Peters et al v. Fervent Electrical Corp. et al

Filing 58

ORDER denying without prejudice 55 Motion for Contempt. Ordered by Magistrate Judge Marilyn D. Go on 7/5/2016. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SHARKEY SIMMONS, et ano.,
Plaintiffs,
ORDER
- against 14-CV-1804 (ARR) (MDG)
FERVENT ELECTRICAL CORP., et al.,
Defendants.
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This order concerns a subpoena served
on:
HUGH L. JACKSON.
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Peter Kutil, counsel for defendants R & A Renovations Corp.
and Roman Kuczynski, has moved by letter application dated June
21, 2016 for an order to show cause why Hugh L. Jackson (the
"deponent") should not be held in contempt of Court for his
failure to comply with a subpoena requiring him to testify at a
deposition.

See ct. doc. 55.

As set forth in Mr. Kutil's

letter, the deponent failed to appear on the dates set forth in
subpoenas purportedly served upon him.

Since "it [is] rare for a

court to use contempt sanctions without first ordering compliance
with a subpoena," (Fed. R. Civ. P. 45(g) advisory committee's
note to 2013 amendment), I treat defendants' letter as a motion
to compel.

Rule 45 of the Federal Rules of Civil Procedure provides
that an attorney, as an officer of the court, may issue a
subpoena on behalf of a court in which the action is pending.
Fed. R. Civ. P. 45(a)(2), (3).

Valid attorney-issued subpoenas

under Rule 45(a)(3) operate as enforceable mandates of the court
on whose behalf they are served.

See, e.g., Fed. R. Civ. P. 45

advisory committee's note to 1991 Amendment; Board of Govenors of
Federal Reserve System v. Pharaon, 140 F.R.D. 634, 641-42
(S.D.N.Y. 1991).
Absent an improperly issued subpoena or an "adequate excuse"
by the non-party, failure to comply with a subpoena issued under
Rule 45 may be deemed a contempt of the court where compliance is
required.

Fed. R. Civ. P. 45(g); see also Daval Steel Products

v. M/V Fakredine, 951 F.2d 1357, 1364 (2d Cir. 1991).

Indeed,

the judicial power to hold a non-party who has failed to obey a
valid subpoena in contempt is the primary mechanism by which a
court can enforce a subpoena.

See David D. Siegel, Fed. R. Civ.

P. 45, Practice Commentaries, ¶ C45-26.
Rule 45 provides that "[s]erving a subpoena requires
delivering a copy to the named person."
45(b)(1).

Fed. R. Civ. P.

The traditional interpretation of Rule 45 has been

that personal service is required.

See 9A Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 2454 (3d ed. 2009).

However, this Court agrees with

the reasoning of a growing number of courts that have held that

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"delivery" under Rule 45 means a manner of service reasonably
designed to ensure actual receipt of a subpoena by a witness
rather than personal service.

See, e.g., Sheet Metal Workers

Nat'l Pension Fund v. Rhb Installations, Inc., 2016 WL 128153, at
*2 (E.D.N.Y. 2016); Leser v. U.S. Bank Nat’l Assoc., 2011 WL
1004708, at *3 n.9

(E.D.N.Y. 2011); Cadlerock Joint Venture,

L.P. v. Adon Fruits & Vegetables Inc., 2010 WL 2346283, at *3
(E.D.N.Y. 2010); JP Morgan Chase Bank, N.A. v. IDW Group, LLC,
2009 WL 1313259, at *2-*3 (S.D.N.Y. 2009).

Even those courts

that have sanctioned alternative means of service have done so
only after the plaintiff had diligently attempted to effectuate
personal service.

See Leser, 2011 WL 1004708, at *3 n.9;

Cadlerock, 2010 WL 2346283, at *4; JP Morgan Chase, 2009 WL
1313259, at *3.
Defendants served the deponent by leaving copies of the
subpoenas with his wife on two different occasions and sending
copies by first class mail.

However, neither the process

server's affidavit nor defendants' application are sufficient to
demonstrate that defendants diligently attempted to effectuate
personal service on the deponent prior to resorting to
alternative methods of service.

Since I find that the defendant

has not yet made a sufficient effort to serve the deponent
personally prior to resorting to alternative service, I decline
at this juncture to grant defendants' motion for contempt.

See

Cadlerock, 2010 WL 2346283, at *4-*5 (denying motion for contempt

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without prejudice to re-application upon proper service of the
subpoena).
Nevertheless, Mr. Jackson is warned that he must comply with
a validly served subpoena or he could be subject to contempt
proceedings for failure to respond to the subpoena.

If he is

found to be in contempt of a subpoena, he would be subject to
sanctions, including imposition of a monetary fine, attorneys'
fees and costs.

If the failure to comply continues, the Court

could issue a warrant of arrest for failure to comply with a
court order.

CONCLUSION
For the foregoing reasons, defendants' motion for an order
to show cause is denied without prejudice.1
SO ORDERED.
Dated:

Brooklyn, New York
July 5, 2016
__/s/_________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

1

In any future application, defendants must demonstrate that
the motion was sent to the deponent. Defendants must also mail a
copy of this order to the deponent.

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