Opinion
Case No. 1:13-cv-01991-DAD-SAB
12-18-2015
REYNALDA MOLINA, et al., Plaintiffs, v. CITY OF VISALIA, et. al. Defendants.
ORDER DENYING DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER REQUIRING ARACELI CISNEROS TO SHOW CAUSE FOR FAILURE TO APPEAR AND REQUIRING ARACELI CISNEROS TO APPEAR FOR DEPOSITION ON JANUARY 29, 2016 AT 1:00 P.M.
Currently before the Court is Defendants' ex parte application for an order requiring non-party Araceli Cisneros to appear for a deposition.
I.
BACKGROUND
Plaintiffs Reynalda Molina, Jacqueline Mendez-Maduena, Nicholas Chavez, and minors J.M., G.M., and N.A.C. filed this action on December 4, 2013. (ECF No. 1.) Currently, this action is proceeding on the second amended complaint, filed June 20, 2014, against Defendants City of Visalia, and Officers Adam Collins, Daniel Roberts, and Dirk Alfano alleging unreasonable search and seizure in violation of the Fourth Amendment, violations of substantive due process in violation of the Fourteenth Amendment, and state law claims.
The claims in this action arise out of an incident in which officers attempted to make a traffic stop which led to a high speed chase and resulted in injury to Nicholas Chavez and the deaths of Edwardo Maduena and Ruben Molina. (ECF No. 40.) On November 20, 2015, Plaintiff Chavez's claims were dismissed with prejudice upon the stipulation of the parties. (ECF No. 50.)
The parties to this action appeared at 1:00 p.m. on December 14, 2015, for the deposition of Araceli Cisneros, however Ms. Cisneros did not appear. (Declaration of Leonard Herr ¶ 2, ECF No. 67-1.) On December 16, 2015, Defendants filed an ex parte application for an order requiring Araceli Cisneros to appear to show cause why she should not be held in contempt for her failure to appear and for an order requiring her to appear for a deposition on January 29, 2016, at 9:00 a.m. (ECF No. 67.)
II.
DISCUSSION
Rule 30 of the Federal Rules of Civil Procedure provides that a party may depose any person for oral deposition. Where the person to be deposed is not a party to the action, the deponent's attendance may be compelled by issuing a subpoena under Rule 45. Fed. R. Civ. P. 30(a)(1).
Rule 45 of the Federal Rules of Civil Procedure sets out the requirements for a subpoena. Fed. R. Civ. P. 45 (a)(1)(A). As relevant here, the subpoena must command the individual to appear at the time and place. Fed. R. Civ. P. 45(a)(1)(A)(iii). Rule 45(g) provides that the court "may hold in contempt a person, who having been served, fails without adequate excuse to obey the subpoena or an order related to it." "The party moving for contempt has the burden to establish by clear and convincing evidence that the contemnor has violated a clear and specific court order." Forsythe v. Brown, 281 F.R.D. 577, 587 (D. Nev. 2012) report and recommendation adopted, No. 3:10-CV-00716-RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012).
While Defendants' motion states that Ms. Cisneros was timely served with a subpoena to appear for the deposition, no subpoena or proof of service is included in this motion. Therefore, the Court is unable to determine whether the requirements of Rule 45 have been met. For this reason, Defendants' motion for an order requiring Ms. Cisneros to show cause why she should not be held in contempt is denied.
However, since there has been a pattern of witnesses failing to appear for deposition in this action, the Court finds it appropriate to issue an order requiring Ms. Cisneros to appear for a deposition. Defendants shall be required to provide Ms. Cisneros with reasonable notice of the date and time to appear.
III.
CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Defendants' ex parte application for an order requiring Araceli Cisneros to show cause is DENIED;IT IS SO ORDERED. Dated: December 18 , 2015
2. Defendants shall serve a copy of this order on Araceli Cisneros on or before January 14, 2016;
3. Araceli Cisneros shall appear for deposition at Herr Pedersen & Berglund LLP, located at 100 Willow Plaza, Suite 300, Visalia, California, on January 29, 2016, at 1:00 p.m.; and
4. Araceli Cisneros is advised that failure to comply with this order will result in the issuance of sanctions and may result in the issuance of a warrant for her arrest.
/s/_________
UNITED STATES MAGISTRATE JUDGE