Tchankpa v. Ascena Retail Group, Inc.
ORDER denying without prejudice Plaintiff's 53 Motion to Compel. Signed by Magistrate Judge Chelsey M. Vascura on 1/11/2018. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Civil Action 2:16-cv-895
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura
ASCENA RETAIL GROUP, INC.,
This matter is before the court for consideration of Plaintiff’s Motion to Compel the
Production of Documents (ECF No. 53), in which Plaintiff seeks a Court order compelling
nonparty Colleen Sheehy, an individual representative of Defendant’s third-party administrator at
the Frank Gates Company, to comply with a subpoena. For the reasons that follow, Plaintiff’s
Motion is DENIED WITHOUT PREJUDICE.
The Court must deny Plaintiff’s Motion at this juncture because he failed to properly serve
the subpoena as required under Federal Rule of Civil Procedure 45(b). Rule 45(b) provides as
(1) By Whom and How; Tendering Fees. 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
Fed. R. Civ. P. 45(b). Rule 45(b)(4) further provides as follows: “Proving service, when
necessary, requires filing with the issuing court a statement showing the date and manner of
service and the names of the person served. The Statement must be certified by the server.”
Thus, generally, “Rule 45(b)(1) requires personal service of subpoenas and does not permit service
by certified mail.” McClendon v. TelOhio Credit Union, Inc., No. 2:05-cv-1160, 2006 WL
2380601, at *2 (S.D. Ohio Aug. 14, 2016); see also Lucas v. Jolin, No. 1:15-cv-108, 2016 WL
5844300, at *4 (S.D. Ohio, Oct. 6, 2016) (declining to grant movant’s motion to compel subpoena
that was served by certified mail, noting that although the Sixth Circuit has not definitively ruled
on the personal service issue, “many courts, including courts within the Sixth Circuit have held
that Rule 45 requires personal service”).
Here, the “PROOF OF SERVICE” page Plaintiff attaches to his Motion has not been
completed. (See ECF No. 53-1, PAGEID# 383.) Rather, based upon the certified mail receipt
attached to his Motion (ECF No. 53-2 at PAGEID# 385), it appears that Plaintiff attempted service
of the at-issue subpoena via certified mail. But even if the Court found certified mail to be an
acceptable method of service, the Court is unable to discern from Plaintiff’s attachments that
nonparty Ms. Sheehy received the subpoena. Rather, his attachments reflect only that Plaintiff’s
mailing was delivered to “the mail room” “in DUBLIN, OHIO 43017.” (Id. at PAGEID# 386.)
Because Plaintiff has not properly served the subpoena at issue on nonparty Ms. Sheehy, the Court
declines to issue a court order compelling her to comply.
The Court further notes that it advised Plaintiff regarding Rule 45(b)’s service
requirements both in an earlier Order (ECF No. 35) and also during the December 29, 2017
telephone conference (see ECF No. 48).
Accordingly, Plaintiff’s Motion to Compel is DENIED WITHOUT PREJUDICE to
renewal should nonparty Ms. Sheehy fail to timely respond to a properly served subpoena. To the
extent Plaintiff intends to properly serve Ms. Sheehy with a subpoena, the Court reminds him that
Rule 45(d)(3)(A) requires that he afford Ms. Sheehy a “reasonable time to comply” with the
subpoena. Under the circumstances presented here, the Court considers fourteen days
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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