The City of New York v. Fedex Ground Package System, Inc. et al

Filing 67

MEMORANDUM AND ORDER denying 47 Motion to Produce; denying 47 Motion for Sanctions. The plaintiffs' motion, Docket Entry No. 47, is denied. (Signed by Magistrate Judge Kevin Nathaniel Fox on 2/23/2015) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------)(
THE CITY OF NEW YORK and THE PEOPLE
OF THE STATE OF NEW YORK,
Plaintiffs,
-againstFEDE)( GROUND PACKAGE SYSTEMS, INC
and FEDERAL E)(PRESS CORP.,

MEMORANDUM AND ORDER
l 3-CV-9173 (ER) (KNF)

Defendants.

--------------------------------------------------------------)(
KEVIN NATHANIEL FO)(
UNITED STA TES MAGISTRATE JUDGE
Before the Court is the plaintiffs' motion for an order: (1) "compelling non-party Jonathan
Smith d/b/a Shinnecock Smoke Shop ('Shinnecock') to comply with plaintiffs' subpoena duces
tecum, served on Shinnecock on August 18, 2014, within 14 days of the Court's order"; (2)
"providing that, should Shinnecock continue to fail to comply with the subpoena after that date,
Shinnecock shall be in contempt, shall pay a contempt fine to the Court of $100 for each day that it
continues to fail to comply, and shall pay plaintiffs their reasonable attorney's fees and costs
incurred as a result of the contempt"; and (3) "for such other and further relief as the Court deems
proper." The motion is unopposed.
In support of their motion, the plaintiffs submitted a declaration by counsel to plaintiff the
City of New York, Eric Proshansky, Esq. ("Proshansky"), in which he asserts that "Shinnecock is a
sole proprietorship owned by Jonathan Smith and operated by Jonathan Smith and his employees,
and located on the Shinnecock Indian reservation in Southampton, New York." Proshansky
contends, inter alia, that "Plaintiffs effected personal service at Shinnecock's place of business on
Jackie Smith, who identified herself as the 'manager' of Shinnecock." According to Proshansky,

“Shinnecock failed to respond, object, or otherwise communicate with Plaintiffs regarding the
Document Subpoena.” Proshansky explains that “Counsel for the City contacted an attorney whom
it believed might represent Shinnecock in the matter, and on September 15, 2014, that attorney
informed the City’s counsel that he contacted Shinnecock and was advised that Shinnecock had
retained other counsel.” According to Proshansky:
On September 17, the City sent Shinnecock a le tter requesting that Shinnecock (or its
counsel, if it was repre se nted) c ontact the City to discuss a schedule for compliance
with the Document Subpoena, and stating that Pla intiffs would move to compel and for
contempt if no response was received by September 24. . . . On September 26, Plaintiffs
submitted a pre -motion conference letter to Judge Ramos (Dkt. # 40) with a copy to
Shinne c oc k. . . . “[O]n October 10, 2014, Plaintiffs submitted a pre-motion conference
letter to Judge Fox (Dkt. # 43) with a c opy to Shinnecock. . . . On October 10, 2014,
Judge Fox issued an order scheduling a telephone c onference and providing that a copy
of the order should be serve d on Shinnecock (Dkt. # 44), which the City did by
ove rnight mail. . . . On October 22, 2014, Judge Fox held a telephone conference, on
which no one for Shinnecock appeare d. During the October 22 conference, Judge Fox
instructed Plaintiffs that they could move to enforce the Document Subpoena. . . . To
date, Plaintiffs have received no response whatsoever from Shinnecock to the
Document Subpoena, any of P laintiffs’ letters, or the Court’s order scheduling a
conference.
Attached to Proshansky’s declaration are various exhibits, including Exhibit 2, which Proshansky
asserts contains “[t]rue and correct copies of affidavits of service.” Exhibit 2 shows, inter alia, the
following:
ROBERT ZYATS, being duly sworn, deposes and says that deponent is not party to
this action, is ove r 18 years of age and resides in the State of New York. That on
8/18/2014 at 12:35 PM at 50 MONTAUK HIGHWAY, SOUTHAMP TON, NY 11968,
your deponent served the Subpoena bearing Docke t # 13-CV-9173-ER upon
JONATHAN SMITH d/b/a SHINNECOCK SMOKE SHOP 2014-00218, by delivering
a true copy in a plain envelope marked ‘personal and confidential’ to a person of
suitable age and discretion, to wit: JACKIE “SMITH”, so verified that the intended
recipient actually is employed at this location. Your deponent describes the person so
served to the best of deponent’s ability at the time and circumstances of service as
follows:
Gender:
Female
Skin Color:
Brown
Hair Color:
Black
Approximate Age:
53-57

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Approximate Height: 5ft 3in-5ft 7in
Approximate Weight: 115-125
Other Information:
Manager
Legal Standard
“Any 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 and, if the subpoena requires that person’s
attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law.” Fed. R. Civ.
P. 45(b)(1). “[P]ersonal service of subpoenas is required. The use of the word ‘delivering’ in
subdivision (b)(1) of the rule with reference to the person to be served has been construed literally.
. . . Failure to tender the appropriate sums at the time the subpoena is served invalidates the
subpoena.” 9ACharles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2454 (3d
ed. 2008). “[A] minority of courts, including some within the Second Circuit, have authorized
constructive service of a civil subpoena, similar to that permitted under Rule 4, Fed. R. Civ. P.”
Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623, 2006 WL 1311967, at *1
(S.D.N.Y. May 12, 2006); see King v. Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y.
1997) (finding that hand-delivering a subpoena served under Rule 45 is not required, “so long as
service is made in a manner that reasonably insures actual receipt of the subpoena by the witness.”).
Application of Legal Standard
Lack of Service of the Instant Motion on the Non-party
The plaintiffs’ notice of motion contains the following text, located below the signatures of
the plaintiffs’ attorneys:
TO:

Jonathan Smith d/b/a Shinnecock Smoke Shop (by overnight mail)
50 Montauk Highway
Southampton, New York 11968

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However, no affidavit of service of the instant motion on the non-party “Jonathan Smith d/b/a
Shinnecock Smoke Shop” has been filed with the court. As no proof of service of the instant
motion on the non-party exists, it appears that the non-party “Jonathan Smith d/b/a Shinnecock
Smoke Shop” received no notice of the instant motion, making the motion appear to have been
made ex parte. Ex parte motions are permitted only when authorized by a statute, federal or local
rules or a standing order of the court. “No ex parte order, or order to show cause to bring on a
motion, will be granted except upon a clear and specific showing by affidavit of good and sufficient
reasons why a procedure other than by notice of motion is necessary, and stating whether a previous
application for similar relief has been made.” Local Civil Rule 6.1(d) of this court. While a notice
of motion was filed by the plaintiffs, the absence of an affidavit of service of the motion on the nonparty “Jonathan Smith d/b/a Shinnecock Smoke Shop,” against whom the motion is directed, makes
this motion constructively ex parte, depriving the non-party of due process. Thus, the plaintiffs’
motion is denied on that ground.
Validity of Service of the Subpoena
The plaintiffs’ motion is also denied on the ground that the subpoena at issue is invalid, as it
contravenes Rule 45(b)(1), because: (a) it was not served personally on the non-party; and (b) no
fees were tendered, as explained below.
The Court finds that “Jonathan Smith d/b/a Shinnecock Smoke Shop” was not served
personally, as required by Rule 45(b)(1), because a copy of the subpoena was served on “JACKIE
‘SMITH.’” Proshansky’s statement that “Jackie Smith. . . identified herself as the ‘manager’ of
Shinnecock,” is not supported by evidence because Exhibit 2 states that the “deponent describes the
person who served to the best of deponent’s ability at the time and circumstances of service,”
showing only “Other Information: Manager.” The deponent did not indicate and Exhibit 2 does not

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show anywhere that “Jackie Smith” identified herself as “the ‘manager’ of Shinnecock,” as claimed
by Proshansky. Moreover, neither the deponent nor Proshansky explained the meaning of placing
the last name of the person who was served in quotation marks: JACKIE “SMITH.”
Proshansky does not state, in his declaration, that his statements are based on personal
knowledge, and he does not identify the source of information he asserts is “true and correct,”
namely, that “Shinnecock is a sole proprietorship owned by Jonathan Smith and operated by
Jonathan Smith and his employees, and located on the Shinnecock Indian reservation in
Southampton, New York.” The Court notes that this assertion contains language almost identical to
the plaintiffs’ allegation at ¶ 31 of the amended complaint (Docket Entry No. 13). Thus, no
evidence is presented to the Court establishing that “Shinnecock is a sole proprietorship owned by
Jonathan Smith and operated by Jonathan Smith and his employees, and located on the Shinnecock
Indian reservation in Southampton, New York.” Proshansky’s declaration does not describe any
efforts made by the plaintiffs to ascertain the identity and the nature of the non-party for the purpose
of Rule 45's service of subpoena requirements or any efforts to effect service of the subpoena
personally on the non-party. The lack of information describing any diligent efforts to ascertain the
identity and the nature of the non-party is compounded by the plaintiffs’ repeated mailings to an
address, allegedly associated with the non-party, despite the non-party’s failure to respond or
otherwise communicate with the plaintiffs or the Court. Absent any evidence identifying whether
the non-party “Jonathan Smith” is an individual distinct and separate from “Shinnecock Smoke
Shop,” an alleged sole proprietorship, alleged to be “owned by Jonathan Smith and operated by
Jonathan Smith and his employees,” it is not possible for the Court to ascertain what type, if any, of
constructive service of process of the Rule 45 subpoena might be satisfactory as an alternative to
personal service under Rule 45.

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The plaintiffs assert that "Shinnecock failed to respond, object, or otherwise communicate
with Plaintiffs regarding the Document Subpoena." This assertion is of concern to the Court, in
light of the absence of personal service of the subpoena on the non-party and the lack of proof of
service of the instant motion on the non-party at issue here. The Court finds that the plaintiffs'
attempt to effect service, constructively, by serving JACKIE "SMITH," described by the deponent
as a "manager" of an unidentified person or entity, is not valid with respect to service of the Rule 45
subpoena at issue here, because the attempted service was not "made in a manner that reasonably
insures actual receipt of the subpoena by the witness." King, I 70 F.R.D. at 356; see Briarpatch
Ltd., L.P., 2006 WL I I 31I967 at *2-3 ("The constructive service methods provided for under
procedural law do not include service upon an individual's business manager, and the Court sees no
justifiable grounds for extending service in this manner here," because although the "selfproclaimed business manager" keeps the books, write checks and prepares tax returns, those things
do "not indicate that he has regular contact sufficient to inform [the non-party] of the proposed
subpoena in a timely manner.").
Additionally, no evidence has been presented to the Court that the appropriate fees were
tendered, as required by Rule 45(b)(l). The Court finds that the plaintiffs' failure to tender the
required fees, at the time they allegedly served the subpoena, invalidates the subpoena at issue here.

Conclusion
For the foregoing reasons, the plaintiffs' motion, Docket Entry No. 47, is denied.
Dated: New York, New York
February 23, 2015

SO ORDERED:

,u-,.;__~MKEVIN NA THANIEL FOX
UNITED STATES MAGISTRATE JUDGE

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