United States District Court, D. Nevada
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion to Quash
Unserved Subpoena (ECF No. 30), filed on August 23, 2017.
Defendant filed her Response (ECF No. 32) on August 28, 2017.
Plaintiff filed his Reply (ECF No. 40) on September 5, 2017.
Also before the Court is Defendant's Motion for Sanctions
(ECF No. 34), filed on August 28, 2017. Plaintiff filed his
Response (ECF No. 38) on September 5, 2017. Defendant filed
her Reply (ECF No. 43) on September 8, 2017.
August 22, 2017, a process server attempted to serve a
subpoena to testify on Tina Jackson at Plaintiff's
residence. While attempting to serve the subpoena, the
process server encountered Plaintiff in his garage. He
instructed the process server to leave his property and the
process server was unable to effectuate service. Plaintiff
requests that the Court quash the unserved subpoena because
Defendant did not list Tina Jackson as a witness on
Defendant's Fed.R.Civ.P. 26 disclosures. Plaintiff
further argues that the subpoena is an attempt to harass him.
Defendant represents that she served a notice of deposition
on Ms. Jackson on June 21, 2017 because she believes Ms.
Jackson has knowledge of real property sales relating to
Plaintiff and the claims and defenses in this matter.
argues that Plaintiff sought an order to quash the subpoena
without supporting facts or legal authority and that
Plaintiff took unlawful actions to obstruct Defendant's
discovery efforts. Defendant requests monetary and
dispositive sanctions pursuant to Fed.R.Civ.P. 37 and
30(d)(3). Plaintiff argues that Defendant's allegations
that he threatened a legal process server lack evidentiary
support and that Defendant did not provide notice of the
timely motion, the court for the district where compliance is
required must quash or modify a subpoena that: (i) fails to
allow a reasonable time to comply; (ii) requires a person to
comply beyond the geographical limits specified in Rule
45(c); (iii) requires disclosure of privileged or other
protected matter, if no exception or waiver applies; or (iv)
subjects a person to undue burden.” Fed.R.Civ.P.
15(d)(3)(A). “[A] party lacks standing under
Fed.R.Civ.P. 45[ (d)(3)(A) ] to challenge a subpoena issued
to a non-party unless the party claims a personal right or
privilege with respect to the documents requested in the
subpoena.” Proficio Mortg. Ventures, LLC v. Fed.
Sav. Bank, 2016 WL 1465333, at *3 (D. Nev. Apr. 14,
2016). A party lacks standing to quash a subpoena on grounds
that it is overbroad or unduly burdensome on a third party.
Dale Evans Parkway 2012, LLC v. Nat'l Fire &
Marine Ins. Co., 2016 WL 7486606, at *3 (C.D. Cal. Oct.
27, 2016). “However, a party may seek a protective
order pursuant to Rule 26(c) regarding a subpoena issued to a
non-party if it believes its own interest is jeopardized by
the discovery sought from the non-party.” Id.
The party that moves to quash a subpoena has the burden of
persuasion. Moon v. SCP Pool Corp., 232 F.R.D. 633,
637 (C.D. Cal. 2005).
of the Federal Rules of Civil Procedure provides the court
with a wide range of sanctions for a party's failure to
adequately engage in discovery. “The Rule provides a
panoply of sanctions, from the imposition of costs to entry
of default.” United States v. Taylor, 166
F.R.D. 356, 363 (M.D. N.C. ), aff'd, 166 F.R.D. 367 (M.D.
N.C. 1996). “Discovery sanctions serve the
objectives of discovery by correcting for the adverse effects
of discovery violations and deterring future discovery
violations from occurring.” Taylor v.
Illinois, 484 U.S. 400, 425 (1988). The court may levy
sanctions based on its inherent authority to respond to
abusive litigation practices or on a party's failure to
obey a discovery order. Wilson v. Wal-Mart Stores,
Inc., 2016 WL 878494, at *2 (D. Nev. Mar. 7, 2016). The
court may apply “dispositive sanctions” and
dismiss a party's claim or defense. However, the court
should impose dispositive sanctions only where “a party
has engaged deliberately in deceptive practices that
undermine the integrity of judicial proceedings.”
Grove City Veterinary Serv., LLC v. Charter Practices
Int'l, LLC, 2015 WL 4937393, at *3 (D. Or. Aug. 18,
2015) (citing Leon v. IDX Sys. Corp., 464 F.3d 951,
958 (9th Cir.2006)). Defendant requests sanctions for
Plaintiffs alleged implied threat of violence against a
process server. She argues that Fed.R.Civ.P. 30(d)(3) is
analogous as it relates to the fair examination of a witness
and allows for sanctions. Defendant, however, does not
elucidate upon her argument for sanctions.
does not set forth a personal right or privilege with respect
to the subject of the subpoena and, therefore, lacks standing
to challenge the nonparty subpoena. The Court, therefore,
denies his motion to quash the unserved subpoena without
prejudice to Plaintiff filing a motion for protective order.
As stated previously, Plaintiff is a pro se litigant
and to the Court's knowledge has not been previously
sanctioned. Plaintiff must abide by the Federal Rules of
Civil Procedure and cannot engage in abusive litigation
tactics. Defendant, however, does not set forth a sufficient
basis to warrant an award of monetary or dispositive
sanctions against Plaintiff in this instance. Instructing a
process server to leave one's property is not unlawful
and does not justify the imposition of sanctions.
Accordingly, IT IS HEREBY ORDERED that
Plaintiffs Motion to Quash Unserved Subpoena (ECF No. 30) is
IS FURTHER ORDERED that Defendant's Motion for