Opinion
No. 01-42217 (REG), Jointly Administered, Adv No. 04-3072(REG).
June 25, 2004
Wiley Rein Fielding LLP, Counsel for defendant Eden Center, Inc., McLean, Virginia, By: H. Jason Gold, Esq., Todd Bromberg, Esq., Dylan G. Trache, Esq.
Kasowitz, Benson, Torres Friedman LLP., Counsel for plaintiff NWL Holdings, Inc. New York, NY, By: Howard Schub, Esq.
DECISION AND ORDER ON MOTION TO QUASH
Subject to cite checking and technical corrections.
Eden Center, Inc., the defendant in this adversary proceeding under the umbrella of a case under chapter 11 of the Bankruptcy Code, moves to quash the subpoena served by plaintiff NWL Holdings, Inc., requiring the attendance of Eden Center's president, Norman Ebenstein, a resident of Florida, at trial here in New York. Eden Center's motion is denied.
Eden Center contends that NWL's subpoena requires Mr. Ebenstein to travel more than 100 miles to the trial, from without the district, and hence must be quashed. NWL responds by asserting that the 100-mile limitation is limited to subpoenas on nonparties, and that the limitation is inapplicable where, as here, one party seeks to compel the attendance of an officer of another party.
The Court agrees with NWL. Though the caselaw and commentary are not uniform — in no small part by reason of reliance by courts and commentary on caselaw preceding 1991 amendments to the Federal Rules — this Court believes that the correct view is that limitations on subpoenas on non-parties are not applicable when the subpoenaed person is a party, or an officer of one.
Fed.R.Civ.P. Rule 45(b) provides, in relevant part:
. . .
(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena. . . .
(Emphasis added).
That subparagraph (c)(3)(A) — which is part of a paragraph dealing generally with protection of persons subject to subpoenas — provides, in relevant part:
On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
. . .
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person. . . .
(Emphasis added).
Rule 45(c)(3)(A)(ii) grants the ability to quash, based on a travel obligation of more than 100 miles, where the subpoenaed person "is not a party or an officer of a party." Since that provision easily could have been drafted, if it had been the rulemaking intent, to simply omit the italicized language and make its provisions applicable to "a person" generally, the compelling interpretation is that its application is limited to those persons who are particularly described — i.e., to non-parties or their officers.
Then, the ability to serve a subpoena in the first place — granted under Rule 45(b) — is expressly made subject to the provisions of subparagraph (c)(3)(A). The Court notes that Fed.R.Civ.P. 45 was amended in 1991, at which time the present paragraph (c) was added, as was the qualifying condition in paragraph (b) that refers to subparagraph (c)(3)(A). Eden Center properly observes, in its letter reply, that the Committee Notes to the 1991 amendments say that subparagraph (c)(3)(A) "restates the former provisions with respect to the limits of mandatory travel that are set forth in the former paragraphs (d)(2) and (e)(1) with one important change," and that the change the Advisory Committee referred to was a different one, unrelated to this controversy. But it is noteworthy, in this Court's view, that the pre-1991 Rule did not by its terms make distinctions between parties and non-parties, and thereafter it did.
One of the cases upon which Eden Center relies, Johnson v. Land O' Lakes, Inc., 181 F.R.D. 388, 396-397 (N.D. Iowa 1998) (" Land O' Lakes"), attaches a different meaning to the "subject to" language, and does not find it relevant to the subpoena power there granted, though it does find it relevant to motions to quash. This Court, with respect, cannot agree with its conclusion, and agrees instead with a later decision in the Northern District of Iowa that also disagreed with the Land O' Lakes conclusion. See below.
Eden Center's other point based on the Committee Notes — its reliance on the observation that the newly added subdivision (c) "is not intended to diminish rights conferred by Rules 26-37 or any other authority" is not relevant, however, as this dispute does not involve either a discovery subpoena, which could in many cases involve Rules 26-37 concerns, or reliance by either party on "other authority."
That suggests to this Court either that the Rule always contemplated such a distinction (and that the 1991 amendments confirmed or codified it), or that it was an additional change not mentioned. In any event, it seems clear to this Court that the addition of the words "who is not a party or an officer of a party," as part of the 1991 amendments, to language that did not previously include it, was not inadvertent, and is significant.
See Mason v. Texaco, Inc., 741 F. Supp. 1472, 1504 (D. Kan. 1990) (pre-1991 amendments case). On a motion for judgment N.O.V. or alternatively for a new trial, asserting error in the original trial, the court observed:
Defendant also alleges error for compelling the attendance of Ron Richards, a Texaco employee, in plaintiff's case in chief. . . . Although Mr. Richards resides more than 100 miles from this district, he is Texaco for purposes of this lawsuit, and thus a party to the action. The court does not believe that the limitation of Fed.R.Civ.P. 45(e) [where the 100 mile rule appeared at the time] applies to this situation, particularly considering defendant's stated intention to call this key witness in any event.
As noted, the caselaw and commentary is mixed, and there is some that does indeed support Eden Center's position. But only one of Eden Center's cases or secondary authority sources even addresses the "who is not a party or an officer of a party" language. The others either predated the 1991 amendments, and thus had no opportunity to address the significance of the "who is not a party or an officer of a party" language, or failed to address it for unknown reasons. In re Vienna Park Properties, relied on by Eden Center in its motion, is in the former category. As that decision (which quoted the relevant portion of Rule 45 at the time) makes clear, the key language was not then in the Rule. Another case upon which Eden Center relies, Smith v. Chason, while decided after the 1991 amendments, did not discuss the "who is not a party or an officer of a party" language, and relied only on pre-1991 authority. Similarly, while Wright Miller, relied on by Eden Center in its motion, does indeed say that the 100-mile limit "applies to a party as well as to an ordinary witness," it cites only a single 1967 case for that view, and inexplicably fails to address either the " who is not a party or an officer of a party" language, or the later contrary caselaw, discussed above. Its observations in this respect cannot be regarded as persuasive for that reason.
120 B.R. 320 (Bankr. S.D.N.Y. 1990), vacated on other grounds, 125 B.R. 84 (S.D.N.Y. 1991).
1997 WL 298254 (D. Mass. 1997) (considering ability to compel witnesses in context of a transfer motion).
See. id. at *9 n. 4.
9A Wright Miller § 2461 (1995, with 2003 Pocket Part, which leaves the 1995 text in this respect unchanged).
Id. at 61-62.
See id. at 61-62 n. 3, citing Steel, Inc. v. Atchison, Topeka Santa Fe Ry. Co., 41 F.R.D. 337 (D. Kan. 1967).
Moore's Federal Practice, which the Court has also consulted, does not really speak to the matter, or express a view one way or another. See 9 Moore's Federal Practice — Civil § 45.04 (2004)[3][b][ii]. But in each of the two places in which it refers to the person subject to the 100 mile limit, it makes reference to a "a nonparty." See id.
The one case cited by Eden Center that does address the new language of the 1991 amendments, Land O' Lakes, holds, as Eden Center says it does, that an officer of a party cannot be required to travel more than 100 miles under a trial subpoena, and it quashed a subpoena served upon such an officer on that basis. But with respect, the Court finds Land O' Lakes unpersuasive, as did a later decision in Land O' Lakes' district, discussed below.
Ferrell v. IBP, Inc., 2000 WL 34032907 (N.D. Iowa 2000) ("Ferrell").
In parsing the language of Rule 45, the Land O'Lakes court drew a distinction between the subject matter of section (b), discussing "Service" of subpoenas — and perhaps (though this Court doubts it) their legitimate geographic range — and section (c), addressing "Protection of Persons Subject to Subpoenas." In quashing a subpoena requiring an officer of a corporate party to travel more than 100 miles, the Land O' Lakes court regarded subsection (b) as "defin[ing] the court's subpoena power" (finding the corporate officer to be "beyond it"), and regarded subsection (c)(3)(A)(ii) as allow[ing] for quashing a subpoena "otherwise within the court's subpoena power, but in circumstances not applicable here." It found that to be the meaning of the "subject to" provisions of Rule 45(c)(3)(A).
It did not analyze caselaw dealing with the issue.
But this Court cannot agree. This Court initially disagrees with the Land O' Lakes court's conclusion, reached without reference to authority, that section (b) did indeed have the purpose or effect of defining a kind of jurisdictional reach, in a section captioned "Service," and in each of whose subsections mechanical aspects of the service of process are discussed. But even assuming, arguendo, that section (b) did have the additional purpose or effect of defining jurisdictional reach, the asserted jurisdictional reach was made expressly conditional on a separate subsection (c)(3)(A)(ii), which had the very different subject matter, much more relevant here, of "Protection of Persons Subject to Subpoena," so that protective provisions, which granted substantive (or at least procedural) rights to some — but less than all — of those required to travel more than 100 miles to testify, were incorporated into Rule 45(b). And the Land O' Lakes court found no "negative implication" in subsection (c)(3)(A)(ii)'s drafting; this Court cannot agree. The drafting scheme, in this Court's view, is a classic example of what judges and lawyers think of under " expressio unius." Finally, as noted, Land O' Lakes has been subsequently criticized and rejected, in its own court, by later authority, which, with lengthy citations, has observed that Land O' Lakes "does not follow the majority of courts which have addressed the issue."
"Expressio unius est exclusio alterius" and " inclusio unius est exclusio alterius" — which are interchangeable maxims of interpretation — hold that to include or express one thing implies the exclusion of the other, or of the alternative. Garner, A Dictionary of Modern Legal Usage (1995), at 432. "For example, a rule that `each citizen is entitled . . .' implies that noncitizens do not share in the entitlement." Id. The language of Rule 45(c)(3)(A)(ii), providing that "a person who is not a party or an officer of a party" is entitled to an order to quash, implies that those outside that class do not share in the entitlement.
Ferrell, 2000 WL 34032907 at *1.
Many other cases — including several that have expressly focused on the language of subsections (b)(2) and (c)(3)(A)(ii) — are to the contrary, and hold or imply that the 100 mile limit is inapplicable to officers of parties. Others do likewise, albeit with less express discussion of the Rules' language. In Bennett Funding, a post-1999 amendments case, Judge Kahn in this Court's sister district expressly focused on the distinction between parties and non-parties. In the context of considering the ability to use process to compel the presence of witnesses (one of the factors used to determine § 1404(a) transfer motions), he was well aware of the distinction. He noted, inter alia, that "if the case remains before this Court [in New York], the Court will be able to compel all the party witnesses from California to appear before it." The same reasoning is apparent in Mason, supra, though under a rule that, at the time, did not then expressly make distinctions between parties and non-parties.
See Younis v. American Univ. in Cairo, 30 F.Supp.2d 390, 395 n. 44 (S.D.N.Y. 1998) (Kaplan, J.) (recognizing that officers of an Egyptian university which was a defendant in the action could be compelled to appear to testify in New York); Prudential Securities, Inc. v. Norcom Devel., Inc., 1998 WL 397889 at *5 (S.D.N.Y. 1998) (Chin, J.) (noting non-party witnesses from Florida would "not likely be subject to the subpoena power of either a New York or North Carolina district court," citing Fed.R.Civ.P. 45(b)(2) (c)(3)(A)(ii)); ( Stone v. Morton Int'l, Inc., 170 F.R.D. 498, 500-501 (D. Utah 1997) (in context of deposition subpoena, court noted, "Rule 45 F.R.C.P. allows a corporate officer of a party to be subpoenaed to appear beyond the 100 mile limitation. . . . Rule 45, F.R.C.P. does extend the subpoena power more broadly to a corporate officer than to a non-party because the corporate officer of a party may be considered the corporate alter ego.") (emphasis added); Venzor v. Chavez Gonzalez, 968 F.Supp. 1258, 1267 (N.D.Ill. 1997) (the 100-mile "limitation on a trial subpoena applies only to `a person who is not a party,'" citing Fed.R.Civ.P. 45(c)(3)(A)(ii))); Nat'l Property Investors, VIII v. Shell Oil Co., 917 F.Supp. 324, 329 (D.N.J. 1995) ("[U]nlike party witnesses, Fed.R.Civ.P. 45(c)(3)(A)(ii), nonparty witnesses [from North Carolina] cannot be compelled to testify before this Court. . . .") (emphasis added); Exxon Shipping Co. v. U.S. Dept. of Interior, 34 F.3d 774, 779 (9th Cir. 1994) (recognizing "special protection" afforded to "nonparties," citing Fed.R.Civ.P. 45(c)(3)(A)(ii)); M.F. Bank Restoration Co. v. Elliott, Bray Riley, 1994 W.L. 719731 at *8 (E.D.Pa. Dec. 22, 1994) (quashing subpoenas served on employees residing more than 100 miles from trial "[b]ecause none of these six employees is represented to be an officer of [the party corporation]. . . ."); Ferrell, 2000 WL 3432907 at *1 (citing these and other cases, and rejecting Land O' Lakes as inconsistent with them).
In re Bennett Funding Group, Inc., 259 B.R. 243, 250 (N.D.N.Y. 2001).
Id. (emphasis added).
Finally, the observations of Professor David Siegel, in his commentary with respect to Fed.R.Civ.P. 45, also reinforce this Court's belief that it can compel the attendance at trial of a party's officer, whether or not he is more than 100 miles away. He noted:
See Commentary C45-16, after Fed.R.Civ.P. 45, in 28 U.S.C.A.
Among the parties themselves, there is the general assumption that each will appear at the trial, which relieves Rule 45 of any special concern about that. If it should for any reason become necessary to have a party appear at the trial who it turns out will not appear voluntarily — including a person who is in the control of a party, which sweeps the corporation under this category as well — the court has all the leverage it needs to compel the party's appearance. If the court directs the attendance of the party, disobedience can be compelled with something the seeking party would enjoy even more than the invoking of the contempt penalty: a default judgment against the recalcitrant party. Hence Rule 45 shows little tension when a party is involved.
It more than compensates for that relaxation by working hard, and often, on the nonparty witness, addressing at several points the protections erected for the convenience of nonparties and then adding a provision that allows even the nonparty to be directed to travel far to the courthouse, apparently even across the country if need be, but only on a very strong showing.
Id. (emphasis added).
Eden Center's second major point — that because NWL could take Mr. Ebenstein's deposition and, because of uncertainty as to whether it would prevail on this motion, even videotaped it — is insufficient to cause this Court to quash an otherwise permissible subpoena. NWL contends that Mr. Ebenstein's credibility is important, and the nature of the underlying issues — claims of pretext — is such that credibility may be important. The Court will not foreclose either side from putting credibility in issue, or, of course, responding to any contentions in that regard, and as in Ferrell, the facts that Mr. Ebenstein's deposition was taken, and indeed was videotaped, are not conclusive.
See 2000 WL 34032907 at *1 ("The defendant further argues the subpoenaed individuals have testified in two depositions, at least one which was videotaped, and suggests the plaintiff can `show the jury the videotaped depositions and suffer no prejudice.'" But enforcing subpoenas anyway).
Eden Center's final point — that the distinction between parties and non-parties cannot be invoked, because the subpoena served upon Mr. Ebenstein required his personal presence, and did not identify him, or require him to appear, as Eden Center's president — is frivolous.
The motion to quash is denied. So ordered.