Serving

Subpoenas in Cases and Proceedings

Contributing Editor: Kenneth M. Misken McGuireWoods LLP; McLean, Va. kmisken@mcguirewoods.com Also Written by: Sarah Beckett Boehm McGuireWoods LLP; Richmond, Va. sboehm@mcguirewoods.com he attendance of a nonparty witness at a deposition or trial and the obligation of a nonparty witness to produce documents can only be compelled in accordance with Rule 45 of the Federal Rules of Civil Procedure and, in bankruptcy cases and proceedings, Rule 9016 of the Federal Rules of Bankruptcy Procedure. Bankruptcy Rule 9016 incorporates Federal Rule 45 verbatim, with no additions or modifications whatsoever. It has long been held that a defense to a contempt motion for failing to comply with a subpoena is to establish that the requirements of Rule 45 are not met.1 One of those requirements is proper service of the subpoena. This article will first analyze Rule 45 and how nonbankruptcy federal courts have determined what is required for proper service of a subpoena, then examine two bankruptcy court Kenneth M. Misken decisions analyzing this issue. Last, this article will analyze the Bankruptcy Rules, showing that in bankruptcy cases and proceedings, a party serving a subpoena on either an individual or corporation may have a powerful, inexpensive tool in Bankruptcy Rule 7004, which authorizes service of process by firstclass U.S. mail.

About the Authors

Kenneth Misken is counsel in the Restructuring and Insolvency Group at McGuireWoods LLP in McLean, Va. Sarah Beckett Boehm is counsel in the Restructuring and Insolvency Group at the firms Richmond, Va., office. tion of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party. There is no consensus on the proper standard of service of a subpoena among nonbankruptcy federal courts. Although the majority require personal service,2 the courts appear to provide no analysis as to why personal service is required. For example, in In re Johnson & Johnson,3 Johnson & Johnson served notices of depositions to three individuals, two of whom were officers for a corporation in which Johnson & Johnson was contest-

that have rejected the majority position and concluded that personal service is not necessary, but instead service is proper as long as the manner of service reasonably ensures receipt by the witness.7 There are a few bankruptcy cases analyzing whether personal service is required under Bankruptcy Rule 9016. In ONeil v. Robinson (In re Thomas Peter Sarah Beckett Boehm Pappas), 8 the issue was whether serving a subpoena on a corporations receptionist when no other member of the corporation was available to receive service constituted proper service on a corporation. In concluding that service was proper, the bankruptcy court explained that since Rule 45 does not specify what constitutes proper service on a corporation, courts have routinely looked to Rule 4 of

Bankruptcy Cases

Practice & Procedure

ing the issuance of trademarks. The three individuals were not named parties. The court held that since the subpoenas were issued to the individuals and not to the corporation, and the individuals were not personally served, the court lacked the power to compel the individuals to appear at depositions.4 Interestingly, and apparently relying on the plain language of Rule 45, the court stated that [u]nder Rule 45, personal service of a subpoena is required when an individual is subpoenaed.5 No further analysis on the service issue was provided. Other courts have concluded that the personal-service requirement as outlined by the majority of courts does not apply to corporations since the plain language of Rule 45 only references individuals.6 However, there is an emerging minority
2 3 4 5 6 James Wm. Moore, Moores Federal Practice 3d, 45.21 (2011) 59 F.R.D. 174, 177 (D. Del. 1973). Id. at 177-78. Id. at 177. See, e.g., Ultradent Prods. Inc. v. Hayman, 2002 U.S. Dist. LEXIS 18000, 2020 WL 31119425, at *3 (S.D.N.Y. Sept. 24, 2002) (service of subpoena on registered agent of corporation or by certified mail satisfies Rule 45); see also In re Motorsports Merchandise Antitrust Litigation, 186 F.R.D. 344 (W.D. Va. 1999) (explaining that although Rule 45 is silent as to what constitutes proper service of subpoena on corporation, courts look to Rule 4 for guidance).

Rule 45

Rule 45(b)(1) of the Federal Rules of Civil Procedure provides that [a]ny person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that persons attendance, tendering the fees for 1 days attendance and the mileage allowed by law.... If the subpoena commands the produc1 See, e.g., Doble v. U.S. District Court, 249 F.2d 734 (9th Cir. 1957).

the Federal Rules of Civil Procedure for guidance.9 The court, looking at the service requirements under Connecticut state law, found that Connecticut law allows for service on a person in charge of the office of a corporation.10 Since the corporation produced no evidence to show that the receptionist was not in charge of the office, the court concluded that service was proper under Connecticut law and the federal rules. Notably, the court did not analyze whether personal service upon an individual was required. More recently, the U.S. Bankruptcy Court for the Southern District of Florida in In re Falcon Air Express Inc.11 analyzed whether personal service of a sub7 See, e.g., King v. Crown Plastering Corp., 170 F.R.D. 355 (E.D.N.Y. 1997). 8 214 B.R. 84 (Bankr. D. Conn. 1997). 9 Id. at 85 (citing Khachikian v. BASF Corp., 1994 U.S. Dist. LEXIS 2881, 1994 WL 86702 (N.D.N.Y. 1994); In re Grand Jury Subpoenas, 775 F.2d 43, 46 (2d Cir. 1985)). Rule 4 of the Federal Rules of Civil Procedure provides that service on corporations may be effected [i]n a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. Rule 4(e)(1) provides that service in any judicial district of the U.S. may be effected pursuant to the law of the state in which...service is effected. 10 ONeil v. Robinson, 214 B.R. at 85-86 (citing Conn. Gen. Stat. 52-57(c)). 11 Case No. 06-11877, 2008 Bankr. LEXIS 1463 (Bankr. S.D. Fla. May 8, 2008).

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ABI Journal

Practice & Procedure: Serving Subpoenas in Cases and Proceedings

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poena was required. The attorney for the trustee issued and signed a subpoena duces tecum for a Rule 2004 examination on an individual. Service was effectuated by serving the individuals wife at a residence owned by the individual. The individual filed a motion to quash the subpoena arguing that the trustee failed to personally serve him and, therefore, service was improper. The issue before the court was whether this type of substitute service satisfied the service requirement under Bankruptcy Rule 9016. Ultimately, the court held that substitute service was authorized and denied the motion to quash.12 The court acknowledged that the majority view interpreting Rule 45 required personal service, but instead chose to adopt the better reasoned, modern, emerging minority position, which holds that substitute service of a subpoena is effective on a nonparty witness under Rule 45.13 Unlike the many cases following the majority view, the Falcon Air court laid out a rather detailed analysis explaining why the emerging minority view was the better-reasoned approach. First, the court looked to the plain text of Rule 4514 and recognized that there is nothing in the language that requires personal service nor is there any reference to personal service.15 Instead, Rule 45 merely requires that a copy of the subpoena be delivered to the person whose attendance or production of documents is demanded. The court then explained that the disagreement over the standard for proper service most likely arose from the ambiguous word deliver in Rule 45,16 but the court looked to the plain language of Rule 45(b)(3), which requires that [p]roving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of persons served.17 If Rule 45(b) only allowed for personal service, then the statement regarding the manner of service in (b)(3) would be superfluous.18 Moreover, the court looked at Rule 4(e)(2)(A), which requires the plaintiff
12 Id. at *12. 13 Id. at *4. 14 Id. at *4 (citing Gonzalez v. McNary, 980 F-2d 1418, 1420 (11th Cir. 1993) (As a matter of statutory interpretation, the query must begin by looking at the plain language of the statute.). 15 Id. at *4. 16 Id. at *4 (citing Tubar v. Clift, 2007 U.S. Dist. LEXIS 5674, 2007WL 214260 (W.D. Wash. 2007)). 17 Id. at *7 (emphasis added). 18 Id. at *8 (citing Bank of Oklahoma NA v. Arnold, 2008 U.S. Dist. (Exs 12677, 2008 WL 482860) (N.D. Okla. 2008)).

to deliver...a copy of the summons and of the complaint personally. The court explained that if Rule 45 required personal service, then the word personally in Rule 4(e)(2)(A) would also be superfluous.19 The individual moving to quash the subpoena relied on two cases to support his argument that personal service of a subpoena was required: Klockner Namasco Holdings Corp. v. DailyAccess. com20 and Harrison v. Praltner.21 The court explained that those decisions did not provide any analysis as to why personal service of a subpoena is required. In fact, Harrison was not on point, since the Harrison court only concluded that service on a partys counsel was not effective service. Since Klockner predominantly relied on Harrison in concluding that personal service is required, the court found those two cases inappropriate and unpersuasive.22 The court denied the motion to quash, but reserved the issue of whether the substitute service on the movant was effective, looking at the facts of the case to determine whether substitute service was reasonably calculated to ensure receipt of the subpoena.23

Bankruptcy Rules

The Falcon Air court did not analyze the Bankruptcy Rules. However, in bankruptcy cases and proceedings, it appears that the Bankruptcy Rules allow for service of a subpoena in accordance with Bankruptcy Rule 7004. Bankruptcy Rule 9016 incorporates Rule 45 into bankruptcy cases and proceedings verbatim without any modifications or additions. Similar to Rule 1 of the Federal Rules of Civil Procedure, Bankruptcy Rule 1001 requires the Bankruptcy Rules to be construed to secure the just, speedy and inexpensive determination of every case and proceeding. Unlike the Federal Rules, Bankruptcy Rule 7004(b), provides that in addition to the methods of service authorized by Rule 4(e)-(j) F.R. Civ. P., service may be made within the United States by first class mail postage prepaid as follows: (1) Upon an individual other than an infant or incompetent, by mailing
19 Fed. Rule Civ. Pro. 4(e)(2)(A) (emphasis added). 20 404 F.2d 267 (5th Cir. 1968). 21 211 F.R.D. 685 (N.D. Ga. 2002). 22 404 F.2d 267 (5th Cir. 1968); 2008 Bankr LEXIS *10. 23 In re Falcon Air Express Inc., 2008 Bankr. LEXIS 1463, at *12.

a copy of the summons and complaint to the individuals dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession ... (3) Upon a domestic or foreign corporation... by mailing a copy of the summons and complaint to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. By allowing service of the summons and complaint by mail, Bankruptcy Rule 7004 aids in the policy outlined in Bankruptcy Rule 1001 to provide for the just, speedy and determination of even case and proceeding. Unfortunately, nationwide service of process as allowed in Bankruptcy Rule 7004 is inapplicable to serving subpoenas. In fact, Bankruptcy Rule 7004(d) explicitly provides that [t]he summons and complaint and all other process except a subpoena may be served anywhere in the United States.24 Clearly, the drafters of the Bankruptcy Rules considered a subpoena to be other process. Since Bankruptcy Rule 7004 outlines how process is to be served, it should be the key for serving subpoenas in bankruptcy cases and proceedings. Otherwise, the language except a subpoena in Bankruptcy Rule 7004(d) would be surplusage.

Conclusion

Courts following the emerging minority position have focused on the plain language of Rule 45 and concluded that Rule 45 does not require personal service. On the other hand, the majority view relies on the language in Rule 4. In bankruptcy cases and proceedings, bankruptcy practitioners have a powerful tool in Bankruptcy Rule 7004, but they must remember the exception to nationwide service of process for a subpoena. Regardless of the minority or majority views that the nonbankruptcy federal courts follow in your jurisdiction, in bankruptcy cases and proceedings, service of a subpoena should be consistent with Bankruptcy Rule 7004. n
24 Emphasis added.

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