Amann v. Office of the Utah Attorney General et al

Filing 193

MEMORANDUM DECISION granting in part and denying in part 182 Motion to Compel; terminating 182 Motion to Expedite. Signed by Magistrate Judge Daphne A. Oberg on 10/25/21. (alf)

FILED
2021 OCT 25 PM 1:15
CLERK
U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO COMPEL PRODUCTION
OF DOCUMENTS OR FOR
ALTERNATIVE SERVICE
(DOC. NO. 182)

PAUL G. AMANN,
Plaintiff,
v.
OFFICE OF THE UTAH ATTORNEY
GENERAL; SEAN REYES; BRIDGET
ROMANO; and TYLER GREEN,

Case No. 2:18-cv-00341-JNP-DAO

Defendants.

Judge Jill N. Parrish
Magistrate Judge Daphne A. Oberg

Before the court is Defendant Office of the Utah Attorney General’s (the “AGO”) Motion
to Compel Production of Documents or for Alternative Service (“Mot.,” Doc. No. 182). The
motion concerns a subpoena for production of documents issued by the AGO to Wanda Amann,
Plaintiff Paul Amann’s wife. (Ex. 2 to Mot., Doc. No. 182-2.) After making unsuccessful
attempts to personally serve Ms. Amann with the subpoena, the AGO emailed the subpoena to
her. (Mot. 2, Doc. No. 182.) The AGO now seeks an order compelling Ms. Amann to respond
to the subpoena or, alternatively, permitting the AGO to serve the subpoena by email. (Id. at 3.)
The AGO also requests an award of fees and costs associated with paying for the process server
and this motion. (Id.) The deadline to respond to the motion has passed, and no response has
been filed. For the reasons set forth below, the court grants the motion in part and denies it in
part, permitting the AGO to serve the subpoena by email but denying its motion to compel and
its request for an award of fees and costs.

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As set forth in the motion, Ms. Amann refused to accept service of this subpoena through
counsel, although she had done so for her deposition. (Mot. 2, Doc. No. 182.) Ms. Amann
provided an Arizona address as her residential address during her deposition. (Ex. 1 to Mot.,
Wanda Amann Dep. 6, Doc. No. 182-1.) A process server attempted to serve the subpoena at
this Arizona address. (Ex. 3 to Mot., Decl. of Tamara Adams, Doc. No. 182-3.) However, the
process server could not locate Ms. Amann at the address provided; a tenant told the process
server she did not know Wanda Amann or Ms. Amann’s location. (Id.) Subsequently, the
AGO’s counsel sent a copy of the subpoena to Ms. Amann’s email addresses:
[e-mail] and [e-mail]. (Ex. 4 to Mot., Email from S. Seder (Aug.
25, 2021), Doc. No. 182-4.) Ms. Amann used the Gmail account to correspond with other
witnesses and the court reporter in May 2021 and again as recently as August 2021. (Ex. 5 to
Mot., Email from W. Amann to J. Hanks (May 13, 2021), Doc. No. 182-5; Ex. 6 to Mot., Email
from W. Amann to R. Shutt (Aug. 16, 2021), Doc. No. 182-6.) Despite this, Ms. Amann has not
responded to the subpoena. (Mot. 2, Doc. No. 182.) Defendants’ counsel reached out to Mr.
Amann’s counsel to see if she would accept service of the subpoena for Ms. Amann, but Mr.
Amann’s counsel indicated she lacked authority to accept service. (Id., Ex. 7 to Mot., Email
from A. Hollingsworth to B. Ranshau (Sept. 29, 2021), Doc. No. 182-7.)
Rule 45 of the Federal Rules of Civil Procedure provides that “[s]erving a subpoena
requires delivering a copy to the named person.” Fed. R. Civ. P. 45(b)(1). Several district courts
in this circuit have interpreted this rule as allowing service by means other than personal service
under Rule 4 of the Federal Rules of Civil Procedure. See, e.g., Ross v. Jenkins, No. 17-2547,
2019 U.S. Dist. LEXIS 127518, at *2–3 (D. Kan. July 31, 2019) (unpublished) (noting Rule 45
service “can include methods of service other than direct, hand-over-hand personal service”);

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E.A. Renfroe & Co. v. Moran, No. 08-cv-00733, 2008 U.S. Dist. LEXIS 123018, at *4, 19–20
(D. Colo. Apr. 21, 2008) (unpublished) (holding that “effective service under Rule 45 is not
limited to hand-to-hand personal service in every case” and finding that leaving the subpoena at
the recipient’s home after his wife refused to accept service was adequate under Rule 45); Yost v.
K. Truck Lines, Inc., No. 03-2086, 2006 WL 8440101, at *2 (D. Kan. Jan. 11, 2006)
(unpublished) (finding Rule 45 does not mandate personal delivery or prohibit alternative service
and requires only that “service be made in a manner that reasonably insures actual receipt of the
subpoena by the trial witness,” including certified mail). Additionally, courts may authorize
service by alterative means as permitted under applicable state law. See Fed. R. Civ. P. 4(e)(1)
(providing that service of an individual may be completed by “following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the district court
is located or where service is made”); cf. Utah R. Civ. P. 4(d)(5)(A) (permitting service by
alternative means “if there is good cause to believe that the person to be served is avoiding
service”).
The AGO has not cited any authority finding service by email sufficient under Rule 45
absent an order authorizing alternative service. Because no such order had been issued at the
time the AGO emailed the subpoena to Ms. Amann, the AGO has not shown she was properly
served under Rule 45. Nevertheless, the AGO has demonstrated an order authorizing alternative
service is warranted here. The AGO made diligent attempts to personally serve Ms. Amann at
the residential address she provided in her deposition, but learned she was not living there. Ms.
Amann also declined to accept service through an attorney, as she had for her deposition. The
evidence submitted by the AGO provides good cause to believe Ms. Amann is avoiding service.

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Moreover, under the circumstances, service by email is a means reasonably calculated to ensure
actual receipt of the subpoena.
Accordingly, the court GRANTS the motion in part and DENIES it in part, and ORDERS
that the AGO may serve the subpoena on Ms. Amann by emailing the subpoena and a copy of
this order to [e-mail] and [e-mail]. The AGO’s request for an
award of fees and costs is denied.
DATED this 25th day of October, 2021.
BY THE COURT:
_________________________________________
Daphne A. Oberg
United States Magistrate Judge

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