Hamilton v. Radnor Twp.

• Decision Date: 16 February 2023
• Docket Number: Civil Action 19-cv-02599-MSG
• Parties: KARIMU HAMILTON, Plaintiff, v. RADNOR TOWNSHIP, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

KARIMU HAMILTON, Plaintiff, v. RADNOR TOWNSHIP, et al., Defendants.

Civil Action No. 19-cv-02599-MSG

United States District Court, E.D. Pennsylvania

February 16, 2023

MEMORANDUM OPINION

RICHARD A. LLORET U.S. MAGISTRATE JUDGE

The Plaintiff, Karimu Hamilton (“Hamilton” or “Plaintiff”), has brought suit against various employees of Radnor Township's Police Department and the Bryn Mawr Fire Company. Doc. Nos. 2, 58. The Delaware County Children and Youth Services (“DCYS”), an interested third-party in the civil action, filed a Motion to Quash a subpoena. Doc. No. 177. Judge Mitchell Goldberg randomly assigned review of the motion to a U.S. Magistrate Doc. No. 184.

PROCEDURAL HISTORY AND FACTS

Hamilton alleges gender and racial discrimination by state agencies and others in violation of Plaintiff's civil rights under federal law. The complaint invokes federal question jurisdiction. On August 8, 2019, Plaintiff filed a second amended complaint^[1] against Christopher Flanagan, Andrew Pancoast, Kevin Kochanski, Rachel Ridgeway, Justin Ridgeway, and Radnor Police Officers Nos. 1, 2, 3, 4, and 5.^[2] Doc. No. 13. Plaintiff pleads six counts for relief: (1) illegal searches violating the 4^th Amendment, (2) retaliation for complaining of police misconduct,^[3] (3) an equal protection violation, (4) eviction without Due Process, (5) false arrest, and (6) use of excessive force. Doc. No. 13, at 12-17. Plaintiff filed a third amended complaint on September 17, 2020, adding the Bryn Mawr Fire Company as a named defendant. Doc. No. 58.

On December 3, 2018, an Officer from the Radnor Police Department responded to Plaintiff's house due to a report of the smell natural gas emanating from the property Plaintiff alleges the Officer forcibly entered her house and conducted a search but found the report to be unsubstantiated. Id. at 2-3. The next day, the Delaware County Office of Children and Youth Services (“DCYS”) called Plaintiff and relayed that a mandated reporter communicated the home was unfit for children and DCYS would initiate an investigation of the property. Id. at 3. At 9 p.m. December 4, a DCYS case worker and police officer conducted a search of Plaintiff's home without Plaintiff's permission and without a warrant. Id. at 4. On January 15, 2019, DCYS determined the report was unfounded. Id. Plaintiff alleges that Defendants Rachel and Justin Ridgeway, her neighbors, made false police reports against Plaintiff for threatening behavior, instigated retaliatory behavior against Plaintiff by the Radnor Township Police Department, and instigated an illegal condemnation of the Plaintiff's home. Id. at 5-8.

Initial discovery disputes were brought to Judge Goldberg's attention on October 26, 2021. See Doc. No. 88. Discovery has been a rocky road. See e.g., Doc. No. 132. Disputes continue. See Doc. Nos. 166-69, 177-78, 180-81.

On December 6, 2022, Plaintiff filed a motion to enforce a subpoena against DCYS. Doc. No. 166. The subpoena demanded production of documents relating to the December 4, 2018 visit by DCYS to 30 Garrett Ave., Bryn Mawr, PA 19010-the residence where Plaintiff lived with her daughter and the residence where the alleged police misconduct occurred. Id. at 1. In response, Radnor Individual Defendants requested the Court allow DCYS to produce the appropriately redacted documents and require Plaintiff to produce to all Defendants copies of documents obtained through the subpoena. Doc. No. 167, at 3 (asserting that Defendants were unaware of the subpoena, requesting Plaintiff's minor daughter's identity be protected and that defendants receive copies of the discovery per Fed.R.Civ.P. 45(a)(4)). On December 15, 2022, Judge Goldberg ordered DCYS to respond or object within seven days of the order. Doc. No. 169.

On January 12, 2023, DCYS filed a Motion to Quash and for Protective Order. Doc. No. 177. In the motion, DCYS argues that (1) the subpoena was improperly served pursuant to Rule 45(b)(1); (2) a protective order is appropriate under the Pennsylvania Child Protective Services Act (“CPSL”), 23 Pa. C.S. §§ 6301, 6339, and 6340, and 55 Pa Code Section 3130.44; (3) a protective order is also appropriate under the attorney work product doctrine. On February 6, 2023, Judge Goldberg referred the motion to quash to me. Disposition of the motion will require in-camera review of numerous documents. Doc. No. 184. Before I undertake that task, I want to disclose the law I will apply.

DISCUSSION

A. Subpoenas Are Served and Are Met with A Motion to Quash.

Plaintiff failed to properly serve her subpoena of November 17, 2022. Her subpoena of January 13, 2023 was arguably out of time, as it was issued and served after the time for discovery had expired. A timeline of events relating to the subpoena is helpful.

• November 17, 2022: The First subpoena to DCYS is issued. Doc. No. 177, Exhibit A. Plaintiff indicates that “[i]t was sent by regular mail November 17, 2022.” Doc. No. 180, at 1.

• December 15, 2022: Judge Goldberg orders DCYS to respond with documents or objection within 7 days. Doc. No. 169.

• December 22, 2022: DCYS writes to Plaintiff via email indicating their objections. Doc. No. 177, Exhibit B.

• December 30, 2022: Plaintiff requests to extend the discovery deadline. Doc. No. 170. There, Plaintiff indicates that “[o]n December 15, 2022 the court ordered [DCYS] to provide records. The order was served and counsel for that entity responded and stated they were looking for the records. Rather than file a Motion, the records likely will arrive within the new requested period for discovery.” Id. at 1.

• December 30, 2022: Fact discovery ends. Doc. No. 165.

• January 3, 2023: Judge Goldberg denies the request to extend discovery. Doc. No. 174. The Order provides that DCYS “shall fully and completely respond to Plaintiff's subpoena or raise objections on or before January 13, 2023.” Id. at 1. The Order also provides that “Plaintiff's counsel shall serve a copy of this order upon [DCYS] and file a certificate of service on the docket.” Id.

• January 12, 2023: DCYS moves to quash the subpoena. Doc. No. 177.

• January 13, 2023: Plaintiff gets a new subpoena from the Clerk, with a return date of January 30, 2023. Doc. No. 180-2.

• January 18, 2023: Plaintiff receives proof of service. Doc. No. 180-3.

• January 25, 2023: Plaintiff responds to the motion to quash. Doc. No. 180.

I find that the Court's January 3^rd order concerning the subpoena extended the time to serve and respond to the subpoena, but Judge Goldberg declined to generally extend the time for discovery.

B. The Second Subpoena and The Motion to Quash Are Timely.

A motion to quash a subpoena is only timely if it is filed before the return date on the subpoena. City of St. Petersburg v. Total Containment, Inc., 2008 WL 1995298, at *2 (E.D. Pa. 2008) (Stengel, J.). Objections to a subpoena must also be timely. If the subpoenaed party objects to providing the recommended information based on a privilege, the objection must be made within fourteen days of service of the subpoena. In re Dep't of Just. Subpoenas to ABC, 263 F.R.D. 66, 69-70 (D. Mass. 2009) (citing to Fed.R.Civ.P. 45(c)(2)(B)). Rule 45(c)(2)(B) outlines the 14-day requirement. An objection based on privilege must “(i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Fed.R.Civ.P. 45(b)(2)(A)(i)-(ii).

A subpoena is properly served on a third-party when it is delivered to the named individual by a person who is at least 18 years old and not a party to the litigation in question. Fed.R.Civ.P. 45(b)(1). Serving a corporate entity requires serving an officer or agent of the corporation in the district where the corporation has had “sufficient contacts.” See International Shoe Co. v. Washington, 326 U.S. 310, 320-21 (1945). Service on a government entity follows the same requirements. See e.g., Ghandi v. Police Dep't of City of Detroit, 74 F.R.D. 115, 121 (E.D. Mich. 1977). Additionally, when the served entity is a third-party, personal service is required. Whitmer v. Lavida Charter, Inc., 1991 WL 256885, at *2 (E.D. Pa. Nov. 26, 1991) (Hutton, J.) (citing Wright & Miller, Fed. Prac. & Proc., § 2461 (1971)).

Some district courts in the Third Circuit have suggested that parties attempting to serve a subpoena may effect service via certified mail. See New Jersey Bldg. Laborers' Statewide Benefit Funds v. Gen. Civil Corp., Civil Action No. 08-6056, 2009 WL 2778313, at *2 (D.N.J. Sept. 1, 2009) (the Court did not find the third-party in contempt for failing to respond to the subpoena, because it was not properly executed, but found that, in certain occasions, certified mail may satisfy service requirements); but see Alfamodes Logistics L.L.C. v. Catalent Pharma. Solutions, LLC, 2011 WL 1542670, at * 1 (E.D. Pa. Apr. 25, 2011) (Pratter, J.) (approval of the use of certified mail is a minority position). I hold that “absent compelling circumstances that would justify a departure from the wider accepted interpretation of those courts in our circuit, circumstances which do not exist here, the generally-accepted interpretation will be employed.” Fiorentino v. Cabot Oil & Gas Corp., No. 3:09-CV-2284, 2012 WL 12861600, at *2 (M.D. Pa. Jan. 6, 2012) (quashing a subpoena that was not personally served on the named deponent). I find that the subpoena of November 17, 2022, was not properly served.

I also find that the court's order of January 3, 2023 intended to resolve the merits of the dispute over DCYS information rather than penalize technical non-compliance with the service rules. Doc. No. 174....