In the Matter of Service of an Administrative Subpoena

D. Nevada

In the Matter of Service of an Administrative Subpoena

DecidedSeptember 9, 2024

Docket2:24-cv-01534

StatusUnknown

This text of In the Matter of Service of an Administrative Subpoena (In the Matter of Service of an Administrative Subpoena) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In the Matter of Service of an Administrative Subpoena, (D. Nev. 2024).

Pincite

Opinion

JASON M. FRIERSON United States Attorney 2|| Nevada Bar No. 7709 MISTY L. DANTE é ——————__—.--— - Assistant United States Attorney _¥___FILED ___RECEIVED | 501 Las Vegas Boulevard South, Suite 1100 ENTERED SERVED Oh 4|| Las Vegas, Nevada 89101 COUNSELPARTIES OF RECORI (702) 388-6336 5|| Misty. Dante@usdoj.gov Attorneys for the United States AUG | J 2024 6 CLERK US DISTRICT COURT 7 DISTRICT OF NEVADA BY:__ ANA DEPUT! 8 9 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 In the Matter of the Service of an 2:24-cv-01534-JCM-BNW Administrative Subpoena of: 12 United States’ Motion to Serve by Lindsay Garnett. Alternative Means 13 14 Under Federal Rule of Civil Procedure 45, the United States respectfully requests 15|| permission for the Veterans Administration Office of Inspector General to serve Lindsay 16|| Garnett by email. The United States has attempted personal service of Garnett seven times, 17|| courier signature required (UPS) service four times, and mailed service by certified return receipt mail, without success. The United States’ multiple attempts to locate and serve Mr. 19|| Garnett demonstrates service by email 1s warranted. Accordingly, the Court should grant 20|| the United States’ motion. I. Background On March 18, 2024, the VA OIG issued a subpoena for personal appearance for Mr. 23|| Lindsay Garnett on May 23, 2024, regarding an investigation of the Office of Health 24|| Inspections on an oversight matter.' On March 26, 2024, this subpoena was provided to the 25|| United States Marshals for personal service and attempted service on three separate dates.’ 26|| According to the USMS, on March 26, 2024, they called Mr. Garnett and he stated, “I’m 27 28|| | Exhibit (Ex.) 1-First Subpoena. 2 Ex. 2-USMS-285 Form Returned.

1 || not going to answer my door or accept paperwork.”* They attempted to serve Mr. Garnett 2 || two additional times on March 29 and April 1, 2024, but were unsuccessful.‘ 3 On April 4, 2024, the VA OIG sent service via UPS with a request for a Courier’s 4 ||signature. UPS attempted service on four different dates, April 5, 2024, at 11:41 am; April 5 2024, at 10:47 am; April 8, 2024, at 11:26 am; and on April 9, 2024, at 11:27 am.° All of 6 attempts for service were unsuccessful. 7 On April 10, 2024, the VA OIG sent service by certified return receipt mail. Mr. 8 || Garnett did not pick up the mail or sign for delivery. On May 17, 2024, the mail was 9 ||returned to the original sender as unclaimed.° 10 On May 24, 2024, the VA OIG issued a second subpoena for personal appearance 11 || for Mr. Lindsay Garnett on July 11, 2024.’ 12 After attempting service by USMS, UPS Courier, USPS certified mail, the VA OIG 13 || attempted service another four times by Reno/Carson Messenger Service, Inc. (RCMS). 14 April 24, 2024, service request was received by RCMS from the VA OIG.* RCMS 15 || attempted service on: 16 a. April 27, 2024, at 9:01 pm, 17 b. May 5, 2024, at 6:56 pm, 18 c. May 6, 2024, at 4:44 pm, and 19 d. May 30, 2024, at 8:13 pm.” 20 All attempts at service were unsuccessful. 21 77 22 \\/// 23 1\/// 24 5 ks es 96 ||° Ex. 3-UPS Record of Service for Courier Signature Delivery. ° Ex. 4-USPS Certified Mail Receipt and Tracking. 97 ||’ Ex. 5-Second Subpoena. § Ex 6-Declaration of Ryan S. Cole, Reno Carson Messenger Service, Inc., attached hereto 28 □□□ herein by reference as if fully set forth herein.

1 || Analysis A. Legal Authority 3 38 U.S.C. § 312 codifies some of the obligations given to the Inspector General of 4 ||the Department of Veteran Affairs. Under 38 U.S.C. § 312(d)(1)(A), the VA OIG is 5 || authorized to issue subpoenas, “...the Inspector General, in carrying out the provisions of 6 section, may require by subpoena the attendance and testimony of witnesses necessary 7 ||in the performance of functions assigned to the Inspector General by the Inspector General 8 || Act of 1978.” 9 Federal Rules of Civil Procedure (Fed. R. Civ. P.) Rule 81(5) allows the Fed. R. 10 || Civ. P. rules to apply to proceedings involving a subpoena. “These rules apply to 11 || proceedings to compel testimony...through a subpoena issued by a United States officer or 12 || agency under a federal statute, except as otherwise provided by statute, by local rule, or by 13 || court order in the proceedings.” 38 U.S.C. § 312(d) specifically allows for the Pica to 14 || be enforced by any appropriate district court of the United States. 15 Fed. R. Civ. P. Rule 45(b) governs civil subpoenas including the parameters related 16 the service of a subpoena. 17 B. Service by Email 18 Fed. R. Civ. P. Rule 45(b)(2) provides, in relevant part, that service of the subpoena 19 || in the United States “may be served at any place within the United States.” Rule 45(b)(1) 20 || indicates that service should be by personal service to the named person.'” However, in Rio 21 || Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002), the Court held that 22 || “trial courts have authorized a wide variety of alternative methods of service including 23 || publication, ordinary mail, mail to the defendant's last known address, delivery to the 24 || defendant's attorney, telex, and most recently, email.” The Ninth Circuit has “concluded 25 exhausting every other permissible means of service before seeking leave to utilize 26 || alternative means was not required. Instead, a party seeking a court order to serve by 27 See also Bd. of Trs. v. Noorda, No. 2:16-cv-00170-JAD-CWH, 2017 U.S. Dist. LEXIS 9g 230878 (D. Nev. Dec. 4, 2017) (Under Rule 45(b)(1), “the majority of courts understand ‘delivering’ to require personal service of the subpoena.”).

| || alternative means need only demonstrate that the particular facts and circumstances 2 || warrant the court’s intervention.” Sata GmbH & Co. KG v. USA Italco Int'l Ltd., A N.Y. Co., 3 || No. 3:18-cv-00351-MMD-WGC, 2018 US. Dist. LEXIS 246761, at *8-9 (D. Nev. Oct. 24, 4 || 2018). Additionally, “Courts are more inclined to grant such alternative service where the 5 || serving party has provided sufficient evidence of its earlier diligence in attempting to 6 || effectuate personal service.” Bd. of Trs. v. Noorda, No. 2:16-cv-00170-JAD-CWH, 2017 U.S. 7 || Dist. LEXIS 230878, at *4 (D. Nev. Dec. 4, 2017). 8 Here, the United States has attempted personal service of Garnett seven times, 9 || courier signature required (UPS) service four times and has also mailed service by certified 10 || return receipt mail, without success. Furthermore, the United States attempted to find 11 || additional addresses for Garnett by conducting multiple skip traces and searching in 12 || multiple open-source databases, without success.'' When the USMS first attempted to 13 || serve Garnett, they reached out to him by phone, and he responded that he was not going 14 || to “...answer my door or accept paperwork.” !” 15 The United States seeks to serve Garnett by email. The United States will email the 16 || subpoena to an email address that Garnett has used previously to send messages to the 17 || United States. Given that Garnett has responded to the United States in the past at this 18 || email address, service by email at this address is reasonably calculated to apprise Garnett of 19 || the subpoena. 20 Respectfully submitted August 13, 2024. JASON M.

Free access — add to your briefcase to read the full text and ask questions with AI

JASON M. FRIERSON United States Attorney 2|| Nevada Bar No. 7709 MISTY L. DANTE é ——————__—.--— - Assistant United States Attorney _¥___FILED ___RECEIVED | 501 Las Vegas Boulevard South, Suite 1100 ENTERED SERVED Oh 4|| Las Vegas, Nevada 89101 COUNSELPARTIES OF RECORI (702) 388-6336 5|| Misty. Dante@usdoj.gov Attorneys for the United States AUG | J 2024 6 CLERK US DISTRICT COURT 7 DISTRICT OF NEVADA BY:__ ANA DEPUT! 8 9 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 In the Matter of the Service of an 2:24-cv-01534-JCM-BNW Administrative Subpoena of: 12 United States’ Motion to Serve by Lindsay Garnett. Alternative Means 13 14 Under Federal Rule of Civil Procedure 45, the United States respectfully requests 15|| permission for the Veterans Administration Office of Inspector General to serve Lindsay 16|| Garnett by email. The United States has attempted personal service of Garnett seven times, 17|| courier signature required (UPS) service four times, and mailed service by certified return receipt mail, without success. The United States’ multiple attempts to locate and serve Mr. 19|| Garnett demonstrates service by email 1s warranted. Accordingly, the Court should grant 20|| the United States’ motion. I. Background On March 18, 2024, the VA OIG issued a subpoena for personal appearance for Mr. 23|| Lindsay Garnett on May 23, 2024, regarding an investigation of the Office of Health 24|| Inspections on an oversight matter.' On March 26, 2024, this subpoena was provided to the 25|| United States Marshals for personal service and attempted service on three separate dates.’ 26|| According to the USMS, on March 26, 2024, they called Mr. Garnett and he stated, “I’m 27 28|| | Exhibit (Ex.) 1-First Subpoena. 2 Ex. 2-USMS-285 Form Returned.

1 || not going to answer my door or accept paperwork.”* They attempted to serve Mr. Garnett 2 || two additional times on March 29 and April 1, 2024, but were unsuccessful.‘ 3 On April 4, 2024, the VA OIG sent service via UPS with a request for a Courier’s 4 ||signature. UPS attempted service on four different dates, April 5, 2024, at 11:41 am; April 5 2024, at 10:47 am; April 8, 2024, at 11:26 am; and on April 9, 2024, at 11:27 am.° All of 6 attempts for service were unsuccessful. 7 On April 10, 2024, the VA OIG sent service by certified return receipt mail. Mr. 8 || Garnett did not pick up the mail or sign for delivery. On May 17, 2024, the mail was 9 ||returned to the original sender as unclaimed.° 10 On May 24, 2024, the VA OIG issued a second subpoena for personal appearance 11 || for Mr. Lindsay Garnett on July 11, 2024.’ 12 After attempting service by USMS, UPS Courier, USPS certified mail, the VA OIG 13 || attempted service another four times by Reno/Carson Messenger Service, Inc. (RCMS). 14 April 24, 2024, service request was received by RCMS from the VA OIG.* RCMS 15 || attempted service on: 16 a. April 27, 2024, at 9:01 pm, 17 b. May 5, 2024, at 6:56 pm, 18 c. May 6, 2024, at 4:44 pm, and 19 d. May 30, 2024, at 8:13 pm.” 20 All attempts at service were unsuccessful. 21 77 22 \\/// 23 1\/// 24 5 ks es 96 ||° Ex. 3-UPS Record of Service for Courier Signature Delivery. ° Ex. 4-USPS Certified Mail Receipt and Tracking. 97 ||’ Ex. 5-Second Subpoena. § Ex 6-Declaration of Ryan S. Cole, Reno Carson Messenger Service, Inc., attached hereto 28 □□□ herein by reference as if fully set forth herein.

1 || Analysis A. Legal Authority 3 38 U.S.C. § 312 codifies some of the obligations given to the Inspector General of 4 ||the Department of Veteran Affairs. Under 38 U.S.C. § 312(d)(1)(A), the VA OIG is 5 || authorized to issue subpoenas, “...the Inspector General, in carrying out the provisions of 6 section, may require by subpoena the attendance and testimony of witnesses necessary 7 ||in the performance of functions assigned to the Inspector General by the Inspector General 8 || Act of 1978.” 9 Federal Rules of Civil Procedure (Fed. R. Civ. P.) Rule 81(5) allows the Fed. R. 10 || Civ. P. rules to apply to proceedings involving a subpoena. “These rules apply to 11 || proceedings to compel testimony...through a subpoena issued by a United States officer or 12 || agency under a federal statute, except as otherwise provided by statute, by local rule, or by 13 || court order in the proceedings.” 38 U.S.C. § 312(d) specifically allows for the Pica to 14 || be enforced by any appropriate district court of the United States. 15 Fed. R. Civ. P. Rule 45(b) governs civil subpoenas including the parameters related 16 the service of a subpoena. 17 B. Service by Email 18 Fed. R. Civ. P. Rule 45(b)(2) provides, in relevant part, that service of the subpoena 19 || in the United States “may be served at any place within the United States.” Rule 45(b)(1) 20 || indicates that service should be by personal service to the named person.'” However, in Rio 21 || Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002), the Court held that 22 || “trial courts have authorized a wide variety of alternative methods of service including 23 || publication, ordinary mail, mail to the defendant's last known address, delivery to the 24 || defendant's attorney, telex, and most recently, email.” The Ninth Circuit has “concluded 25 exhausting every other permissible means of service before seeking leave to utilize 26 || alternative means was not required. Instead, a party seeking a court order to serve by 27 See also Bd. of Trs. v. Noorda, No. 2:16-cv-00170-JAD-CWH, 2017 U.S. Dist. LEXIS 9g 230878 (D. Nev. Dec. 4, 2017) (Under Rule 45(b)(1), “the majority of courts understand ‘delivering’ to require personal service of the subpoena.”).

| || alternative means need only demonstrate that the particular facts and circumstances 2 || warrant the court’s intervention.” Sata GmbH & Co. KG v. USA Italco Int'l Ltd., A N.Y. Co., 3 || No. 3:18-cv-00351-MMD-WGC, 2018 US. Dist. LEXIS 246761, at *8-9 (D. Nev. Oct. 24, 4 || 2018). Additionally, “Courts are more inclined to grant such alternative service where the 5 || serving party has provided sufficient evidence of its earlier diligence in attempting to 6 || effectuate personal service.” Bd. of Trs. v. Noorda, No. 2:16-cv-00170-JAD-CWH, 2017 U.S. 7 || Dist. LEXIS 230878, at *4 (D. Nev. Dec. 4, 2017). 8 Here, the United States has attempted personal service of Garnett seven times, 9 || courier signature required (UPS) service four times and has also mailed service by certified 10 || return receipt mail, without success. Furthermore, the United States attempted to find 11 || additional addresses for Garnett by conducting multiple skip traces and searching in 12 || multiple open-source databases, without success.'' When the USMS first attempted to 13 || serve Garnett, they reached out to him by phone, and he responded that he was not going 14 || to “...answer my door or accept paperwork.” !” 15 The United States seeks to serve Garnett by email. The United States will email the 16 || subpoena to an email address that Garnett has used previously to send messages to the 17 || United States. Given that Garnett has responded to the United States in the past at this 18 || email address, service by email at this address is reasonably calculated to apprise Garnett of 19 || the subpoena. 20 Respectfully submitted August 13, 2024. JASON M. FRIERSON 21 United States Attorney /s/_ Misty L. Dante 22 MISTY L. DANTE Assistant United States Attorney 24 IT 1S SOLORDERED: 25 LZ gw le Wr ERA, UNITED STATES MAGISTRATE JUDGE ° DATED: September 9, 2024 27

28 pe 2

Cite This Page — Counsel Stack

Bluebook (online)

In the Matter of Service of an Administrative Subpoena, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-service-of-an-administrative-subpoena-nvd-2024.

Opinion

Related

Cite This Page — Counsel Stack