...


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