Knopf et al v. Esposito et al

Filing 235

MEMORANDUM OPINION AND ORDER. ORDERED that plaintiffs may serve Mr. Sanford by email, having already attempted on three occasions to serve him at his residence and having left a copy of the subpoena there. IT IS FURTHER ORDERED that Ms. Nadel shall advise plaintiffs counsel by November 12 at 10:00a.m. whether she will accept service on behalf of Mr. Phillips. IT IS FURTHER ORDERED that plaintiffs may serve Mr. Bronfman through an email to Ms. Nadel, having already hand delivered a subpoena for his deposition to her law firm. IT IS FURTHER ORDERED that any objection to this Order shall be filed no later than November 12 at noon. IT IS FURTHER ORDERED that plaintiffs counsel shall immediately email this Order to Mr. Sanford and Ms. Nadel. (Signed by Judge Denise L. Cote on 11-11-2020) (vs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NORMA KNOPF and MICHAEL KNOPF,
:
:
Plaintiffs,
:
-v:
:
FRANK M. ESPOSITO, DORSEY & WHITNEY,
:
LLP, NATHANIEL H. AKERMAN, EDWARD S.
:
FELDMAN, and MICHAEL HAYDEN SANFORD,
:
:
:
Defendants.
:
-------------------------------------- X

17cv5833(DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On November 10, 2020, plaintiffs requested permission to
serve three deposition subpoenas by email upon Michael Sanford,
and through their attorney, Lorraine Nadel, upon Michael
Phillips and Matthew Bronfman.

Plaintiffs seek to take the

three depositions between November 16 and 18.

That application

is granted in part.
Plaintiffs appear to have made the following efforts at
service of the deposition subpoenas.

Plaintiffs state that Mr.

Sanford refused to accept service by email.

A process server

attempted to serve Mr. Sanford at 23 McKinley Road, Montauk, NY
11954 on three separate occasions: October 31 at 1:41pm,
November 2 at 6:00pm, and November 4 at 3:23pm.

The process

server affixed a copy of the subpoena to the door of the
residence on November 4.

Ms. Nadel has declined to respond to the plaintiffs’
inquiries as to whether she would accept service on behalf of
Mr. Bronfman and Mr. Phillips.

On November 3, however, she

instructed plaintiffs’ counsel not to contact Mr. Bronfman
directly.

On November 6, subpoenas for Mr. Bronfman and Mr.

Phillips were delivered and sent by first class mail to Ms.
Nadel’s law firm.
Rule 45 of the Federal Rules of Civil Procedure states that
“[s]erving 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).

Notably, “[t]here

is no Second Circuit case law interpreting the Rule 45
requirement of delivery as requiring personal service.”

Tube

City IMS, LLC v. Anza Capital Partners, LLC, No. 14 CIV. 1783
PAE, 2014 WL 6361746, at *2 (S.D.N.Y. Nov. 14, 2014) (citation
omitted).

“District courts in this Circuit have noted that the

language of Rule 45 does not explicitly demand personal service
of a subpoena; indeed [s]uch language neither requires in-hand
service nor prohibits alternative means of service.”

Id.

(citation omitted).
Additionally, courts in this district have held that
alternative forms of service may be used in appropriate
circumstances “as long as they are calculated to provide timely

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actual notice.”

Id.

See, e.g., id. at *3 (accepting as

substitute service (1) attaching copy of subpoenas to door of
non-party and (2) mailing copy of subpoena to non-party’s
residence via certified mail and noting that third proposed
method of mailing and emailing copy of subpoenas to non-party’s
current counsel in a different case, “while not alone adequate .
. . can only help assure [non-party] is reached”); 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) (accepting service
of subpoena by certified mail, by leaving copy with person of
suitable age and discretion, and by serving counsel via email
and certified mail after nine attempts to serve personally);
Cordius Tr. v. Kummerfeld, No. 99 CIV. 3200 (DLC), 2000 WL
10268, at *2 (S.D.N.Y. Jan. 3, 2000) (accepting service by
certified mail after repeated attempts by plaintiffs to
effectuate personal service).
The Federal Rules of Civil Procedure should not be
construed as a shield for a witness who is purposefully
attempting to evade service.

They must “be construed and

administered to secure the just, speedy, and inexpensive
determination of every action.”

Fed. R. Civ. P. 1.

Accordingly, it is hereby

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ORDERED that plaintiffs may serve Mr. Sanford by email,
having already attempted on three occasions to serve him at his
residence and having left a copy of the subpoena there.
IT IS FURTHER ORDERED that Ms. Nadel shall advise
plaintiffs’ counsel by November 12 at 10:00a.m. whether she will
accept service on behalf of Mr. Phillips.
IT IS FURTHER ORDERED that plaintiffs may serve Mr.
Bronfman through an email to Ms. Nadel, having already hand
delivered a subpoena for his deposition to her law firm.
IT IS FURTHER ORDERED that any objection to this Order
shall be filed no later than November 12 at noon.
IT IS FURTHER ORDERED that plaintiffs’ counsel shall
immediately email this Order to Mr. Sanford and Ms. Nadel.
Dated:

New York, New York
November 11, 2020

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