Clemons v. United States ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Julia A. Clemons, Case No. 2:19-cv-00248-RFB-BNW 5 Plaintiff, ORDER re ECF No. 54 6 v. 7 United States of America, 8 Defendant. 9 10 Before the Court is Plaintiff’s Motion to Compel Production of Documents in Compliance 11 with Non-Party Subpoena and for Contempt.1 ECF No. 54. Plaintiff served non-party Don Nobis, 12 PT/Don Nobis Progressive Physical Therapy (“the non-party”) with this motion and noted that a 13 response to it would be due on 12/13/2021. ECF No. 56. The non-party has not filed a response, 14 and the time to do so has passed. See LR 7-2(b) (“For all other motions, the deadline to file and 15 serve any points and authorities in response to the motion is 14 days after service of the motion.”) 16 IT IS THEREFORE ORDERED that ECF No. 54 is GRANTED in part and DENIED 17 in part. See LR 7-2(d) (“The failure of an opposing party to file points and authorities in response 18 to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, 19 constitutes a consent to the granting of the motion.”). It is granted to the extent that, by 1/4/2022, 20 non-party Don Nobis, PT/Don Nobis Progressive Physical Therapy must comply with the 21 subpoena that was served on 7/16/2021 and turn over the requested documents to Paul Padda 22 Law, PLLC. See ECF No. 54-1, 54-2. But the motion is denied with respect to recommending that 23 non-party Don Nobis, PT/Don Nobis Progressive Physical Therapy pay monetary sanctions or be 24 held in contempt for failing to comply with the subpoena. 25 First, Plaintiff does not provide legal support for why the non-party should pay the fees 26 and costs associated with bringing her motion to compel. See ECF No. 54 at 6. The Court, 27 1 Plaintiff served the non-party on July of 2021 with a subpoena requesting her medical records from the 1 || however, interprets Plaintiff's request for such monetary sanctions as a request under Federal 2 || Rule of Civil Procedure 37. But Rule 37 sanctions only apply to parties. See, e.g., Pennwalt 3 Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983) (Rule 37 sanctions may not be 4 || applied “against a nonparty for failure to comply with a subpoena duces tecum’’). And, here, 5 || Plaintiff is seeking to compel documents from a non-party. 6 Second, a court may not hold in contempt a non-party that has failed to comply with a 7 || Federal Rule of Civil Procedure 45 subpoena without first providing notice. See In re Plise, 506 8 || B.R. 870, 879 (B.A.P. 9th Cir. 2014) (“[I]n cases of nonparty subpoenas under Civil Rule 45, the 9 || court must first issue an order compelling the nonparty's compliance with the subpoena, and the 10 || nonparty must fail to comply with the order before any contempt sanctions can be awarded.”). 11 || That said, if non-party Don Nobis, PT/Don Nobis Progressive Physical Therapy does not comply 12 || with the subpoena by 1/4/2022, Plaintiff may move for an order to show cause as to why the non- 13 || party should not be held in contempt. 14 IT IS FURTHER ORDERED that, by 12/20/2021, Plaintiff must serve non-party Don 15 || Nobis, PT/Don Nobis Progressive Physical Therapy with a copy of this Order and file 16 || certification of service with the Court. 17 IT IS FURTHER ORDERED that the hearing set for 1/26/2021 is hereby VACATED. 18 19 DATED: December 16, 2021. 20 Gisn le weber _ BRENDA WEKSLER 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28