Commercial Litigation and Arbitration

Subpoenas — Under 2013 Amendments to Rule 45, Parties and Their Officers May Not Be Subpoenaed to Travel More Than 100 Miles or Outside Their States of Residence or Business

Havens v. Maritime Commc’ns/Land Mobile, LLC, 2014 U.S. Dist. LEXIS 68786 (D.N.J. May 20, 2014):

I. Introduction

On April 25, 2014, defendant Touch Tel Corporation ("Touch Tel") moved to quash trial subpoenas issued by MCLM to Robert Cooper, its president, and David Kling, its chief engineer.  [*2] (D.E. 223.) Defendant Maritime Communications/Land Mobile, LLC ("MCLM") opposes the motion. (D.E. 239.) The Court will grant the motion to quash.

II. Factual Background

Cooper and Kling live and work in California, and do not regularly transact business in person in New Jersey. (Certif. of Kenneth D. Friedman ("Friedman Cert.") ¶¶ 3-5 [D.E. 223-2].) In March 2013, plaintiffs deposed both of them in California, and MCLM appeared at the depositions by telephone. (Friedman Cert. ¶ 6.) Several weeks later, plaintiffs and defendants Paging Systems, Inc. and Touch Tel1 entered into a settlement agreement,2 and, thereafter, defendant MCLM moved for summary judgment on the Sherman Act § 1 claim pending against it. (Id. ¶¶ 7-8.)

1   Consistent with MCLM's references in its papers, the Court sometimes refers to Paging Systems and Touch Tel collectively as "PSI-TT."

2   The Court issued an order and opinion on May 14, 2014, enforcing this settlement agreement. (D.E. 250, 251.)

At a June 6, 2013 pretrial conference, MCLM's counsel handed the subpoenas to Touch Tel's counsel, who was in attendance. (Friedman Cert. ¶ 9; Certif. of Robert W. Mauriello, Jr. ("Mauriello Cert.") ¶ 4 [D.E. 239-1].) Touch Tel characterizes  [*3] them as subpoenas to Cooper and Kling; MCLM characterizes them as subpoenas to "designated representatives" of PSI-TT. (Friedman Cert. ¶ 9; Mauriello Cert. ¶ 4.) The subpoenas specified no date or time for the required testimony. (Friedman Cert. ¶ 10; Exhs. 1-2.)

The Court denied MCLM's motion for summary judgment on March 20, 2014, and a pretrial conference was scheduled for April 1, 2014. (Friedman Cert. ¶ 11.) The following day, on March 21, 2014, MCLM emailed a letter to Touch Tel's counsel purporting to "amend" the subpoenas to Cooper and Kling "'to reflect the new trial dates' established in the Order denying [MCLM's] motion for summary judgment." (Id. ¶ 12; Exh. 3.)

A week later, on March 28, 2014, Touch Tel's counsel, in correspondence to MCLM's counsel, objected to the trial subpoenas on the grounds that they were "defective and unenforceable," and requested that they be withdrawn.3 (Id. ¶¶ 13-14; Exh. 4.) MCLM declined, both in response to this request, and in response to Touch Tel's counsel's request at the April 1, 2014 pretrial conference. (Id. ¶¶ 16-17; Exh. 5.) Touch Tel's motion to quash followed.

3   The letter indicated that Friedman had been authorized by Touch Tel to  [*4] represent Cooper and Kling with respect to the subpoenas.

III. Discussion

The text of Fed. R. Civ. P. 45 is squarely on point. Under Rule 45(c)(1), "[a] subpoena may command a person to attend a trial, hearing, or deposition only as follows:

   (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or

   (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person

   (i) is a party or a party's officer; or

   (ii) is commanded to attend a trial and would not incur substantial expense."

Under the rule, therefore, a subpoena can only require a person -- whether party, nonparty, or party officer -- to travel 100 miles from where the person resides, is employed, or regularly transacts business in person to appear at trial. There are two narrow exceptions: first, if a party or party officer, the person can be compelled to appear for trial anywhere within the person's state of residence, employment, or in which the person regularly transacts business in person; and second, if a nonparty, the person can also be compelled to appear for trial anywhere in that state if he, she, or it "would not incur substantial  [*5] expense" in doing so. Touch Tel's brief states the point concisely: "Thus, whether an officer of a party or not, under Rule 45(c) a person cannot be compelled to travel more than 100 miles to attend at trial if the place of trial is not in the state where the witness resides, is employed, or regularly transacts business in person." (Opening Br. [D.E. 223-1] at 5.) A straightforward application of the rule mandates that subpoenas issued to Cooper and Kling, California residents who work in California and do not regularly transact business in person in New Jersey [Friedman Cert. ¶¶ 3-5], cannot compel them to appear for a trial in New Jersey.

MCLM attempts to get around the rule's limits by arguing that the subpoenas were issued to Cooper and Kling as an officer and designated representative, respectively, of PSI-TT, not to Cooper and Kling as individuals, and that because PSI-TT regularly transacts business in person in New Jersey, it can be subpoenaed to appear for trial in New Jersey. MCLM's position, therefore, is that the subpoenas issued to Cooper and Kling are really subpoenas issued to the company.4

4   Providing some support for MCLM's argument is that the face of the subpoenas list  [*6] the person's name, followed by a parenthetical with PSI-TT's names, then "c/o" PSI-TT's counsel. So, the Cooper subpoena is directed to:

   Mr. Robert Cooper (defendants Paging Systems, Inc. and Touch-Tel Corp.) c/o Kenneth Friedman, Esq.

(Friedman Cert. Exh. 1.) In the Kling subpoena, the same language appears, only with "Mr. David Kling." (Id., Exh. 2.) By specifically naming people, however, MCLM's intent becomes less clear. In a similar scenario, in which the "subpoenas set forth the names of the individuals directed to appear and only parenthetically identif[ied] them as officers of" the company, the District of Delaware held that "the only inference to be drawn from the subpoenas" and the notices of deposition, which didn't even have the parenthetical, was "that they were directed to the named individuals," not to the company. Application of Johnson & Johnson, 59 F.R.D. 174, 177 (D. Del. 1973). Thus, personal service on those individuals was required, rather than service on the corporate agent. Applying this logic to the Cooper and Kling subpoenas, the parenthetical with PSI-TT's names does not transform them into subpoenas issued to the companies (despite the listing of a specific  [*7] person's name), nor does it catapult those named persons to party status for purposes of compliance with the subpoenas.

The recent amendments to Rule 45 sharply undermine this argument, however, as they were intended to circumscribe the Court's authority to compel parties and officers to travel to faraway trials. The Advisory Committee's notes on the 2013 amendments to Rule 45 indicate that the changes made to the rule "resolve a conflict that arose . . . about a court's authority to compel a party or party officer to travel long distances to testify at trial; such testimony may now be required only as specified in new Rule 45(c)." Fed. R. Civ. P. 45 advisory committee's note (emphasis added). As the Advisory Committee explained:

   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  [*8] 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.

Id. See also Gregory P. Joseph, Major Changes in Federal Subpoena Practice, 82 U.S.L.W. 584, Oct. 22, 2013 ("This amended Rule 45(c)(1)(B) is designed to reverse decisions that have compelled senior corporate officers to travel across the country to testify at trial. Whatever judicial power may currently exist to do this -- and the cases are in conflict -- it is withdrawn effective Dec. 1.").

MCLM's argument that Cooper, as an officer, must appear in New Jersey for trial ignores both the text and the spirit of the rule, which expressly mentions both parties and officers of parties -- indicating recognition that officers are distinct entities from parties for purposes of the rule -- and provides protection against situations, as here, where the officer (or party) would have to travel across the country to testify  [*9] at trial.

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