Arevalo v. Greystone Holdings, LLC

Filing 18

RULING denying 13 Motion to Compel Compliance with Subpoenas. Signed by Magistrate Judge Stephen C. Riedlinger on 04/29/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

RAY AREVALO
CIVIL ACTION
VERSUS
NUMBER 14-291-JWD-SCR
GREYSTONE HOLDINGS, LLC
RULING MOTION TO COMPEL
Before the court is the Motion to Compel Compliance with
Subpoenas filed by plaintiff Ray Arevalo.
13.

Record document number

No opposition has been filed.
Plaintiff filed this motion to compel Baton Rouge Investments,

LLC of NY and Millennium Properties of Baton Rouge, LLC to produce
documents responsive to subpoenas purportedly served on or around
February 2, 2015 via certified mail to their registered agent,
Ronald Menville.1

The subpoenas sought documents relevant to the

sale of Greystone Country Club by Baton Rouge Investments and
Millennium Properties. After no documents were received by the due
date set forth in the subpoena, March 2, 2015, the defendants filed
this motion to compel on March 23, 2015.
Under Rule 45(b)(1), Fed.R.Civ.P. “[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[].”

The

Fifth Circuit has held that proper service of a subpoena requires
personal delivery.

1

In re Dennis, 330 F.3d 696, 704 (5th Cir.

Record document numbers 9 and 10.

2003).
The record fails to establish that Menville, as the agent of
Baton Rouge Investments, LLC of NY and Millennium Properties of
Baton Rouge, LLC, was ever personally served with the subpoenas.
The subpoenas were sent via certified mail; restricted delivery,
which

requires

delivery

only

to

the

addressee’s agent, was not requested.

named

addressee

or

the

Even if mail can be a form

of delivery under Rule 45, plaintiff has not shown these subpoenas
were delivered to Menville.

The return receipts show that someone

other than Menville accepted delivery.2 Plaintiff also provided an
email from Menville which asserted that he did not receive any
subpoenas.3

Plaintiff did not provide any additional evidence to

show he complied with the personal delivery requirement under Rule
45.

Thus, the record and the plaintiff’s motion supports finding

that the subpoenas were not served in the manner required by Rule
45. While the March 10, 2015 letter from counsel for the plaintiff
informed Menville that subpoenas were issued, plaintiff has not
shown that the registered agent’s actual notice that a subpoena was
issued relieves the plaintiff of the requirement of service of the

2

Record document numbers 9 and 10. The name appears to be
Justin Mullins.
Plaintiff initially served the subpoenas via
certified mail to the registered agent’s address listed with the
Secretary of State, but the subpoenas were returned as
undeliverable.
Plaintiff subsequently sent the subpoenas via
certified mail to a different address, not listed with the
Secretary of State.
3

Record document number 13-10, Exhibit I.
2

subpoena by personal delivery to the agent.4
Accordingly, the Motion to Compel Compliance with Subpoenas
filed by plaintiff Ray Arevalo is denied.
Baton Rouge, Louisiana, April 29, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

4

The two cases relied upon by the plaintiff do not
persuasively support finding that the subpoenas were properly
served on Menville. In Ott v. City of Milwaukee, 682 F.3d 552 (7th
Cir. 2012), the appellate court held that an order denying a motion
to quash subpoenas was not immediately appealable. In dicta, the
court stated that service by mail is a “sensible option for serving
a subpoena.” Notably, the Ott court recognized that many courts
have interpreted the rule to require nothing short of personal
service, citing the Fifth Circuit case In re Dennis. Absent the
plaintiff showing that In re Dennis is no longer good law in the
Fifth Circuit, this court is not free to ignore it.
Plaintiff’s reliance on Stepp v. Rexnord Industries, Inc.,
2014 WL 3866135 (S.D.Ind. 2014), fares no better than his reliance
on Ott; Stepp first relied on the Ott court’s mail-as-a-“sensible
option”-for-service dicta, then went on to address other forms of
delivery.
3