Opinion
04 Civ. 3341 (JSR)(KNF).
November 15, 2006
MEMORANDUM and ORDER
The Bank of America, and the defendants in this action who are associated with it, have made a motion, pursuant to Fed.R.Civ.P. 45(c), that a subpoena the pro se plaintiff obtained from the Clerk of Court for this judicial district, and mailed to Timothy Mayopoulos ("Mayopoulos"), at his North Carolina office, be quashed. Mayopoulos is general counsel to defendant Bank of America. In addition to sending the subpoena to him, the plaintiff sent a copy to the movants' counsel, who is located in New York. The movants contend that the subpoena was "served" on Mayopoulos beyond the territorial boundaries that are noted in Fed.R.Civ.P. 45 and, in any event, was not delivered to Mayopoulos personally, as required by the Rule. The movants also contend that the subpoena seeks a broad array of irrelevant documents and that this fact, along with the others noted above, warrants the Court in quashing the subpoena.
The plaintiff opposes the motion. She maintains, among other things, that the subpoena was served on Mayopoulos properly and was served on counsel to the movants, as is allowed by Fed.R.Civ.P. 5. The plaintiff contends the subpoena, which is similar to one she served on Mayopoulos previously and then withdrew, should be enforced by the Court because through it she seeks to obtain material that is relevant to the claims that have been asserted in this action. According to the plaintiff, she resorted to using the subpoena because, heretofore, counsel to the movants has been unwilling or unable to secure the sought-after material and to disclose it to her in response to the discovery demands she has made.
Fed.R.Civ.P. 45 governs the issuance and service of subpoenas. It provides, in pertinent part, that "[s]ervice of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person." Fed.R.Civ.P. 45 (b) (1). In addition, Rule 45(b)(2) provides that:
[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, or at any place within the state where a state statute or rule of court permits service of a subpoena issued by a state court of general jurisdiction sitting in the place of the deposition, hearing, trial, production, or inspection specified in the subpoena.
The court from which a subpoena has been issued is empowered, upon timely motion, to quash or modify the subpoena if it "subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iv).
It is undisputed that the subpoena at issue here was served on Mayopoulos by mail. The movants argue that service of a subpoena by mail is impermissible, because hand delivery, directly to the person named thereon, is needed to effect service of a subpoena properly. While some courts share that view, see, e.g., Conanicut Inv. Co. v. Coopers Lybrand, 126 F.R.D. 461 (E.D.N.Y. 1989);Khachikian v. BASF Corp., No. 91 CV 573, 1994 WL 86702 at *1 (N.D.N.Y Mar. 4, 1994); In re Johnson Johnson, 59 F.R.D. 174, 177 (D. Del. 1973), others do not. See, e.g., In re Shur, 184 B.R. 640, 642 (E.D.N.Y. 1995); King v. Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y. 1997); Cordius Trust v. Kummerfeld, No. 99 Civ. 3200, 2000 WL 10268, at *2 (S.D.N.Y. Jan. 3, 2000).
However, regardless of whether personal service of a subpoena contemplates a hand-to-hand exchange so that the subpoena is given directly to its intended recipient, and not delivered via mail or through some other means, in the case at bar, when the plaintiff caused the subpoena to be "served" on Mayopoulos in North Carolina, she ignored the territorial constraints that Fed.R.Civ.P. 45(b)(2) placed on that subpoena. On that ground alone, the Court finds that it would be improper to enforce the subpoena.
Furthermore, the plaintiff's reliance on Fed.R.Civ.P. 5, in her quest to defeat the movants' motion for an order quashing the subpoena, is misplaced. This is so because the express language of Fed.R.Civ.P. 5 makes clear that it addresses the manner in which pleadings and other material may be served on parties to an action or their counsel. Mayopoulos is not a party to this action. Therefore, by sending a copy of the subpoena to counsel to the movants, the plaintiff did not serve the subpoena on Mayopoulos. On this ground too, the Court finds that enforcing the subpoena would be improper. In addition, the Court notes that the scope of material the plaintiff sought to obtain via the subpoena is overly broad. As a result, complying with the subpoena would be an unduly burdensome exercise. This fact also warrants the Court in declining to enforce the subpoena.
For all the reasons set forth above, the subpoena the plaintiff sent to Mayopoulos, that is discussed above, will not be enforced by the Court.
SO ORDERED.