Garvins #220092 v. Hofbauer et al
Filing
339
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ANTHONY GARVINS,
Plaintiff,
File No. 2:09-CV-48
v.
HON. ROBERT HOLMES BELL
GERALD HOFBAUER, et al.,
Defendants.
/
OPINION
This prisoner civil rights case is before the Court on Defendants’ and Michigan
Department of Corrections Director Daniel Heyns’s appeal of the Magistrate Judge’s January
4, 2012, and February 9, 2012, orders (Dkt. Nos. 261, 293, Orders). (Dkt. No. 301, Appeal.)
The January 4, 2012 order granted Plaintiff’s amended motion to enforce subpoena, and the
February 9, 2012, order denied Defendants’ motion for reconsideration and/or relief from
that order. Defendants contend that the subpoena to Director Heyns was not validly served,
and that the Magistrate Judge’s attempt to enforce the invalid subpoena is clearly erroneous
and contrary to law.
A Magistrate Judge’s resolution of a non-dispositive pretrial matter should be
modified or set aside on review by the district court only if it is clearly erroneous or contrary
to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); W.D. Mich. LCivR 72.3(a). “‘A
finding is “clearly erroneous” when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.’” Adams Cnty. Reg’l Water Dist. v. Vill. of Manchester, 226 F.3d 513, 517
(6th Cir. 2000) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). A
legal conclusion is contrary to law if it contradicts or ignores applicable precepts of law, as
found in the Constitution, statutes, or case precedent. Lafountain v. Martin, 1:07-CV-76,
2010 WL 748215 (W.D. Mich. Mar. 1, 2010) (Maloney, C.J.) (citing Gandee v. Glaser, 785
F. Supp. 684, 686 (S.D. Ohio 1992)). This Court exercises its independent judgment with
respect to a magistrate judge’s legal conclusions. Id.
Defendants and Director Hynes contend that the order enforcing the subpoena should
be reversed because the Magistrate Judge did not address the issue of whether a subpoena
that has not been personally served may be enforced.
Contrary to Appellants’ assertion, the Magistrate Judge did address the issue. The
Magistrate Judge determined that the issue was moot. (Dkt. No. 293, Order at 1-2 (“The
issue of the validity of the service of the subpoena on Director Heyns is dismissed as
moot.”).) Appellants have not challenged the determination that the issue is moot. Director
Hynes appeared through counsel to respond to Plaintiff’s motion to enforce the subpoena.
Accordingly, there is no dispute that Director Hynes had actual notice of the subpoena and
an opportunity to challenge it. Given these facts, the Magistrate Judge’s determination that
the issue is moot has factual and legal support. See Hendricks v. Total Quality Logistics,
LLC, 275 F.R.D. 251, 252-53 (S.D. Ohio 2011) (holding that despite failure to comply with
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Rule 45’s notice provision, where plaintiff was able to lodge objections to the subpoenas and
suffered no irreversible prejudice, the court could move beyond the Rule 45 violation);
McClendon v. TelOhio Credit Union, Inc., 2006 WL 2380601, at *3 (S.D. Ohio Aug. 14,
2006) (holding that in the absence of prejudice, “the Court is entitled to move beyond the
alleged violation of Rule 45(b) and look to the merits of the issue of whether the subpoenaed
information is properly discoverable.”); United States v. Miller, 2007 WL 178581, at *3
(N.D. Ind. 2007) (holding that despite lack of personal service, where the subpoenaed party
had actual notice of the subpoena and appeared for a court-hearing regarding the subpoena,
any defects in the service were cured).
In addition, the Court is satisfied that the subpoena can be enforced under the
circumstances of this case. Rule 45 provides that “[s]erving a subpoena requires delivering
a copy to the named person.” Fed. R. Civ. P. 45(b)(1). Rule 45 does not define the term
“delivery,” nor does it explicitly require personal, in-hand service of a subpoena. Although
Rule 45 has historically been interpreted to require personal service, “[i]n recent years a
growing number of cases have departed from the view that personal service is required and
alternatively have found service of a subpoena under Rule 45 proper absent personal
service.” 9A Charles Alan Wright et al., Federal Practice & Procedure Civil § 2454 (3d
ed.). The Sixth Circuit has not addressed the issue, but a number of district courts within this
circuit have recently taken the position that service is effective so long as it reasonably
insures actual receipt of the subpoena. See, e.g., OceanFirst Bank v. Hartford Fire Ins. Co.,
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794 F. Supp. 2d 752, 754 (E.D. Mich. 2011) (interpreting Rule 45 to allow service of a
subpoena by alternate means once the party seeking evidence demonstrates an inability to
effectuate service after a diligent effort); Powell v. Time Warner Cable, Inc., 2:09-CV-00600,
2010 WL 5464895 (S.D. Ohio Dec. 30, 2010) (“The Court agrees with and adopts the
analyses of those courts finding that service of a subpoena is effective so long as it
reasonably insures actual receipt.”); Halawani v. Wolfengarger, No. 07-15483, 2008 WL
5188813, at *4 (E.D. Mich. Dec.10, 2008) (agreeing that Rule 45 does not require hand
delivery).
Simply put, the law is in a state of flux on this point, and there does not appear
to be any binding Sixth Circuit law. However, in circumstances where the
service of the subpoena was not personal or other procedural requirements of
Rule 45 were arguably not met, but the party did actually receive the subpoena
in a timely fashion and was not prejudiced by the method of service, it is
appropriate for the court to overlook any technical deficiencies and explore the
merits of the discovery request. The court will take that approach here.
Gist v. Pilot Travel Centers, LLC, 3:10-MC-0095, 2011 WL 4055788 at *2, n.1 (M.D. Tenn.
Sept. 12, 2011) (citations omitted).
But see McClendon v. TelOhio Credit Union, Inc.,
2:05-CV-1160, 2006 WL 2380601 (S.D. Ohio Aug. 14, 2006) (noting in passing that “Rule
45(b)(1) requires personal service of subpoenas”); Brumley v. Albert E. Brumley & Sons,
Inc., 3:08-1193, 2010 WL 2696486 (M.D. Tenn. July 7, 2010) (holding that rule 45
subpoenas “must be served personally upon the witness in accordance with the provisions
of Rule 45(b)”).
The subpoena was served on Linda Wittman. Plaintiff asserts that Ms. Wittman is in
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charge of the Litigation Section of the Michigan Department of Corrections, and that she has
accepted service on behalf of the Director in the past. The Director does not challenge these
assertions. Moreover, acceptance of the subpoena by the Litigation Sections’ Administrator,
Manager, or designee would be consistent with the MDOC’s own Policy Directive. See P.D.
02.01.102 ¶ X (“The Administrator of the Office of Legal Affairs, the Manager of the
Litigation Section, and designees are the only people authorized to accept service of a lawsuit
on behalf of the Director or the Department.”) The Director received actual notice of the
subpoena and has appeared through counsel to challenge it. Under these circumstances, the
Court is satisfied that the Magistrate Judge acted within her authority to enforce the
subpoena, both because the service complied with Rule 45, and because any defect in service
was cured.
Defendants argue in the alternative that even if the subpoena was properly served on
the Director, the order enforcing the subpoena should be reversed because Plaintiff has
multiple alternatives for obtaining the files, and subpoenaing the Director to bring records
to Plaintiff Counsel’s office is unnecessary and would set an improper precedent, given the
large number of prisoner cases.
Because the Director’s argument challenges the Magistrate Judge’s exercise of her
discretion, it is reviewed for abuse of discretion. The Magistrate Judge considered and
rejected the Director’s argument:
Regarding the director’s counsel’s concerns of harassment by prisoners
through subpoena practice, the court is not persuaded that this will occur. It
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is the court’s opinion that Director Heyns was subpoenaed only because of the
obstructive approach to discovery taken by defendants’ counsel. Thus, the
court declines to enter a ruling on what movants suggest is now essentially a
non-issue in this matter.
(Dkt. No. 293, Order 2.)
The Magistrate Judge clearly gave consideration to the unique problems inherent in
prisoner litigation, and determined that enforcement of the subpoena in this case would not
set an improper precedent. The Court finds no abuse of discretion.
For the reasons stated, the Magistrate Judge’s January 4, 2012, and February 9, 2012,
orders granting Plaintiff’s amended motion to enforce subpoena, and denying Defendant
motion for reconsideration and/or relief from that order (Dkt. Nos. 261, 293, Orders) will be
affirmed.
An order consistent with this opinion will be entered.
Dated: May 4, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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