United States of America v. Holland

Filing 84

ORDER re 83 Motion for Discovery: For the reasons set forth in the attached Order, Plaintiff's motion to serve non-party David Risk with a deposition subpoena via alternative means is granted and service shall be made as follows: 1) By pos ting a copy of the deposition subpoena and a copy of this Order upon the door of the Risk Residence; and 2) By mailing a copy of the deposition subpoena and a copy of this Order to the Risk Residence by first-class mail; and 3) By mailing a copy of the deposition subpoena and a copy of this Order to the Risk Residence by certified mail, return receipt requested. Plaintiff shall thereafter file proof of service with the Court. So Ordered by Magistrate Judge James M. Wicks on 5/18/2023. (DF)

Case 2:19-cv-02456-DG-JMW Document 84 Filed 05/18/23 Page 1 of 5 PageID #: 375
FILED 
CLERK 
May 18, 2023

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
UNITED STATES OF AMERICA,
Plaintiff,
-against-

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

ORDER
19-cv-02456 (DG) (JMW)

J. RONALD HOLLAND, aka James R.
Holland,
Defendant.
--------------------------------------------------------------X
WICKS, Magistrate Judge:
Rule 45 of the Federal Rules of Civil Procedure requires “delivering a copy” of the
subpoena to the non-party. Courts have grappled with whether that means personal delivery
service and if so, whether alternate means of service can be ordered. The question presented here
– where Plaintiff has been unable to successfully personally serve the non-party – is whether
alternate service by mail is appropriate under the circumstances.
Plaintiff commenced this action to collect alleged unpaid tax liabilities from Defendant J.
Ronald Holland, aka James R. Holland (“Defendant” or “Holland”), who is now deceased. 1
Specifically, the United States commenced this action on April 26, 2019 to collect unpaid
individual tax liabilities of Holland for tax years 1983 and 1984 in the total amount of
$1,949,057.22. (DE 1.)
Holland’s partner, non-party David Risk (“Risk”), although not a lawyer, had been
informally appearing on Holland’s behalf in these proceedings (see, e.g., DE 10 (letter); 26 (status
conference); 30 (status conference); 32 (letter); 33 (letter); 39 (letter); 41 (status conference); 47

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Holland passed away in May 2022 (DE 64).

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(letter); 52 (letter); 54 (recusal motion); 57 (letter); 60 (conference); 63 (letter) 2; 68 (letter); 70
(hearing conference); and 82 (letter). Following the filing of a suggestion of death by Plaintiff (DE
64), Plaintiff moved to substitute Mr. Risk in place of decedent Mr. Holland (DE 74). The motion
to substitute was thereafter denied, with leave to renew (see DE 78 (Report & Recommendation)
and Electronic Order dated 4/10/2023 (adopting Report & Recommendation)). In the interim,
Plaintiff moved to reopen discovery (DE 81) which was granted to permit discovery on the issues
of the relationship between Risk and Holland, and whether Holland died intestate or had a Will
(Electronic Order dated 4/30/2023). The discovery period was thus reopened to June 19, 2023
(id.).
Plaintiff now seeks to depose Risk on the foregoing issues. Service of the deposition
subpoena has been attempted but failed. Plaintiff now seeks leave for alternate service of process
of the subpoena. (DE 83.)

DISCUSSION
Federal Rule of Civil Procedure 45 provides that “[s]erving a subpoena requires
delivering a copy to the named person. . .” Fed. R. Civ. P. 45(b)(1). However, the term
“delivering” is undefined and has been a source of debate. See id.; Ramchandani v. CitiBank
Nat'l Ass'n, No. 1:19-CV-09124 (VM)(SDA), 2022 WL 2960190, at *3 (S.D.N.Y. July 25,
2022). Rule 45 does not explicitly mandate personal service and Courts in this Circuit have
permitted alternative means of service after the subpoenaing party has made diligent attempts to
effectuate personal service. In re Bayerische Motoren Werke AG, No. 22 MC 115 (VB), 2022

The letter filed by Mr. Risk on September 1, 2022 never mentioned that Defendant Holland had died
many months before (DE 63). Indeed, Mr. Holland’s passing was first raised by Plaintiff in a letter filed
September 2, 2022 (DE 62), only after learning that Mr. Holland passed away in May of 2022.

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WL 2817215, at *3 (S.D.N.Y. July 19, 2022); Ramchandani, 2022 WL 2960190, at *3; Kenyon
v. Simon & Schuster, Inc., No. 16 Misc. 327 (P1), 2016 U.S. Dist. LEXIS 140917, at *8-9
(S.D.N.Y. Oct. 11, 2016). Indeed, “delivery” under Rule 45 is taken to mean a manner of
service “reasonably designed to ensure actual receipt” of a subpoena. Cadlerock Joint Venture,
L.P. v. Adon Fruits & Vegetables Inc., No. 09-CV-2507 (RRM) (RER), 2010 WL 2346283, at *3
(E.D.N.Y. Apr. 21, 2010), report and recommendation adopted, No. 09-CV-2507 (RRM)(RER),
2010 WL 2346276 (E.D.N.Y. June 8, 2010). This may include service by certified mail (see,
e.g., Ramchandani, 2022 WL 2960190, at *4), delivery to a related neighbor and emails to
attorneys (see, e.g., In re Bayerische Motoren Werke AG, No. 22 MC 115 (VB), 2022 WL
2817215, at *3 (S.D.N.Y. July 19, 2022), delivery to office security personnel followed by
service by mail (see, e.g., In re Polygon Glob. Partners LLP, No. 21 MISC. 364 (ER), 2021 WL
2117397, at *6 (S.D.N.Y. May 25, 2021), and even affixing a copy to the subpoenaed party’s
door and further mailing a copy (see, e.g., Beare v. Millington, No. 07-CV-3391 (ERK)(MDG),
2010 WL 234771, at *4 (E.D.N.Y. Jan. 13, 2010)).
Here, there can be no doubt that Plaintiff has made several diligent attempts to serve the
deposition subpoena on Mr. Risk. In support of its motion, Plaintiff submits an affidavit of
Michael Kuhner, the process server who attempted to serve Mr. Risk at his home located at 47
Old Neck Road South, Center Moriches, New York (“Risk Residence”). 3 (DE 83-1.) The
process server attests that he attempted to personally serve the subpoena on Mr. Risk on three
different days at varying times as follows:
1. on May 5, 2023, at approximately 8:03 a.m. at the Risk Residence;
2. on May 6, 2023, at appropriately 11:20 a.m. at the Risk Residence; and again,
Mr. Risk has used the Risk Residence address (and none other) on every correspondence he has filed
with the Court. See DE 32, 33, 37, 39, 47, 49, 52, 54, 57, 63, 68 and 82.
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3. on May 10, 2023, at approximately 1:01 p.m. at the Risk Residence.
(See DE 83-1.) 4
According to Plaintiff:
Nobody answered the door during the first or third attempts, though in both cases
there was a pickup truck in the driveway with Michigan license plate CNG 2322.
Id. During the second attempt, the process server spoke to a person who identified
himself as “Richard Risk,” who informed the process server that David Risk was
rehabbing from long Covid and would not be back for a week or two. Id. A search
of public records reveals that there is no Richard Risk related to David Risk and
that same search revealed that the truck in the driveway of the house is registered
to David Risk. See Exhibit B.
DE 83 at 1; see also DE 83-2 (LexisNexis Report dated 5/12/2023).
Plaintiff now requests the Court to permit service of the subpoena upon Mr. Risk by
posting a copy on the door to his residence, followed by sending a copy by first-class U.S. mail,
and then supplementing that service with sending a copy by certified mail.
Courts within this Circuit tend to favor alternative service by certified mail return receipt
requested, rather than overnight mail, as valid alternate service. See, e.g., Ramchandani, 2022
WL 2960190 at *4 (motion for alternate service granted to permit service of subpoena by
certified mail); Beare v. Millington, No. 07-CV-3391(ERK)(MDG), 2010 WL 234771, at *4
(E.D.N.Y. Jan. 13, 2010) (service was properly effectuated by affixing a copy to subpoenaed
party’s door and mailing by certified mail); Ultradent Prod., Inc. v. Hayman, No. M8-85 (RPP),
2002 WL 31119425, at *4 (S.D.N.Y. Sept. 24, 2002) (service of subpoena by certified mail
return receipt requested was valid); JPMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08 Civ.
9116(PGG), 2009 WL 1313259, at *2-3 (S.D.N.Y. May 11, 2009) (authorizing service by
Plaintiff further notes that Mr. Risk is no stranger to evading service of process as he refused to answer
the door for the process server when service of the original motion to substitute him as a party was
attempted. (See DE 83 at 2.) According to Plaintiff, the service of a previous subpoena duces tecum
required a “stake out” until Mr. Risk was served. (Id.)

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certified mail after multiple attempts at personal delivery). In light of the foregoing, the Court
finds that service on Mr. Risk by posting a copy of the deposition subpoena at the Risk
Residence, as well as mailing a copy of the subpoena to him both by first-class mail and by
certified mail return receipt requested, constitutes sufficient alternative service.
CONCLUSION
Plaintiff’s motion to serve non-party David Risk with a deposition subpoena via
alternative means is granted and service shall be made as follows:
1) By posting a copy of the deposition subpoena and a copy of this Order upon the
door of the Risk Residence; and
2) By mailing a copy of the deposition subpoena and a copy of this Order to the
Risk Residence by first-class mail; and
3) By mailing a copy of the deposition subpoena and a copy of this Order to the
Risk Residence by certified mail, return receipt requested.
Plaintiff shall thereafter file proof of service with the Court.
Dated: Central Islip, New York
May 18, 2023

S O O R D E R E D:
/s/ James M. Wicks
JAMES M. WICKS
United States Magistrate Judge

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