Opinion
Cause No. 1:05-CV-014.
January 21, 2005
MEMORANDUM OF DECISION AND ORDER
On January 5, 2005, the Treasury Department's Comptroller General issued subpoenas to The First Federal Savings Bank in Angola, Indiana, and The Merchants Bank in Burlington, Vermont. The subpoenas seek financial records pertaining to a customer of the banks, George McNaughton, and thus they are subject to the requirements of the Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq. As required by the Act, the Comptroller General simultaneously mailed copies of the subpoenas to McNaughton, along with a notice of his right to contest the subpoenas. McNaughton has now attempted to exercise that right by filing a motion to quash the subpoenas with this Court. (Docket # 1.) However, McNaughton failed to properly serve his motion on the Comptroller General, and thus the motion will be DENIED.
Subject matter jurisdiction arises under 28 U.S.C. § 1331. Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1(c) (providing, with immaterial exceptions, that "[a] magistrate judge may hear and determine any procedural or discovery motion or other motion or pre-trial matter in a civil or criminal case").
The Act creates several requirements for bank customers seeking to quash a subpoena. First, a motion to quash must be filed "[w]ithin ten days of service or within fourteen days of mailing" of a subpoena. 12 U.S.C. § 3410(a). McNaughton complied with this requirement, as he filed his motion on January 18, 2005, thirteen days after the subpoena was mailed to him. Second, the motion must be accompanied by an affidavit or sworn statement stating (1) that the movant is a customer of the subpoenaed banks; and (2) the movant's reasons for believing that the subpoena is improper. Id. McNaughton complied with this requirement also. ( See Docket # 1.)
But the Act also provides that service of the motion "shall be made . . . upon a Government authority by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the customer has received." 12 U.S.C. § 3410(a) (emphasis added). Further, "delivery" under the Act "has the meaning stated in rule 5(b) of the Federal Rules of Civil Procedure." Id. That Rule uses "delivery" as a synonym for personal service, i.e., handing a copy of the paper to the person or leaving at copy at the person's office or home. See Fed.R.Civ.P. 5(b)(2)(A). In other words, to properly serve his motion on the Comptroller General, McNaughton was required to either (1) personally deliver a copy; or (2) send a copy by registered or certified mail. 12 U.S.C. § 3410(a).
Unfortunately for McNaughton, he did neither of these things. Instead, he sent a copy by regular mail, which is plainly insufficient. As the District of Oregon observed in an identical case: "The language of § 3410(a) is . . . clear and simple, requiring a subpoena challenge to be served personally or by registered or certified mail. . . . [W]here Congress has expressly designated a particular method of service, compliance with that method is mandatory." Clark v. Inspector Gen. of the U.S. Dep't of Agric., 944 F.Supp. 818, 820 (D. Or. 1996). Moreover, the time for McNaughton to properly serve the Comptroller General has now run, as the fourteen-day limit expired on January 19, 2005.
The "Certificate of Service" appended to McNaughton's motion states only that a copy "was mailed to [the Comptroller General] by deposit in the United States Mail, postage pre-paid." The body of the motion states that it was served by "priority mail," but this is not the same thing as "registered or certified mail." See Degruise v. Sprint Corp., 279 F.3d 333, 337 (5th Cir. 2002) (citing http://pe.usps.gov).
The Act provides that once a movant complies with § 3410(a), the Court must order the government authority to file a sworn response, and then promptly either rule on the motion or conduct any additional proceedings that might be necessary. 12 U.S.C. § 3410(b). There is no need to do any of those things here, as McNaughton has failed to comply with § 3410(a). Accordingly, the Motion to Quash is DENIED. Clark, 944 F.Supp. at 819.