However, an increasing number of courts have questioned the wisdom of this interpretation. See Iorio v. Allianz Life Ins. Co., No. 05cv633, 2009 WL 3415689 (S.D. Cal. Oct. 21, 2009); Dolezal v. Fritch, No. CV-08-1362-PHX-DGC, 2009 WL 764542 (D. Ariz. Mar. 24, 2009); Chao v. Tyson Foods, Inc., 255 F.R.D. 556 (N.D. Ala. 2009); Lyman v. St. Jude Med. S.C., Inc., 580 F. Supp. 2d 719, 733 (E.D. Wis. 2008); Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008); Jamsport Entm't, LLC v. Paradama Prods., Inc., No. 02 C 2298, 2005 WL 14917, at *1-*2 (N.D. Ill. Jan. 3, 2005); Johnson v. Land O'Lakes, Inc., 181 F.R.D. 388 (N.D. Iowa 1998). There is no controlling precedent in this jurisdiction, and only one court in this district appears to have considered this question.
ISO Mot. to Quash at 8.) Defendant relies on Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008), which was decided two years after In re Vioxx by a different court within the same district. The court in Johnson found that Rule 45(b)(2)'s reference to Rule 45(c)(3)(A)(ii) limited the Court's subpoena power, not expanded it: "To read the subject to Rule 45(c)(3)(A)ii' clause as expanding the territorial reach of where a party or party officer may be served with a trial subpoena ignores the ordinary meaning of the phrase subject to.'"
Id. at 62; see alsoChao v. Tyson Foods, 255 F.R.D. 556, 559 (N.D. Ala. 2009) (" It is . . . too tenuous an inference to conclude that because a court is not required to quash a subpoena issued to a party or a party's officer under Rule 45(c)(3)(A)(ii), it therefore has the power to compel the attendance of a party witness who was served beyond the explicit geographical limitations of Rule 45(b)(2) and that service of a subpoena is valid on a nationwide basis whenever the person served is a party or the officer of a party." ) (emphases in original); Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 218 (E.D. La. 2008) (" Rule 45(c)(3)(A)(ii) spells out circumstances when a court must quash a subpoena, but it does not alter the requirements for proper service of a subpoena [under Rule 45(b)(2)]." ).
Other courts have disagreed with Vioxx, holding that Rule 45(b)(2) specifies where subpoenas may be served and Rule 45(c)(3)(A)(ii) merely makes clear that nonparties cannot be required to travel more than 100 miles except for trial within the district where they are served. The most complete explanation of this position is found in Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008), a decision from the same district as Vioxx. The Court has read Vioxx, Johnson, and related cases, and finds Johnson to be persuasive.
" ). Additionally, a handful of courts besides the ones in Mazloum and Lyman have recognized that Rule 45(b)(2)'s cross-reference of 45(c)(3)(A) serves only as a limitation of the court's subpoena power, and not an expansion of it. SeeJohnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 218 (E.D.La.2008) (" The better reading of subdivisions (b)(2) and (c)(3)(A) (ii) of Rule 45 is that the territorial scope of a court's subpoena power is defined by subdivision (b)(2), subject to the limitations spelled out in subdivision (c)(3)(A) (ii). Thus, to compel a person to attend trial, the person must be served with a subpoena in one of the places listed in Rule 45(b)(2) and not be subject to the protection in Rule 45(c)(3)(A) (ii).
Rule 45(c) geographical limits apply to parties and their officers, directors, and managing agents.Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 215-216 (E.D. La. 2008) (Vance, J.) (discussing applicability of Rule 45(c)(3)(A)(ii) to parties and party officers in places outside the territorial limits defined in Rule 45(b)(2) and holding that a party or its officer cannot be compelled to attend trial in any judicial district). If a subpoena requires a person's attendance, FED. R. CIV. P. Rule 45(b)(1) and E.D. La. L.R. 45.1 direct the issuer to tender fees for one day's attendance and the mileage allowed by law.
.R.Civ.P. 45(c) (amended 2013). Thus, although some courts viewed Rule 45 as vesting in them authority to compel party officers to testify no matter their distance from the trial court, see In re Vioxx Products Liability Litigation, 438 F.Supp.2d 664 (E.D. La. 2006), others held Rule 45 did not authorize courts to require attendance of parties and party officers at trial when they would have to travel more than 100 miles, see, e.g., Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008); see also Chao v. Tyson Foods, 255 F.R.D. 556 (N.D. Ala. 2009). The 2013 Amendments resolved the Rule's ambiguities in favor of the latter interpretation:
Rule 45(c) geographical limits apply to parties and their officers, directors, and managing agents.Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 215-216 (E.D. La. 2008) (Vance, J.) (discussing applicability of Rule 45(c)(3)(A)(ii) to parties and party officers in places outside the territorial limits defined in Rule 45(b)(2) and holding that a party or its officer cannot be compelled to attend trial in any judicial district). If a subpoena requires a person's attendance, FED. R. CIV. P. Rule 45(b)(1) and E.D. La. L.R. 45.1 direct the issuer to tender fees for one day's attendance and the mileage allowed by law.
Because Rule 45(c) directs that compliance may be commanded only as it provides, these amendments resolve a split in interpreting Rule 45's provisions for subpoenaing parties and party officers. Compare In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006) (finding authority to compel a party officer from New Jersey to testify at trial in New Orleans), with Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008) (holding that Rule 45 did not require attendance of plaintiffs at trial in New Orleans when they would have to travel more than 100 miles from outside the state). Rule 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party officer to travel more than 100 miles unless the party or party officer resides, is employed, or regularly transacts business in person in the state.
Fyie is clearly beyond the reach of the Court's subpoena power under Rule 45(c). See Fradella v. Coca-Cola Co., No. 17-9622, 2018 WL 3455707, at *2-*3 (E.D. La. Jul. 18, 2018) (quashing subpoena for the testimony of corporate representative when the subpoenaed business was headquartered more than one hundred miles from the place of trial); see also Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 222 (E.D. La. 2008) (quashing subpoenas for witnesses who resided more than one hundred miles from the place of trial). Id. at 2.