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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Lee Michael Beitman,

Plaintiff,

v. 

S. Herrick, et al.,

Defendants.

No. CV-17-08229-PCT-JAT

ORDER 

Pending before the Court are Plaintiff’s “Motion to Extend Deadline for Completed 

Trial Subpoena Rule 60(b)” (Doc. 234) and “Motion to Serve Subpoena on David 

Robertson, DO” (Doc. 235) and Defendant Herrick’s Motion to Strike Plaintiff’s Doc. 235 

(Doc. 239).

The Final Pretrial Order set forth Plaintiff’s deadline to return completed trial 

subpoenas as January 18, 2022. (Doc. 209 at 1). On January 25, 2022, Plaintiff filed the 

present Motions, requesting an extension of that deadline to January 31, 2022, based on his 

mistaken miscalculation of the correct deadline. (Doc. 234 at 1). 

In response, Defendant Herrick filed a Motion to Strike Doc. 235 under Local Rule 

7.2(m), arguing that his Motion should be stricken because Plaintiff has not completed a 

trial subpoena and his motion for service is untimely by two weeks. (Doc. 239 at 3–4).

Defendant argues that she has suffered “substantial prejudice” by the last-minute notice of 

Plaintiff’s intent to call a physician witness two days prior to the joint proposed pretrial 

order deadline. (Id. at 4). 

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1/31/22 – but he gets the benefit of the mailbox rule, so his document was effectively filed 

on Jan. 25.

In the interest of efficiency and fairness, the Court will grant Plaintiff’s extension 

and deems the “Motion to Serve Subpoena on David Robertson, DO” as timely filed. 

While Defendant contends that Plaintiff filed his Motions two weeks after the 

deadline, the Court finds that his filings are only one week late. Because Plaintiff is 

incarcerated, he gets the benefit of the “prisoner mailbox rule.” As such, his effective filing 

date of his Motions is the date the filings were provided to prison officials for mailing—in 

this case January 25, 2022. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). And 

although Defendant argues that Plaintiff did not “submit anything resembling a trial 

subpoena,” Plaintiff attached a proper subpoena and Form USM-285 to his Motion to Serve 

the Subpoena. (Doc. 235-1). Moreover, to the extent that Defendant argues that Plaintiff 

was “required to move for the issuance of blank subpoena forms no later than December 

15, 2021” to give Defendant notice of his witnesses, the Court’s requirement regarding the 

deadline to request forms was not for the purpose of providing Defendant with knowledge 

of Plaintiff’s witnesses. Instead, the deadline is to ensure that the subpoenas get issued in 

time for the witnesses to appear at trial. Indeed, the December 15 deadline only required 

that Plaintiff ask for a specific number of forms, not to disclose the names of his witnesses.

Nothing in the Order required Plaintiff to seek the forms from the Court if he chooses to 

get them another way.

Finally, Defendant Herrick’s claims that she has already been prejudiced by 

Plaintiff’s untimely subpoena notice are unavailing. As Defendant Herrick noted, however, 

“District Courts have inherent power to control their dockets.” Thompson v. Hous. Auth. 

Of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). Balancing the prejudice of both 

parties, the Court finds that Plaintiff will be substantially more prejudiced than Defendant 

if he is unable to present witness testimony at trial as a sanction for filing his motion and 

subpoena one-week late based merely on his inadvertent mistake.

1 See Fink v. Gomez, 239 

1 The Court does note Defendant’s concern that Plaintiff will attempt to use Dr. Robertson 

as an expert witness without having disclosed him during expert discovery deadlines. (Doc. 

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F.3d 989, 993 (9th Cir. 2001) (finding that a district court’s inherent power sanctions 

require the litigant to act with an improper purpose or in bad faith).

Accordingly,

IT IS ORDERED that Plaintiff’s “Motion to Extend Deadline for Completed Trial 

Subpoena Rule 60(b)” (Doc. 234) is granted. Defendant Herrick’s Motion to Strike Doc. 

235 (Doc. 239) is denied.

IT IS FURTHER ORDERED that Defendants’ file any substantive response to 

Plaintiff’s “Motion to Serve Subpoena on David Robertson, DO” (Doc. 235) within the 

time prescribed by the Local Rules. 

IT IS FURTHER ORDERED that Plaintiff’s reply to any response by Defendants 

be filed within seven (7) days of service of that response on Plaintiff. 

Dated this 2

nd day of February, 2022.

239 at 2). Because Dr. Robertson was not disclosed as an expert witness prior to the 

deadlines in this Court’s Scheduling Order, Plaintiff should anticipate that Dr. Robertson 

be able to testify in his capacity as a fact witness only.

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