United States District Court, D. Maryland
Xinis United States District Judge
is Plaintiff Fay Cole's consent motion for order to show
cause. The issues are fully briefed and the Court now rules
pursuant to Local Rule 105.6 because no hearing is necessary.
For the reasons stated below, the motion is granted.
February 10, 2017, Plaintiff Fay Cole ("Plaintiff) filed
a Complaint against Defendants Family Dollar, Inc. and Family
Dollar Stores of Maryland, Inc., see ECF No. 1, and
an Amended Complaint on June 6, 2017. See ECF No.
17. The Amended Complaint states that Defendant sent a
then-current employee, Marsha Walker, to respond to an
internal complaint of discrimination that Plaintiff filed
with human resources. Walker met with Plaintiff to discuss
her complaint but ultimately decided not to take any action
in response. See ECF No. 17 at 4-5. Defendant
responded to the interrogatories propounded by Plaintiff and
identified Walker as someone with information that pertains
to his case. See ECF No. 24-1 at 2.
24, 2017, Plaintiffs counsel subpoenaed Walker to attend a
deposition scheduled for August 30, 2017. Walker failed to
appear. Plaintiff, with Defendants' consent, then filed a
motion pursuant to Rule 45 of the Federal Rules of Civil
Procedure to show cause why she should not be held in
contempt for failing to appear at her scheduled deposition.
See ECF No. 24.
45(g) of the Federal Rules of Civil Procedure provides that a
court “may hold in contempt a person who, having been
served [a subpoena], fails without adequate excuse to obey
the subpoena or an order related to it.” Fed.R.Civ.P.
45(g). Rule 45(a) requires that a subpoena (i) state the name
of the court from which it has been issued; (ii) state the
title of the action and the civil-action number; (iii)
command attendance, production, or inspection and specify the
time and place for doing so; and (iv) contain the text of
subdivisions 45(d) and 45(e), which address the protection of
persons subject to the subpoena and the duties in responding.
See Fed. R. Civ. P. 45(a).
service of a subpoena requires delivering a copy to the named
person and, if the subpoena necessitates the witness's
attendance, tendering the fees for one day's attendance
and the mileage allowed by law is required. Fed.R.Civ.P.
45(b)(1). Unless otherwise ordered by the Court or agreed on
by the parties, fourteen days' advance notice of a
deposition is reasonable within the meaning of Fed.R.Civ.P.
30(b)(1). See Local Rule App'x A, Guideline 9(b)
(D. Md. July 2016).
subpoena to Walker satisfied the requirements enumerated in
Rule 45. See ECF No. 24-2. The subpoena specified
the Court from which it was issued, the title of the civil
action, the time and place of the deposition, and it included
the language setting forth the protection of persons subject
to subpoenas and duties in responding to a subpoena. See
Id. The process server also handed Walker a letter that
included contact information for Plaintiff's counsel and
an offer to answer any questions. A check for $50 accompanied
the subpoena to cover attendance and mileage. Finally, the
subpoena was personally served on Walker approximately five
weeks in advance of the scheduled deposition.
timely motion, a subpoena must be quashed or modified by the
court if it: (i) fails to allow a reasonably time to comply;
(ii) requires a person to comply beyond the geographical
limits specified in Rule 45(c); (iii) requires the 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. 45(d). An individual who fails to modify, quash,
or otherwise provide good cause for failing to cooperate with
a subpoena may be ordered to appear before the Court to
provide adequate excuse for why he should not be found in
contempt of Court for failure to comply. Fed.R.Civ.P. 45(g);
see United States v. Bigwitch, 1990 WL 168183, at *1
(4th Cir. Nov. 5, 1990).
has not filed a motion to quash or modify the subpoena.
Absent a timely motion to quash or modify or an assertion of
privilege, the Court may exercise its discretion and direct
Walker to appear before the Court to provide adequate excuse
for his failure to comply with the subpoena. Cf.
Dunkin' Donuts, Inc. v. Three Rivers Entm't And
Travel, 42 F. App'x 573, 575 (4th Cir. 2002)
(“As a general principle, it has been observed that
‘[a]lthough there are no specific procedural steps to
follow in civil contempt proceedings, due process requires
that the [alleged contemnor] be given the opportunity to be
heard at a ‘meaningful time and in a meaningful
manner.'” (quoting Fisher v. Marubeni Cotton
Corp., 526 F.2d 1338, 1343 (8th Cir. 1975)).
Accordingly, absent an adequate excuse from Walker the Court
will enforce the subpoena and reserves the right to hold
Walker in contempt for failure to obey a court order.
foregoing reasons, the Court grants Plaintiff's consent
motion and directs non-party witness Marsha Walker to appear
before the Court to show cause for why she should not be held
in contempt ...