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

Sequor Law shareholder Leyza Florin Blanco 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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