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In re Miscellaneous Subpoenas

United States District Court, D. South Dakota, Central Division

August 1, 2016

In Re Miscellaneous Subpoenas

          ORDER GRANTING MOTION TO QUASH ON BEHALF OF NON-PARTIES WESTERN SKY FINANCIAL, LLC, AND MARTIN A. WEBB

          MARK A. MORENO UNITED STATES MAGISTRATE JUDGE

         A non-party tribal company and its registered agent (a tribal member) moved to quash document and deposition subpoenas issued to them that a private overnight courier dropped off at the doorstep of a building located on a South Dakota Indian Reservation. Because the subpoenas were not properly served under Federal Rule 45(b) and the case law of this Circuit and District, the motion is granted and the subpoenas are quashed.

         BACKGROUND

         Non-Parties, Western Sky Financial, LLC ("Western Sky") and Martin A. Webb ("Webb"), the latter as the registered agent for Western Sky and as an individual, have moved to quash three separate subpoenas simultaneously issued to Western Sky and Webb in a case venued in the Eastern District of Virginia, Hayes, et al. v. Delbert Services Corporation, Case No. 3:14-cv-258. The subpoenas command Webb, as Western Sky's agent and individually, to testify at a deposition and to produce documents and other information. Western Sky and Webb assert that the subpoenas were improperly served and that compliance with them would subject Western Sky and Webb to undue burden and extraordinary expense.

         DISCUSSION

         A. Service

         None of the subpoenas were delivered by personal service. Rather, they were sent by Federal Express in document-size envelopes labeled "Priority Overnight." Webb's personal bookkeeper found the envelopes on. the front steps to a building situated within the Cheyenne River Sioux Tribe (CRST) Reservation, approximately 40 miles from Webb's home. The envelopes did not require a signature and, when discovered, were partially opened and the contents were wet. To date, no one has attempted to personally serve Webb either individually or on behalf of Western Sky.

         Western Sky and Webb maintain service was invalid under both federal and tribal law. They contend that Plaintiffs, the issuing party, made no effort to ensure that the subpoenas were placed in Webb's possession or control. And Western Sky and Webb say that personal, in hand, service was required and that drop off delivery, by a Federal Express courier, was legally insufficient.

         1. The Federal Rule

         Rule 45 of the Federal Rules of Civil Procedure addresses the service "requirement" and provides that "serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law."[1] The Rule, however, does not define what "delivery" means.

         The "long-standing interpretation" of Rule 45 has been personal service of subpoenas is required.[2] Under this interpretation, the word "delivering" in subdivision (b)(1) of the Rule has been construed literally.[3] The Eighth Circuit has held a subpoena sent by facsimile (fax) and by regular mail did not comply with the "delivery" requirements of Rule 45(b)(1).[4] Although not altogether clear, the appeals court appears to have followed the majority rule which requires personal service for a non-party subpoena.[5] But the Court hinted that it might accept some method of service, other than personal delivery, if the method was one that ensured the subpoena was placed in the actual possession or control of the person served.[6]

         In recent years, a growing number of courts have departed from the view that personal service is required and held that personal service is not required.[7] This emerging minority position has been embraced by a number of courts and used to uphold the service of a subpoena via Federal Express delivery.[8] Nevertheless, Rule 45 has been amended several times since 2000 (in 2005, 2006, 2007 and 2013) when most of these "minority" decisions were handed down, but notably, the revisors did not expand the methods of service.[9]

         Given the law of this Circuit and District, the Court is constrained to grant Western Sky and Webb's motion to quash because the subpoenas were not personally served and because the method of service used was not one that would ensure that the subpoenas would be placed in their actual possession or control.[10] The Court though believes that the wisdom of the majority (personal service) view should be reexamined in light of the actual language of the Rule itself, Rules 1 and 4 and simple logic.

         Often overlooked, Rule 1 requires that the Rules of Civil Procedure be "construed and administered to secure the just, speedy and inexpensive determination of every action."[11] Mandating that delivery of a subpoena by personal service, even when the party served has not denied receiving the subpoena and has had an opportunity to protect its interests, "would only serve to torture the rules and drive up the expense of litigation" - a result that would contravene the Rule's directives.[12]

         More importantly, nothing in the language of Rule 45 indicates that personal service is required to effectuate "delivery" or that service by some other means - such as certified mail or Federal Express delivery - is prohibited.[13] Instead, the Rule requires only that a subpoena be delivered to the person served by a qualified individual (i.e., someone that is at least 18 years of age and not a party to the case). Delivery is merely "the act by which the res or substance thereof is placed within the actual possession or control of another."[14]

         Beyond this, Rule 4 provides additional support for the conclusion that Rule 45 does not command that there be personal, in hand, service of a subpoena. The former states in relevant part, that an individual. . . may be served in a judicial district of the United States by delivering a copy of the summons and complaint to the individual personally. . . ."[15] As the Rule makes clear, when the drafters of the Federal Rules wanted to require "personal service" of a pleading, they were able to do so unambiguously.[16] By contrast, in Rule 45, the drafters merely provided that the subpoena be "deliver[ed] ... to the named person."[17] Reading the word "personally" into Rule 45 would render that same word - used in Rule 4(e)(2)(A) - "surplusage, " a practice inconsistent with well-accepted rules of statutory interpretation.[18] The drafters thus knew how to express a personal service requirement in a rule of civil procedure and chose not to do so when they wrote, and thereafter amended, Rule 45.

         Lastly, there is no policy reason, the Court can find or think of, that would justify other forms of service for a summons and complaint but not for a subpoena. It makes no sense to allow a person to be sued, and put at risk for personal liability, on less than personal service and yet require such service for a discovery or trial subpoena. The objective should be to, assure appropriate notice to the person subpoenaed and afford that person an opportunity to challenge the subpoena without saddling the discovering party with a burdensome and expensive service requirement.

         Significantly, permitting service of a subpoena by some lesser but effective means in no way prejudices the non-party being served. As long as that party receives the subpoena, it should be able to avail itself of the procedural protections of Rule 45(d) in the same manner as it would if personally served.

         Despite the conclusory holding of a majority of courts and the lack of appreciation that the real purpose of Rule 45(b) is to provide effective notice to the subpoenaed party, rather than to demand adherence to one particular type of service, established precedent requires that the Court, in this case, quash the subpoenas Webb ultimately received via Federal Express delivery from his bookkeeper.[19] The Court does this with some reluctance but with the hope that the personal service rule will, in the near future, be audited and modified to comport with the plain language of Rule 45.[20]

         2. The Tribal Rule

         The underlying case is a federal court proceeding; not a tribal one: So the Federal Rules of Civil Procedure, and in particular, Rule 45, govern - not CRST's civil rules.[21]

         And immunity from process does not' apply to individual tribal members[22] or business entities[23] like Webb and Western Sky. For there to be immunity, a member or entity must function as an arm of the tribal government and in a governmental role, not simply as the agent of a commercial entity that happens to be located within the exterior boundaries of an Indian reservation and run by a tribe or its members.[24] No showing has been made that Western Sky and Webb ...


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