Opinion
99 Civ. 9623 (RWS).
May 10, 2006
MEMORANDUM OPINION
Plaintiffs Briarpatch Limited, L.P. and Gerard F. Rubin have moved this Court for leave to permit alternative service of process of a subpoena duces tecum on non-party witness Terrence Malick ("Malick") by service to him care of his business manager Henry Bamberger ("Bamberger") of Bamberger Business Management. Defendants Phoenix Pictures, Inc. and Morris "Mike" Medavoy (collectively "Phoenix") filed opposition to the motion. The motion was heard and marked fully submitted on March 8, 2006. For the reasons set forth below, the motion is denied.
Plaintiffs have filed this motion because, according to them, Malick is an important fact witness as to disputed factual issues in this case, but despite diligent efforts on Plaintiffs part, Plaintiffs have been unable to locate and serve Malick with a civil subpoena. Malick is allegedly a recluse who refuses to disclose his address or telephone number. Following several failed attempts to locate and serve Malick over the past several months, Plaintiffs have requested that this Court permit them to serve Malick care of his business manager.
In support of their motion, Plaintiffs contend that alternative service is necessary to prevent substantial prejudice that will befall them if they do not get an opportunity to depose Malick.
Rule 45(b) (1), Fed.R.Civ.P., provides that "service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person. . . ." Many courts have interpreted the language of Rule 45 as authorizing only personal service. See, e.g., Agran v. City of New York, No. 95 Civ. 2170 (JFK), 1997 U.S. Dist. LEXIS 2577, *3, 1997 WL 107452, at *1 (S.D.N.Y. 1997) ("the weight of authority is that a subpoena duces tecum must be served personally" and "the Court is without authority to sanction an alternative form of service"). Wright Miller state the following with respect to service of a subpoena on an individual third-party:
Personal service of subpoenas is required. The use of the word 'delivering' in the rule with reference to the person to be served has been construed literally. Contrary to the practice with regard to the service of a summons and complaint, it is not sufficient to leave a copy of the subpoena at the dwelling place of the witness. Moreover, unlike service of most papers after the summons and complaint, service on a person's lawyer will not suffice.
9A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2454 (2d ed. 1994).
As both parties point out, a minority of courts, including some within the Second Circuit, have authorized constructive service of a civil subpoena, similar to that permitted under Rule 4, Fed.R.Civ.P. See, e.g., First City Texas Houston, N.A. v. Rafidain Bank, 281 F.3d 48 (2d Cir. 2002) (upholding service of subpoena by attaching a copy to the door and mailing a copy to witness' counsel); Ultradent Products, Inc. v. Hayman, 2002 U.S. Dist. LEXIS 18000, at *7 (S.D.N.Y. Sept. 24, 2002) (permitting service of subpoena upon the Secretary of State as the designated agent of the corporation pursuant to New York procedural law); Cordius Trust v. Kummerfeld, 99 Civ. 3200 (DLC), 1999 U.S. Dist. LEXIS 19980, *3 (S.D.N.Y. Jan. 3, 2000) (granting application for service of subpoena duces tecum upon third party witness by certified mail); King v. Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y. 1997) (upholding service of subpoena by mail to third party witness' home and delivery to witness' counsel in another matter).
Plaintiffs cite King, 170 F.R.D. at 356, for the proposition that the language of Rule 45(b)(1) "neither requires in-hand service nor prohibits alternative means of service." In King, the Court held that service of a non-party civil subpoena pursuant to Rule 45 need not be "in person," as suggested by Rule 45's language. Fed.R.Civ.P. 45(b)(1) ("service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person . . ." (emphasis added)). The Court inKing reasoned that "under modern New York procedural law even so-called 'personal service' can be made other than by delivery in hand simply by delivery to a person of suitable age and discretion at the residential address coupled with mailing to the residential address." King, 170 F.R.D. at 356 (citing N.Y.C.P.L.R. 308(2)). Applying this reasoning to the facts confronted in King, the Court there concluded that service was properly made by mailing the subpoena to the deponent's home and personally delivering a copy of the subpoena to his counsel in another matter.
Plaintiffs' reliance on the analysis in King is misplaced. Assuming arguendo that the minority reasoning were persuasive, that reasoning would not extend to service on a business manager under the circumstances presented here. King and the other cases relied upon by Plaintiffs do not hold that service may be effectuated in any manner when the circumstances warrant it. Rather, these cases stand for the proposition that "any means of service in accordance with New York procedural law should be sufficient to satisfy Rule 45 requirements." Ultradent Products, Inc. v. Hayman, 2002 U.S. Dist. LEXIS 18000, at *7 (S.D.N.Y. Sept. 24, 2002) (citing King, 170 F.R.D. at 356 n. 1). In other words, each of the cases in which the minority position was applied involved the authorization of alternative service that would have been permitted under Fed.R.Civ.P. 4. The constructive service methods provided for under procedural law do not include service upon an individual's business manager, and the Court sees no justifiable grounds for extending service in this manner here.
Furthermore, all of cases that have permitted alternative service have also emphasized that such service was sufficient only because the alternative manner employed was reasonably calculated to provide timely notice to the third party witness.First Nationwide Bank v. Shur, 184 B.R. 640, 642 (E.D.N.Y. 1995) ("'delivering' a copy of a subpoena, for the purposes of Rule 45 includes any act or series of acts that reasonably assures the entity to which it is addressed fair and timely notice of its issuance, contents, purpose and effect");; see also Ultradent, 2002 U.S. Dist. LEXIS 18000, at *9-10 ("Service of a subpoena upon the Secretary of State as the designated agent to a corporation is reasonably measured to insure the actual receipt of the subpoena by the corporation.").
Here, Briarpatch has proposed service of the subpoena upon Malick's self-proclaimed business manager. While Bamberger's assertions that he keeps the books, writes checks, and prepares tax returns for Malick may suggest that he has some contact with Malick, it does not indicate that he has regular contact sufficient to inform Malick of the proposed subpoena in a timely manner. This is particularly so, given the reclusiveness and evasiveness with which Malick has been characterized by Plaintiffs.
For the reasons set forth above, the motion for alternative service of a subpoena duces tecum on non-party witness Malick by service to him care of his business manager is denied.
It is so ordered.