Ishee v. Federal National Mortgage Association et al

Filing 339

ORDER granting Defendant Fannie Mae's 303 Motion to Quash. Signed by District Judge Keith Starrett on November 13, 2014 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
PORTIA ISHEE

PLAINTIFF

V.

CIVIL ACTION NO. 2:13-CV-234-KS-MTP

FEDERAL NATIONAL MORTGAGE
ASSOCIATION, et al.

DEFENDANTS

ORDER
On October 14, 2014, Defendant Fannie Mae filed a Motion to Quash [303] a
trial subpoena delivered to its corporate representative, John Curcio. Curcio attended
a settlement conference before Magistrate Judge Michael T. Parker on September 9,
2014, in Judge Parker’s chambers in Hattiesburg, Mississippi. Immediately after the
settlement conference (unsuccessfully) ended, Plaintiff’s counsel handed Curcio a trial
subpoena and check for $40.00.
Rule 45 provides:
(1)

For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A)

within 100 miles of where the person resides, is employed,
or regularly transacts business in person; or

(B)

within the state where the person resides, is employed, or
regularly transacts business in person, if the person
(i)

is a party or a party’s officer; or

(ii)

is commanded to attend a trial and would not incur
substantial expense.

FED. R. CIV. P. 45(c). Generally, “a subpoena can only require a person – whether party,
nonparty, or party officer – to travel 100 miles from where the person resides, is

employed, or regularly transacts business in person to appear at trial.” Havens v. Mar.
Commc’ns/Land Mobile, LLC, Civ. No. 11-993, 2014 U.S. Dist. LEXIS 68786, at *4
(D.N.J. May 20, 2014). But if the person being served is a “party or party’s officer,” they
“can be compelled to appear for trial anywhere within the person’s state of residence,
employment, or in which the person regularly transacts business in person . . . .” Id.
Defendant provided a declaration [303-3] from Curcio that he resides and is
employed in Texas, approximately 500 miles from Hattiesburg, Mississippi. He also
declared that he does “not conduct any business for Fannie Mae in the State of
Mississippi,” and that he has “never traveled to Mississippi on business for Fannie
Mae, with the single exception of the . . . settlement conference.” Plaintiff does not
dispute this evidence and has not provided any of her own.
Therefore, the record demonstrates that Curcio neither resides, is employed, nor
regularly transacts business in person in Mississippi or within 100 miles of this Court.
Accordingly, the Court does not have the authority to order him to appear at trial. FED.
R. CIV. P. 45(c); see also Havens, 2014 U.S. Dist. LEXIS 68786 at *4; Dietz v.
Spangenberg, Civil No. 11-2600, 2014 U.S. Dist. LEXIS 17046, at *10-*11 (D. Minn.
Feb. 11, 2014); Kiker v. Smithkline Beecham Corp., Civil Action No. 14-1445, 2014 U.S.
Dist. LEXIS 140106, at *16 (E.D. Pa. Oct. 1, 2014); A.hak Indus. Servs. BV v. Techcorr
USA, LLC, No. 3:11-CV-74, 2014 U.S. Dist. LEXIS 88480, at *5-*6 (N.D. W. Va. June
30, 2014); Williams v. Arctic Cat, Inc., No. 3:11-CV-445, 2014 U.S. Dist. LEXIS 33090,
at *9 (N.D.N.Y. Mar. 13, 2014).
Plaintiff argues that Curcio can be compelled to attend trial because his
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employer conducts business in Mississippi, essentially arguing that the subpoena
issued to Curcio was really issued to Fannie Mae. However, as another district court
observed:
The recent amendments to Rule 45 sharply undermine this argument, .
. . as they were intended to circumscribe the Court’s authority to compel
parties and officers to travel to faraway trials. The Advisory Committee’s
notes on the 2013 amendments to Rule 45 indicate that the changes made
to the rule “resolve a conflict that arose . . . about a court’s authority to
compel a party or party officer to travel long distances to testify at trial;
such testimony may not be required only as specified in new Rule 45(c).”
Fed. R. Civ. P. 45 advisory committee’s note (emphasis added).
Havens, 2014 U.S. Dist. LEXIS 68786 at *8. Plaintiff’s argument “ignores both the text
and the spirit of the rule, which expressly mentions both parties and officers of parties
– indicating recognition that officers are distinct entities from parties for purposes of
the rule – and provides protection against situations, as here, where the officer (or
party) would have to travel across the country to testify at trial.” Id. at *8-*9.
For all of these reasons, the Court finds that it does not have the authority to
compel Curcio’s attendance at trial in Hattiesburg, Mississippi. As Plaintiff has not
proposed any modification of the subpoena, the Court must grant Defendant’s Motion
to Quash [303]. See FED. R. CIV. P. 45(d)(3)(A).
SO ORDERED AND ADJUDGED this 13th day of November, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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