Opinion
Case No. 19-cv-01578-VEC
03-23-2020
RE: In re Navidea Biopharmaceuticals Litigation
Via ECF
Honorable Valerie Caproni, U.S.D.J.
United States District Court
Southern District of New York
40 Foley Square, Room 443
New York, New York 10007 Dear Judge Caproni:
We represent Navidea Biopharmaceuticals, Inc. ("Navidea") and Macrophage Therapeutics, Inc. ("Macrophage") (collectively, the "Plaintiffs") in the above referenced matter. Per the Court's endorsement of March 17, 2020 (ECF #100), we submit this letter motion requesting an Order permitting alternate service of process for a subpoena duces tecum and subpoena duces testificandum (collectively, the "Subpoenas") on Alec Goldberg ("Alec"), a proposed deponent.
At the outset, we want to explain to the Court that Alec is not a stranger to this litigation. Specifically: (1) Alec was hired by his father, Defendant Dr. Michael M. Goldberg ("Dr. Goldberg"), and worked for Macrophage during the relevant time frame (Ex. A); (2) on February 20, 2019, the day that Dr. Goldberg was removed as CEO of Macrophage, Alec sent a "test" e-mail from his Macrophage e-mail account to his Gmail account (Ex. B); (3) Alec was allegedly appointed to the board of Macrophage in November 2018 (Ex. C); and (4) Alec is a director of M1M2 Therapeutics, Inc. ("M1M2"), the entity involved in the transaction that is alleged by Navidea to be a breach of the August 14, 2018 agreement (Ex. D).
Since early January 2020, Plaintiffs have made numerous attempts to personally serve Alec with the Subpoenas, requiring him to appear for a deposition and produce documents to Plaintiffs. (Exs. E-G). Plaintiffs, using a process server, performed a "skip trace" search on January 10, 2020, and have performed numerous searches on the internet for Alec, to no avail. Although the skip trace searches uncovered two (2) addresses for Alec, one of which is the address of Dr. Goldberg, Plaintiffs' attempts to serve Alec at these addresses have been unsuccessful. (Exs. E-F). On January 13, 2020, Plaintiffs attempted to personally serve Alec at Dr. Goldberg's address. (Ex. E). The process server was unable to serve Alec and was informed by Dr. Goldberg that Alec did not live at that address. (Id.). On January 15, 2020, a second attempt was made to serve the Subpoenas at Alec's last known address identified through the skip trace. (Ex. F). The process server attempted to serve the Subpoenas, but there was no response after his attempts to ring the doorbell. (Id.).
Due to Plaintiffs inability to personally serve Alec or locate his residential address, on March 4, 2020, Plaintiffs filed a letter requesting the Court's assistance in compelling Dr. Goldberg to disclose Alec's address. (ECF #88). On the same day, the Court, by memo endorsement, held that a fact discovery extension would only be granted if Dr. Goldberg provided Plaintiffs with Alec's current address and phone number, and certified as such. (ECF #90). On March 6, 2020, Dr. Goldberg's counsel stated through an e-mail correspondence that 69 Thompson Street, New York, NY 10012 ("69 Thompson Street") was Alec's address and that he had no phone number. A third attempt was made to serve the Subpoenas at that address but there was no listing for Alec on any of the nameplates. (Ex. G). We e-mailed counsel for Dr. Goldberg as to whether they had an apartment number and received no response. Our process server attempted to call Alec on a number we believed to be his and received no response. Similarly, on March 12, 2020, we e-mailed him the Subpoenas at the personal Gmail address that he used for Macrophage business and received no response.
District courts in this Circuit have noted that Fed. R. Civ. P. 45 "does not explicitly demand personal service of a subpoena, but instead requires only that a copy be 'delivered' to the person whose attendance or production of documents is sought. Such language 'neither requires in-hand service nor prohibits alternative means of service.'" Cordius Trust v. Kummerfeld, No. 99 Civ. 3200 (DLC), 1999 U.S. Dist. LEXIS 19980, at *4-5 (S.D.N.Y. Dec. 29, 1999) (citation omitted); King v. Crown Plastering Corp., 170 F.R.D. 355, 356 n.1 (E.D.N.Y. 1997) (any means of service in accordance with New York procedural law sufficient to satisfy Fed. R. Civ. P. 45 requirements).
Plaintiffs have made three (3) attempts to serve Alec in person but have been unsuccessful. Because Dr. Goldberg has failed to provide a useful address for Alec (even though he has certified as such), it appears that either Alec is attempting to evade service or Dr. Goldberg is deliberately refusing to cooperate in securing his attendance at a deposition. "The [Fed. R. Civ. P.] should not be construed as a shield for a witness who is purposefully attempting to evade serve." Cordius Trust, 1999 US Dist. LEXIS 19980, at *6. Accordingly, substitute service is appropriate.
Substitute service is permitted where the means of service reasonably ensures actual receipt by the witness. See, e.g., Tube City IMS, LLC v. Anza Capital Partners, LLC, No. 14 Civ. 1783 (PAE), 2014 U.S. Dist. LEXIS 160667, at *3-4 (S.D.N.Y. Nov. 14, 2014); Med. Diagnostic Imaging, PLLC v. Carecore Nat'l, LLC, No. 06 Civ. 7764 (CS) (THK), 2008 U.S. Dist. LEXIS 62376, at *7-11 (S.D.N.Y. Aug. 15, 2008). As suggested by these authorities, alternative means of service satisfies the "delivery" requirement of Fed. R. Civ. P. 45. Cordius Trust, 1999 U.S. Dist. LEXIS 19980, at *6.
Courts have approved substitute service of subpoenas by certified mail and e-mail. See Tube City IMS, LLC, 2014 U.S. Dist. LEXIS 160667, at *3-4 (granting motion to serve witness by attaching a copy of the subpoena to the witness' door, mailing a copy to the witness' residence by certified mail, and mailing and e-mailing a copy to the witness' lawyer in a different matter); JPMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08 Civ. 9116 (PGG), 2009 US Dist. LEXIS 39714, at *9 (S.D.N.Y. May 11, 2009) (granting plaintiff's request to serve a subpoena by multiple alternate means, including "remitting a copy of the deposition subpoena by electronic mail and certified mail to counsel" of the putative deponent); Cordius Trust, 1999 U.S. Dist. LEXIS 19980, at *6-7 (granting motion to serve subpoena duces tecum by certified mail). Here, Plaintiffs propose to combine service of the Subpoenas by certified mail and by e-mail. For service of the Subpoenas by certified mail, we propose to serve the Subpoenas to his former address (which is Dr. Goldberg's residence), 69 Thompson Street (which was provided by Dr. Goldberg's counsel), and at M1M2's current company address detailed on its Certificate of Incorporation. (Ex. H). These methods are reasonably likely to ensure that Alec receives the Subpoenas.
In light of the above, Plaintiffs respectfully request that the Court issue an Order authorizing substitute service of the Subpoenas on Alec Goldberg by (i) serving a copy of the Subpoenas at the following e-mail addresses: (a) alecmgoldberg@gmail.com and (b) goldberg.alec@gmail.com; and (ii) sending, via certified mail, the original Subpoenas to the following addresses: (a) 69 Thompson Street, New York, NY 10012, (b) 207 Booth Avenue Englewood, NJ 07631; and (c) M1M2 Therapeutics, Inc., 2021 Arch Street, Philadelphia, PA 19103. Respectfully submitted, /s/ Barry M. Kazan
Barry M. Kazan Application GRANTED. The proposed method of substitute service is acceptable. The fact discovery deadline is extended to June 17, 2020.
SO ORDERED.
/s/3/23/2020
HON. VALERIE CAPRONI
UNITED STATES DISTRICT JUDGE
Exhibit A
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Exhibit B
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Exhibit C
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Exhibit D
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Exhibit E
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Exhibit F
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Exhibit G
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Exhibit H
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