McNamara et al v. Government Employees Insurance Company

Filing 252

ORDER denying 240 Motion to Quash. For the reasons states herein, Lisa Bowen's Motion to Quash Subpoena for Trial or, in the Alternative, Motion for Protective Order is hereby denied. See Order for further details. Signed by Magistrate Judge Anthony E. Porcelli on 4/12/2024. (KBP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ERIKA L. MCNAMARA and
WILLARD F. WARREN,
Plaintiff,
v.

Case No. 8:17-cv-03060-SDM-AEP

GOVERNMENT EMPLOYEES
INSURANCE COMPANY,
Defendants.
/
ORDER
This matter comes before the Court upon nonparty witness Lisha Bowen’s
Motion to Quash Subpoena for Trial (Doc. 240) and Defendant’s Response to same
(Doc. 249). By way of motion, Ms. Bowen seeks on Order from this Court quashing
a trial subpoena served upon her for improper service, or in the alterative, an Order
protecting her from appearing as a witness at a trial set to commence in one business
day. Having reviewed the filings and heard argument on the matter, this Court finds
that any service errors have been corrected, and Ms. Bowen has failed to establish
that testifying at this matter’s trial would cause an undue burden. Accordingly, for
the reasons stated below and those given at the hearing, the motion is denied.
I.

Background
The present action is a bad faith action brought by Plaintiffs against their

insurance carrier, Defendant Government Employees Insurance Company
(“GEICO”), for an alleged improper handling of a bodily injury claim brought

against Plaintiffs by Kenneth Bennett as guardian of Deborah Lambert. (Doc. 2). In
the underlying personal injury action, nonparty Lisa Bowen, Esq. served as counsel
for Mr. Bennett. (Doc. 240, ¶ 3). As part of its defense in this action, GEICO alleges
that it was unable to settle the personal injury claim against Plaintiffs because Mr.
Bennett and his counsel were unwilling to settle within Plaintiffs’ $100,000 policy
limits. (Doc. 249, ¶ 3). Accordingly, Ms. Bowen was deposed in this matter on
August 2, 2018, and as the case proceeded to trial served with a trial subpoena via
a FedEx to her residential address on March 12, 2024. (Doc. 249-1; Doc. 249-2).
Included with the subpoena was a letter from defense counsel informing Ms. Bowen
that the trial was scheduled to commence on April 15, 2024, and requesting that she
remain available. (Doc. 249-2). Ms. Bowen does not contest that this subpoena was
received.
On March 13, 2023, a second trial subpoena was furnished to Ms. Bowen
via a process server. In the Return of Service, the process server attested that he had
served Ms. Bowen in person at her residence. (Doc. 240-1). Ms. Bowen, however,
alleges that this was false. (Doc. 240, ¶¶ 8, 11–13). She instead recounts that “at
some point after March 18, 2024” she was contacted by her building’s manager,
Glenda Butler, who informed Ms. Bowen that a “legal paper” referencing Ms.
Bowen had been found on a countertop in the building’s mailroom. (Doc. 240, ¶ 8;
Doc. 240-2). On March 26, 2024, Ms. Bowen contacted defense counsel for the first
time regarding the second subpoena but stated only that she “had some issues with
the effectiveness of service” and “w[ould] be out of the country for the trial period.”

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(Doc. 249-4). From March 26, 2024, through April 8, 2024, Ms. Bowen offered no
further explanation as to her belief service was improper or the details of her alleged
trip. On April 9, 2024, Ms. Bowen informed defense counsel via a telephone call
that she believed she had not been properly served because: 1) service was not made
on her personally and 2) the subpoena did not include a witness fee/mileage fee
check. (Doc. 240, ¶ 15; Doc. 249, ¶ 10). Shortly thereafter, Ms. Bowen booked a
flight to Scotland where she presented from for this matter’s hearing on April 12,
2024. Defense counsel alleges that it had no knowledge the subpoena did not
contain a fee check until Ms. Bowen’s April 9 declaration, believing it had been
delivered with the subpoena served by its service company, Veritext. Accordingly,
on April 9, 2024, a third subpoena with an accompanying fee check was sent via
FedEx to Ms. Bowen’s residential address and delivered on April 10, 2024.
II.

Legal Analysis
Under Federal Rule of Civil Procedure 45, to effectively serve a trial

subpoena, the requesting party must “deliver[] a copy to the named person and, if
the subpoena requires that person's attendance, tender[] the fees for 1 day's
attendance and the mileage allowed by law.” Fed. R. Civ. P. 45(a)(1). Where service
has been properly executed, a district court must quash or modify a subpoena only
where the subpoena: 1) fails to allow a reasonable time to comply; 2) requires a
person to comply beyond the geographical limits specified in Rule 45(c); 3) requires
disclosure or privileges of protected matter not subject to expected; or 4) subjects a
person to an undue burden. Fed. R. Civ. P. 45(d)(3).

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a. Personal Service
The majority position in the Eleventh Circuit is that personal service is not
required by Rule 45. See Saadi v. Maroun, No. 8:07-CV-1976-SCB-JSS, 2021 WL
8650800 (M.D. Fla. Mar. 22, 2021) (providing an extensive list of cases supporting
same). Instead, the key inquiry is whether service was “reasonably calculated to
ensure receipt of the subpoena by the witness.” TracFone Wireless, Inc. v. SCS Supply
Chain LLC, 330 F.R.D. 613, 616 (S.D. Fla. 2019). Thus, service upon Ms. Bowen
cannot be rendered improper simply because the subpoena was not handed directly
to her, irrespective of any dispute concerning same. Ms. Bowen does not deny that
both the March 12 FedEx subpoena and the March 13 Veritext subpoena were
received by her. One’s designated outlet for collecting mail is a place “reasonably
calculated to ensure receipt of the subpoena by the witness.” Codrington v. AnheuserBusch, Inc., No. 98-2417-CIV-T-26F, 1999 WL 1043861 (M.D. Fla. Oct. 15, 1999)
(finding service made via certified mail to be a valid means of service under Rule
45). Moreover, by virtue of Ms. Bowen’s motion, it is clear she received a subpoena
and had advance notice of this matter’s trial date. Accordingly, the Court does not
find merit in Ms. Bowen’s argument that service was improper for failing to deliver
a subpoena to her personally.
b. Witness Fee
No party in this matter disputes that Rule 45 requires that a witness
fee/mileage fee check accompany a trial subpoena to compel attendance. However,
failure to do so on account of a technical error does not preclude remedy. Here,

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immediately upon learning of the error, defense counsel issued a new subpoena with
a witness fee/mileage fee check included therein to Ms. Bowen’s residential address
via FedEx which was delivered on April 10, 2024. (Doc. 249-7). Thus, the Court is
satisfied that service has been perfected. In advocating that the Court quash
Defendant’s subpoena, Ms. Bowen cites to Wood v. Progressive Select Insurance
Company where the Southern District quashed two nonparty trial subpoenas for
failing to include a check for fees with service. No. 21-14172-CIV, 2022 WL
16714191, at *2 (S.D. Fla. Nov. 4, 2022). However, in Wood, the nonparties’
subpoenas were quashed without prejudice and their motions for protective orders
denied to allow Plaintiffs the opportunity to perfect service. Here, service has been
perfected. Accordingly, Ms. Bowen’s argument concerning service fails on this
point as while.
c. Undue Burden
Finally, Ms. Bowen argues that the subpoena should be quashed or a
protective order entered as testifying a trial will place an undue burden on her due
to her “preplanned international travel.” “The undue burden analysis requires the
court to balance the interests served by demanding compliance with the subpoena
against the interests furthered by quashing it.” Jordan v. Comm'r, Mississippi Dep't of
Corr., 947 F.3d 1322 (11th Cir. 2020) (internal citations and quotations omitted).
Notably, Ms. Bowen’s motion does not provide any detail concerning the reason
for her travel or the preparation undertaken in furtherance of same. However, at
this matter’s Zoom hearing, Ms. Bowen, appearing from Scotland, admitted that

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she had not booked flights or reserved lodging for her trip to Scotland prior to being
in physical possession of the subpoena informing her she needed to be available for
trial. In fact, Ms. Bowen did not purchase anything for her Scotland trip until well
into April 2024. Accordingly, this Court does not find that Ms. Bowen’s decision to
travel to Scotland establishes a legitimate hurdle to her presentation at trial such
that the protections of this Court are warranted. Despite having been in possession
of the subpoena for weeks, Ms. Bowen waited until three (3) business days before
trial to inform defense counsel of the missing check and (2) business days before
trial to seek relief from this Court.
Moreover, though Ms. Bowen may characterize herself as a “minor witness”
in this matter, as succinctly stated by defense counsel, “M[]s. Bowen’s testimony at
trial is critical to GEICO’s defense because it goes directly to the issue of Mr.
Bennett’s unwillingness to settle and whether because of that unwillingness GEICO
was deprived of a realistic opportunity to settle,” the key inquiry in bad faith
litigation. (Doc. 249, p. 18). Thus, the Court finds that the burden Ms. Bowen will
face does not outweigh the relevance and importance of her testimony. See Action
Nissan, Inc. v. Hyundai Motor Am., No. 6:18-CV-380-WWB-EJK, 2021 WL 8946139,
at *2 (M.D. Fla. July 7, 2021) (finding that a preplanned vacation was insufficient
to establish an undue burden for trial presentation where the nonparty’s testimony
would have a direct impact on the litigation).

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III.

Conclusion

Accordingly, for the reasons stated herein and at the hearing, it is hereby
ORDERED:
1. Lisa Bowen’s Motion to Quash Subpoena for Trial or, in the Alternative,
Motion for Protective Order (Doc. 240) is DENIED.
DONE AND ORDERED in Tampa, Florida, on this 12th day of April 2024.

cc:

Counsel of Record
Lisa Bowen

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