Ross v. Jenkins et al
Filing
219
MEMORANDUM AND ORDER denying 112 plaintiff Kendra Ross's Motion for Order to Show Cause. Signed by District Judge Daniel D. Crabtree on 07/31/2019. (tvn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENDRA ROSS,
Plaintiff,
Case No. 17-2547-DDC-TJJ
v.
ROYALL JENKINS, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on plaintiff Kendra Ross’s Motion for Order to Show
Cause (Doc. 112). In it, plaintiff asserts that several individuals have failed to comply with or
otherwise respond to subpoenas issued in October 2018. The court entered an Order on January
4, 2019, explaining that it had reservations about the service of those subpoenas and directing
plaintiff to file supplemental briefing about the issue. Doc. 131. Plaintiff complied. Doc. 141.
And, on January 25, 2019, the court held a hearing on several motions, including plaintiff’s
Motion for Order to Show Cause. Docs. 157, 178. For reasons explained below, the court
denies plaintiff’s motion without prejudice.
I.
Background
In her motion, plaintiff explains that she has tried to serve subpoenas on Atif Abdel-
Khaliq, Marvin McIntosh, Ephraim Woods, and Griegory Moten. But, she asserts, these
individuals neither complied with nor responded to those subpoenas. So, plaintiff moved the
court for an order to show cause why the court shouldn’t hold those four individuals in civil
contempt. Mr. Moten, Mr. Woods, and Mr. McIntosh responded to plaintiff’s motion. Docs.
114, 115, & 116. And, Mr. Woods, Mr. Moten, Mr. McIntosh, and Dana Peach—whom plaintiff
served with a subpoena duces tecum—filed responses to plaintiff’s supplemental briefing about
the service of process issue that the court identified. Docs. 145, 146, 147, & 148.
At the January 25 hearing, Mr. Moten, Mr. McIntosh, Mr. Woods, Mr. Abdel-Khaliq, and
Ms. Peach appeared. Plaintiff clarified that her motion applied only to Mr. Moten, Mr.
McIntosh, Mr. Woods, and Mr. Abdel-Khaliq. But, each of them asserted that either they hadn’t
received plaintiff’s subpoena or that plaintiff had not served it properly. Doc. 157 at 27 (Tr.
26:25–27:10), 32 (Tr. 31:23–32:2), 39 (Tr. 39:2–9), 40 (Tr. 40:14–20). Also, the subpoena
targets confirmed that they had not responded to the subpoenas.
After hearing arguments from plaintiff and the subpoenaed individuals, the court
concluded that “delivering a copy [of the subpoena] to the named person”—the phrase used by
Rule 45—can include methods of service other than direct, hand-over-hand personal service.
See W. Res., Inc. v. Union Pac. R. Co., No. 00-2043-CM, 2002 WL 1822432, at *2 (D. Kan. July
23, 2002) (“[T]his Court thus joins those holding that effective service under Rule 45 is not
limited to personal service. The Federal Rules of Civil Procedure should not be construed as a
shield for a witness who is purposefully attempting to evade service. . . . [T]he alternative
service . . . [must] reasonably insure[] actual receipt of the subpoena by the witness[.]” (citing
King v. Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y. 1997))); Yost v. K. Truck Lines,
Inc., No. 03-2086-DJW, 2006 WL 8440101, at *2 (D. Kan. Jan. 11, 2006) (“This Court cannot
find that the language of Rule 45(b)(1) mandates personal delivery on the individual or that it
prohibits alternative means of service. The Court will only require that service be made in a
manner that reasonably insures actual receipt of the subpoena by the trial witness.” (citing King,
170 F.R.D. at 356)).
But, the court also noted that witness fees and mileage must accompany subpoenas. See
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Fed. R. Civ. P. 45(b)(1) (“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. Fees and mileage need not be tendered when the subpoena
issues on behalf of the United States or any of its officers or agencies.”). During the hearing, the
court confirmed a correct mailing address for each of the four individuals plaintiff sought to
depose. And, during a recess in the hearing, plaintiff notified the court that she successfully had
served Mr. Woods, Mr. Moten, Mr. McIntosh, and Mr. Abdel-Khaliq with new subpoenas.1
II.
Analysis
During the hearing, plaintiff made three requests that require rulings.
First, she asked the court to grant the Motion to Compel she had filed in the Western
District of Missouri, a case that was transferred to this court after the motion’s filing. See
Judgment Creditor’s Motion to Compel Non-Parties Ephraim J. Woods, Jr., Griegory L. Moten,
Atif Abdel-Khaliq, and Marvin L. Mcintosh to Appear for Depositions, Ross v. Jenkins, No. 19201 (D. Kan. Jan. 10, 2019), ECF No. 1.2 Because plaintiff now has served these individuals
with new subpoenas, the court denies as moot this Motion to Compel.
Second, plaintiff moved the court to hold in contempt the four individuals she had served
with the subpoenas if they again failed to appear for their scheduled depositions. This case’s
docket indicates that these depositions proceeded as scheduled. While Mr. Abdel-Khaliq orally
moved to quash the subpoena served on him during the recess in the hearing, the court denied the
motion. Doc. 157 at 57 (Tr. 57:8–19). The court thus can identify no basis to hold any of the
1
Plaintiff notified the court that Mr. Woods, Mr. Moten, Mr. McIntosh, and Mr. Abdel-Khaliq all were scheduled
to be deposed on January 29 and 30, 2019. Doc. 157 at 53–54. Doc. 179 indicates Mr. Woods and Mr. Moten were
deposed on this date.
2
Consistent with Federal Rule of Civil Procedure 37(a)(2), plaintiff originally filed her Motion to Compel in the
United States District Court for the Western District of Missouri, the judicial district encompassing the location
where the witnesses were directed to appear and testify.
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four individuals served during the recess of the January 25 hearing in contempt.
Third, plaintiff seeks to recover costs for future depositions because of the expenses her
counsel incurred in organizing and traveling to the depositions that Mr. Woods, Mr. Moten, Mr.
McIntosh, and Mr. Abdel-Khaliq missed. This court has recognized that Federal Rule of Civil
Procedure 37(d)(1)(A)(i) “permits a court, on motion, to order sanctions if ‘a party . . . fails, after
being served with proper notice, to appear for that person’s deposition.’” McKenzie v. Citibank
(S.D.), NA, No. 08-2510-KHV, 2009 WL 2776407, at *1 (D. Kan. Sept. 1, 2009). “Instead of or
in addition to these sanctions, the court ‘must require the party failing to act . . . to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.’” Id.
Here, the court exercises its discretion and denies plaintiff’s request to recover deposition
costs. Nothing in the record indicates that plaintiff tendered witness and mileage fees to the
subpoenaed individuals, as Rule 45(b)(1) requires. During the January 25 hearing, Mr. AbdelKhaliq asserted that he never received witness and mileage fees but said he had received actual
notice of the subpoena. Doc. 157 at 27 (Tr. 26:25–27:10). Mr. Woods and Mr. Moten explained
that they never received notice of the subpoenas. Id. at 32 (Tr. 31:23–32:2), 40 (Tr. 40:14–20).
And, Mr. McIntosh contended that he received notice of the subpoena only when a colleague
informed him that there was “something out there for [him].” Doc. 157 at 39 (Tr. 39:2–9).
The court concludes that, in these circumstances, it is unjust to punish the individuals
who failed to appear for the depositions. But, the court now has confirmed addresses where
plaintiff can serve Mr. Woods, Mr. Moten, Mr. McIntosh, and Mr. Abdel-Khaliq with
subpoenas. And, the court warns Mr. Woods, Mr. Moten, Mr. McIntosh, and Mr. Abdel-Khaliq:
should any of these individuals again fail to appear for a deposition without properly challenging
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any new subpoenas, the court may grant a motion to recover costs and fees that plaintiff chooses
to file, provided that plaintiff properly effectuates service.
III.
Conclusion
For reasons explained above, the court denies plaintiff’s Motion for Order to Show Cause
(Doc. 112), without prejudice to refiling.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Kendra Ross’s
Motion for Order to Show Cause (Doc. 112) is denied without prejudice.
IT IS SO ORDERED.
Dated this 31st day of July, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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