Bank v. Doe
| Todd C Bank |
| POLICE OFFICER JOHN DOE |
| 1:2021cv03796 |
| July 6, 2021 |
| US District Court for the Eastern District of New York |
| Margo K Brodie |
| Sanket J Bulsara |
| Other Statutory Actions |
| None |
Docket Report
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ORDER: Plaintiff has requested that the Court authorize him, a party to the case, to sign the subpoena #9 rather than submit it to the Clerk of Court for signature. See Dkt. No. #11 . The request is denied, as such authorization would violate Rule 45(a)(3), and as previously explained, a pro se party-even if an attorney-may not sign a Rule 45 subpoena. If Plaintiff wishes to utilize the subpoena, he must submit it to the Clerk of Court for signature as directed, and as previously noted, the subpoena may only be served by someone other a party. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/24/2021. (Farrell, Gillian)
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| Filing 11 Letter regarding subpoena by Todd C Bank (Bank, Todd) |
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ORDER: The Court approves the subpoena #9 as permissible pre-service discovery to facilitate identification of the John Doe defendants. Plaintiff should submit the subpoena to the Clerk of Court for signature. And Plaintiff is reminded that the subpoena must be served with a copy of the Court's prior order, and any service must comply with Rule 45. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/20/2021. (Farrell, Gillian)
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| Filing 10 Letter by Todd C Bank (Bank, Todd) |
| Filing 9 Subpoena by Todd C Bank. (Bank, Todd) |
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ORDER: The proposed subpoena #8 is rejected. By creating his own form, Plaintiff has created a non-compliant subpoena. "The clerk [of Court] must issue a subpoena[.]" Fed. R. Civ. P. 45 (a)(3). Alternatively, an "attorney also may issue and sign a subpoena[.]" Id. The proposed subpoena is not signed by the Clerk; nor is it signed by Mr. Bank. And since Mr. Bank is proceeding in this case pro se, not as an attorney representing a party, he cannot himself sign the subpoena. This problem can easily be resolved by Mr. Bank seeking a signed subpoena from the Clerk of Court. There are several other issues, however. First, the subpoena is a deposition subpoena. The Court did not authorize a deposition. It only authorized a subpoena to obtain documents. (E.g., Order dated Aug. 2, 2021, Dkt. No. 6 at 2 ("[I]f the 30-day period within which a Doe Defendant may contest or otherwise move with respect to a Subpoena lapses without such action, Spark will have a period of 10 days to produce the information responsive to the Subpoena to Bank. IT IS FURTHER ORDERED that Spark, upon receiving a Subpoena shall confer with Bank, and shall not assess any charge in advance of providing the information requested therein. If Spark elects to charge for the costs of production, it shall provide a billing summary and cost report to Bank[.]" (emphasis added))). If that was not clear, it should be now. (Even had the Court permitted a deposition, because this is a subpoena directed at a company or organization, it must comply with the requirements of Rule 30(b)(6), including providing clear instructions about the organizations of its duties under such a subpoena, which this does not). Second, the subpoena names the place of compliance as "[t]o be determined by the parties." That is incompatible with Rule 45(c)'s geographical limitations on places of compliance. Third, Mr. Bank asks the Court to "so-order" the subpoena. Although the Court is permitting Plaintiff to engage in pre-service discovery, it will not so-order the subpoena. "[D]iscovery is a self-executing process." Barnett v. Norman, No. 05-CV-1022, 2010 WL 3220122, at *3 (E.D. Cal. Aug. 10, 2010). "A subpoena... issued by an attorney without any court involvement, is not of the same order as one issued by a judicial officer in the resolution of a specific dispute." Cruz v. Meachum, 159 F.R.D. 366, 368 (D. Conn. 1994). When a Court so-orders a subpoena, it has an impact different from an attorney-issued subpoena. Court involvement transforms the subpoena into a court order and "[t]hat intervention serves to alert the offending party to the seriousness of its noncompliance and permits judicial scrutiny of the discovery request.... A subpoena issued by counsel does not fulfill these purposes." Daval Steel Prods., a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 136465 (2d Cir. 1991); e.g., Toussie v. Allstate Ins. Co., No. 14-CV-2705, 2017 WL 4773374, at *1 (E.D.N.Y. Oct. 20, 2017) ("The Court's purpose in directing that defendant submit a subpoena to be 'so ordered' was to remove all doubt about the necessity of compliance by making the subpoena an order of the Court."). In light of the process the Court has envisioned in its prior order - namely the ability of Spark to move to quash prior to compliance - so-ordering the subpoena would be inappropriate. Fourth, the Court considers the category of documents sought unnecessarily overbroad. The purpose of the pre-service subpoena is only to enable identification of individuals who should be named as defendants, not to complete all discovery. Any revised subpoena must strike the words "any and all documents" or similar reference and replace it with "documents sufficient to" (e.g. Exhibit B No.1 should be changed from "Complete copies of any and all documents that identify any person that placed, or was reasonably likely to have placed, any Subject Telephone Call" to "documents sufficient to identify any person that placed, or was reasonably likely to have placed, any Subject Telephone Call."). Finally, the Court notes that the proposed subpoena does not include the Court's prior order #6 , which must be part of any subpoena served upon Spark. And for avoidance of doubt, such service cannot be effectuated by Mr. Bank himself. See Fed. R. Civ. P. 45(b)(1) ("Any person who is at least 18 years old and not a party may serve a subpoena." (emphasis added)). Mr. Bank may file a revised subpoena for the Court's consideration by 8/25/2021. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/18/2021. (Farrell, Gillian)
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| Filing 8 Subpoena by Todd C Bank. (Bank, Todd) |
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ORDER: The Motion for Reconsideration #7 is denied. Following service of any subpoena to Spark Energy, LLC, which presumably will ask for documents from Verde Energy USA, Inc., Plaintiff can file a motion seeking permission to serve a subpoena on Verde if the original subpoena does not provide sufficient information to disclose the identifies of the John Doe defendants. And, of course, should Verde be a defendant, Plaintiff may, at the appropriate time, obtain discovery from Verde directly. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/13/2021. (Farrell, Gillian)
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| Filing 7 MOTION to Amend/Correct/Supplement #6 Order on Motion for Discovery,,, by Todd C Bank. (Bank, Todd) |
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Filing 6
ORDER: The Motion for Discovery #5 is granted with respect to Spark Energy, LLC, as stated in the attached Order; the Motion is denied with respect to Verde Energy USA, Inc. Bank must file the proposed Subpoena with the Court for approval before serving such Subpoena and must include the attached Order with service of any Subpoena. The request for discovery with respect to Verde is denied in light of the fact that Bank already sued Verde, the parties settled, Bank attempted to continue litigating post-settlement, and Verde was successful in discontinuing Bank's attempt at renewed litigation. Moreover, Verde is a wholly owned subsidiary of Spark, according to Bank, and Spark can ostensibly produce information from its subsidiary on its behalf. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/2/2021. (Farrell, Gillian)
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| Filing 5 MOTION for Discovery by Todd C Bank. (Bank, Todd) |
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ORDER: The Motion for Discovery #4 is denied. The Court does not conduct initial conferences when only Plaintiff has appeared in the case nor do the Rules of Civil Procedure permit the entry of a Rule 16 order in such a circumstance. Plaintiff may file a motion to seek pre-initial conference discovery pursuant to Rule 26(d)(1) and explain why such discovery is appropriate under the relevant standards for such a motion. So Ordered by Magistrate Judge Sanket J. Bulsara on 7/16/2021. (Farrell, Gillian)
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| Filing 4 MOTION for Discovery [request to schedule initial conference] by Todd C Bank. (Bank, Todd) |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| Filing 2 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) |
| Case Assigned to Chief Judge Margo K. Brodie and Magistrate Judge Sanket J. Bulsara. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) |
| Filing 1 COMPLAINT against JOHN DOE filing fee $ 402, receipt number ANYEDC-14629638 Was the Disclosure Statement on Civil Cover Sheet completed -y,, filed by Todd C Bank. (Bank, Todd) (Additional attachment(s) added on 7/7/2021: #1 Civil Cover Sheet) (Bowens, Priscilla). Modified on 7/7/2021 (Bowens, Priscilla). |
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| Plaintiff: Todd C Bank | |
| Represented By: | Todd C. Bank |
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| Defendant: POLICE OFFICER JOHN DOE | |
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