United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner's Motion in
Support of Subpoena. (Doc. 1.) In addition to his Motion in
Support of Subpoena, Petitioner filed a Motion to Set
Expedited Deadlines, (doc. 5), and a Motion to Compel
Subpoena, (doc. 6). For the reasons set forth below, the
Court DENIES Petitioner's Motion in Support of Subpoena.
(Doc. 1.) Therefore, the Court DISMISSES AS MOOT
Petitioner's Motion to Set Expedited Deadlines and Motion
to Compel Subpoena. (Docs. 5, 6). I recommend that the Court
DISMISS this case and DIRECT the Clerk of Court to CLOSE this
April 8, 2016, Petitioner Rafael Galan-Olavarria, an inmate
at the Federal Correctional Institution in Jesup, Georgia,
(“FCI Jesup”) commenced this action by filing the
instant Motion with this Court. (Doc. 1.) Therein, Petitioner
requests that the Court issue a subpoena for production of
electronically stored information kept by prison authorities
at FCI Jesup. Specifically, he seeks recorded conversations
sustained between Petitioner and his criminal defense
attorney through the prison's telephone system.
(Id. at pp. 4-5.) Petitioner explains that, during
these recorded conversations, his former counsel admitted to
rendering ineffective assistance of counsel during
petitioner's criminal trial. (Id. at p. 2.)
Petitioner maintains that these records are necessary to show
deficient performance by his counsel. Other than the Motion
in Support of Subpoena, (doc. 1), and two related Motions,
Petitioner has not made any other filings in this
courts are courts of limited jurisdiction possessing only the
power strictly authorized by the Constitution and statutes.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). The court's jurisdiction cannot be
expanded merely through judicial decree. Id.
(citations omitted). “It is to be presumed that a cause
lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id. (internal citations
does not allege any basis in his Motion for the Court to
exercise jurisdiction in this case. Petitioner states that he
requires access to these telephone records to prove that his
trial counsel was ineffective. However, Petitioner does not
indicate that any action is pending between Petitioner and
his attorney, much less an action in this Court or any other
federal court. Furthermore, Petitioner has not brought any
claims in this Court seeking relief of any kind other than
moving for a subpoena. Accordingly, this Court does not have
jurisdiction to subpoena the requested records. See
U.S.Catholic Conference v. Abortion Rights Mobilization,
Inc., 487 U.S. 72, 76 (1988) (“[T]he subpoena
power of a court cannot be more extensive than its
jurisdiction. . . . [I]f a district court does not have
subject-matter jurisdiction over the underlying action . . .
then the process is void”); United States v. Morton
Salt Co., 338 U.S. 632, 642 (1950) (“The judicial
subpoena power . . . is subject to those limitations inherent
in the body that issues them”); McCook Metals LLC
v. Alcoa, Inc., 249 F.3d 330, 334 (4th Cir. 2001)
(ancillary court's power to issue subpoenas is dependent
on jurisdiction of court where underlying action is pending);
Houston Bus. Journal, Inc. v. Office of the Comptroller
of the Currency, 86 F.3d 1208, 1213 (D.C. Cir. 1996)
(“[T]he district court is . . . without power to issue
a subpoena when the underlying action is not even asserted to
be within federal-court jurisdiction”); Sullivan v.
Dickson, 283 F.2d 725, 727 (9th Cir. 1960) (motion to
inspect documents under Fed.R.Civ.P. 34 or 45(b) cannot be
granted in absence of pending proceeding); In re Rum
Mktg. Int'l, Ltd., No. 07-21466-MC, 2007 WL 2702206,
at *2 (S.D. Fla. Sept. 14, 2007) (“Here, however, there
is no pending case before another federal court that has
subject matter jurisdiction over the parties and the
litigation. Consequently, there is no jurisdiction purely
under the provisions of Rules 26 or 45 for counsel for [one
party] to issue a Rule 45 subpoena, nor any jurisdiction for
counsel for [the other party] to move to quash that
subpoena.”) cf. 9A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2456
at 29 (2d ed. 1995) (“subpoena may issue only in aid of
a pending action”).
extent that Petitioner seeks these phone records for an
ongoing criminal case, he should petition the court in which
that case is pending for a subpoena. While FCI Jesup is
located within this District, Rule 17(e) of the Federal Rules
of Criminal Procedure provides for service of a subpoena upon
a witness at any place within the United States. In re
Subpoenas Duces Tecum, 248 F. 137, 137 (E.D. Tenn. 1916)
(the authorization of subpoenas for witnesses in criminal
cases to run into any other district includes subpoenas duces
tecum as well as the ordinary subpoenas ad
above stated reasons, the Court DENIES Petitioner's
Motion in Support of Subpoena. (Doc. 1.) Therefore, the Court
DISMISSES AS MOOT Petitioner's Motion to Set Expedited
Deadlines and Motion to Compel Subpoena. (Docs. 5, 6).
Moreover, Petitioner does not request any relief in this case
other than the issuance of a subpoena, and Petitioner has not
properly invoked this Court's jurisdiction in any way.
Accordingly, there is nothing further for this Court to do in
this matter. Consequently, I recommend that the Court DISMISS
this case and DIRECT the Clerk of Court to CLOSE this case.
Court ORDERS any party seeking to object to this Report and
Recommendation to file specific written objections within
fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the
Magistrate Judge failed to address any contention raised in
the Complaint must also be included. Failure to do so will
bar any later challenge or review of the factual findings or
legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S.
140 (1985). A copy of the objections must be served upon all
other parties to the action. The filing of objections is not
a proper vehicle through which to make new allegations or
present additional evidence.
receipt of Objections meeting the specificity requirement set
out above, a United States District Judge will make a de
novo determination of those portions of the report,
proposed findings, or recommendation to which objection is
made and may accept, reject, or modify in whole or in part,
the findings or recommendations made by the Magistrate Judge.
Objections not meeting the specificity requirement set out
above will not be considered by a District Judge. A party may
not appeal a Magistrate Judge's report and recommendation
directly to the United States Court of Appeals for the
Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge.
The Clerk of Court is DIRECTED to serve a copy of this Report
and Recommendation upon the Plaintiff.
ORDERED and ...