Asset recovery column: emerging minority view on delivery of subpoenas under FRCP 45

Sequor Law shareholder Leyza B. Florin and attorney Daniel Coyle in Miami discuss the emerging trend in US federal and bankruptcy courts regarding service of subpoenas under rule 45(b)(1) of the Federal Rules of Civil Procedure (FRCP).

The language of rule 45(b) establishes the method for serving a subpoena upon the subpoena target. Previously, despite differences in the text between rule 45(b) and rule 4, governing service of original process, courts required subpoenas to be served on the subpoena target exclusively by hand delivery under the methods specified in rule 4. However, rule 45(b) jurisprudence is evolving to a more liberal standard that is both more in line with the text of rule 45(b) and more advantageous to the asset recovery practitioner, and client, seeking third-party discovery – especially from discovery targets in cross-border cases who maintain multiple residences or a more transient presence in the United States.

Service of a subpoena versus service of process— what is the difference and why is there a difference?

First and foremost, service of a subpoena under rule 45 is accomplished by “delivery”, and specifically, “delivering a copy [of the subpoena] to the named person”.

Juxtapose this language with the text of rule 4, specifically subsections “e” and “f” specifying the method for service of process of natural persons, which is also applicable for service of process of artificial persons, in and outside of the US and it is clear that the standards are notably different.

Noticeably absent from the text of rule 45 are the words “personally”; “hand” delivery; or “abode” service. References to rule 4, and state rules of service of process are also missing. Thus, based upon a plain meaning of the rules, the method of service of a subpoena is not the same as service of process. In the bankruptcy context, construing rule 45 to require personal service or even abode service of a subpoena leads to an even more bizarre result since, under rule 7004(b), service of process of an adversary proceeding may be validly accomplished by first class mail.

The distinction between the method of service of a subpoena and service of process was crucial to  Judge A. Jay Cristol’s reasoned opinion in the 2008 case of Falcon Air Exp. Falcon is not the only case to analyze the distinctions between rule 45(b) and rule (4), but it provides an insightful exposition of several cases from various courts as well as an insightful analysis of the language of both rules to explain why the method of accomplishing service under each rule is different.

Judge Cristol analysed several judicial decisions from both inside and outside Florida, each of which determined that the service of a subpoena upon the recipient by a means other than personal service was valid. Moving to a statutory construction analysis, Judge Cristol determined that the term “delivering” was ambiguous and should be considered in the context of other parts of rule 45, “as well as other federal rules.” Judge Cristol stated that a reading of rule 45(b)(1) as requiring the subpoena to be personally served, would render the language of rule 45(b)(4) regarding the “manner of service”, and the language of rule 4(e)(2)(A) and 4(f)(2)(C)(i) requiring the process be delivered “personally”, as “superfluous” and “pure surplusage.” Construing rule 45(b) to require personal service would thus run afoul of the Surplusage Canon (verba cum effectu sunt accipienda).  Dubbing this approach the “better-reasoned, modern, emerging minority position,” Judge Cristol applied it to the facts of the case before him.

Other factors are also germane to determining that service is valid. The public policy underlying the service requirement is ensuring the receipt of the subpoena so that the subpoena target has notice of both the subpoena, and what is required/requested from the subpoena target. Thus, the purpose of the service requirement is actual receipt, which the courts accord significant weight to.

Courts also focus on equitable considerations when determining validity, such as attempts by subpoena targets to subvert the purpose of the rules by hyper-technically construing them as an artifice to evade service. For instance, in the 2000 case of Cordius Trust v. Kummerfeld, the US Bankruptcy Court for the Southern District of New York found rule 45 allows for service of a subpoena by certified mail on a deponent who rebuffed attempts at personal service and whose doorman restricted a process server’s access to a deponent’s apartment.

What is “delivery” and what constitutes “delivery” under the emerging minority position?

Delivery under this approach was defined in King v Crown Plastering Corp as serving the subpoena in a manner that reasonably insures actual receipt of the subpoena by the witness.  Some courts, adopting the emerging minority position, have fleshed out this standard by providing that service may be accomplished by mailing the subpoena to the subpoena target’s known address in the US or abroad. Other courts have established that sending the subpoena by common carrier is sufficient. In the Falcon case, the court determined that substitute service on another member of the household constitutes valid service, even though the subpoena target did not reside at the address where the subpoena was delivered. At least one court has ruled that delivering the subpoena to the subpoena target’s agent is sufficient, and other courts have upheld service on domestic workers.  Indeed, in a recent ruling in the case of Viacao Itpemirim in the US Bankruptcy Court for the Southern District of Florida, Judge Robert Mark held that service of the subpoena by delivering it to a non-resident domestic worker at the address where the subpoena target’s family lived was sufficient.

The emerging minority position should continue to gain adherents and traction

The so-called emerging minority position is consistent with the text of rule 45(b) and consistent with the canons of statutory construction.  It is also consistent with the policy aims of the service rule: ensuring actual receipt. The emerging minority position also establishes a more liberal standard that serves another laudable public policy goal: easing the discovery of information that will increase the likelihood of recovering assets while simultaneously discouraging the corruption of the rules of civil procedure by swindlers as a ruse to avoid valid service and valid discovery.  The advantage of this more liberal standard for the asset-recovery attorney seeking discovery from discovery-targets in cross-border cases is clear.  A lower threshold for effecting service eases the burden of attempting to serve discovery-targets who maintain a presence both inside and outside of the United States and lowers the likelihood of having to pursue discovery in foreign jurisdictions under the slow and cumbersome procedures of the Hague Convention or through a letter rogatory in a non-member state.


Federal Rules of Civil Procedure, rule 45(b)

Federal Rules of Civil Procedure, rule 4

Bland v. Fairfax County, Va., 275 F.R.D. 466, 469–70 (E.D. Va. 2011)

In re Falcon Air Exp., Inc., 2008 WL 2038799

Doe v. Hersemann, 155 F.R.D. 630, 631 (N.D. Ind. 1994)

Hall v. Sullivan, 229 F.R.D. 501, 504 (D. Md. 2005)

Codrington v. Anheuser-Busch, Inc., No. 98-2417-CIV-T-26F, 1999 WL 1043861

TracFone Wireless, Inc. v. Does, 11-CV-21871-MGC, 2011 WL 4711458

S.E.C. v. Rex Venture Group, LLC, 5:13-MC-004-WTH-PRL, 2013 WL 1278088

In re MTS Bank, 17-21545-MC, 2018 WL 1718685

Bozo v. Bozo, Case No. 12-CV-24174-WILLIAMS, 2013 WL 12128680

In re Viacao Itapemirim, S.A., 18-24871-BKC-RAM, 2019 WL 5419550

Cordius Trust v. Kummerfeld, No. 99 CIV. 3200 (DLC), 2000 WL 10268

King v Crown Plastering Corp, 170 F.R.D. 355, 356 (E.D.N.Y. 1997).

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We Remain Relentless in Our Commitment to You

19 March 2020

As COVID-19 sweeps the globe, Sequor Law continues to relentlessly pursue results for our clients during these unprecedented times. In addition, we have taken proactive steps to ensure the safety and well-being of our staff and lawyers in line with the guidance provided by the relevant authorities.


University of Miami names Sequor of counsel as first bankruptcy chair

A lawyer at Sequor Law will be the first to hold a new bankruptcy chair donated to the University of Miami by the Southern District of Florida bankruptcy court’s Chief Judge Emeritus Jay Cristol.

Of counsel Andrew Dawson will be awarded the Judge A Cristol Endowed Chair in Bankruptcy at a ceremony on 6 March, which will take place at the university where he is already a professor and a vice dean.

Judge Cristol, a University of Miami School of Law alumni himself, created the bankruptcy chair in 2016 to recognise faculty members for achievements in bankruptcy law.

In a statement, Sequor Law called Dawson a “leader” and highlighted his research focus in cross-border insolvency and labour law.

“Drew is truly deserving of this award and we are honoured to count his expertise among our ranks at Sequor Law. He is an outstanding example of our firm’s unsurpassed leadership in the practice, and demonstrates a relentless pursuit of success through his many invaluable contributions on behalf of our clients,” founding shareholder Ed Davis said in the statement.

Dawson has worked at the University of Miami as a professor of law for the past nine years and currently also holds the title of vice dean of academic affairs.

He regularly appears as a presenter and a panellist at conferences held by the Southeastern Association of Law Schools, the Hispanic National Bar Association and the American Bankruptcy Institute (ABI), taking part in the latter’s Commission to Study the Reform of Chapter 11 between 2012 and 2014.

Dawson has also contributed to the study of cross-border insolvency under the UNCITRAL Model Law. He lays claim to producing the first empirical study of Chapter 15 following its adoption in 2005. The study, entitled “Offshore Bankruptcies”, was published in Nebraska Law Review in 2009.

His most recent publication in the Chicago-Kent Law Review hones in on the topic of modularity in understanding how to apply the UNCITRAL Model Law, according to his resume. The concept – which suggests the Model Law should be understood as a “modular” system that divides complex cases into a hierarchy of components – was intended to resolve questions over the cross-border recognition of judgments following the UK Supreme Court’s 2012 Rubin decision, where it refused to enforce a US bankruptcy court’s ruling against a person who had not submitted to UK courts.

Dawson received his BA from Massachusetts-based Williams College and completed his JD at Harvard Law School. While at Harvard, he received an ABI Medal of Excellence, awarded to the student with the highest grade on a participating law school bankruptcy course.

Early in his career, Dawson clerked for Judge Jane Roth at the US Court of Appeals for the Third Circuit and for Judge Peter Walsh at the US Bankruptcy Court for the District of Delaware.

His first role in academia was at Harvard as a Kauffman Legal Fellow, awarded for research on the public sector, during which he researched bankruptcy law and corporate reoganisations. During the fellowship he had the opportunity to edit Chapter 11-related research by former Harvard bankruptcy professor turned-senator and US Presidential hopeful Elizabeth Warren.

The bankruptcy chair is Judge Cristol’s second major donation to the University of Miami. In 2012, he named the school’s pro bono bankruptcy clinic after his late wife Eleanor.

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Judge A. Jay Cristol Endowed Chair in Bankruptcy

3 March 2020

Andrew (Drew) B. Dawson , Of counsel at  Sequor Law, distinguished law professor, and Vice Dean of Academic Affairs at the University of Miami, has been awarded the Judge A. Jay Cristol Endowed Chair in Bankruptcy.