Meridian PO Finance LLC v. OTR Tire Group Incorporated

• Court: District Court, D. Arizona
• Decided: January 24, 2022
• Docket: 2:20-cv-00446
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Meridian PO Finance LLC, No. CV-20-00446-PHX-MTL

10 Plaintiff, ORDER

11 v. NOT FOR PUBLICATION 12 OTR Tire Group Incorporated, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant XPO Global Forwarding, Inc.’s (“XPO”) 16 Motion for Alternate Service of Process on Non-Party Mazen Baltagi. (Doc. 83.) XPO 17 requests an order, pursuant to Fed. R. Civ. P. 45, authorizing alternative service on non- 18 party Mazen Baltagi by means of overnight mail and email. (Doc. 83 at 2.) For the reasons 19 that follow, the Court will grant the motion. 20 I. 21 Mazen Baltagi is Defendant Afif Baltagi’s brother. XPO contends that his 22 deposition testimony is necessary to develop the facts in this case. (Id. at 1.) Pursuant to 23 Fed. R. Civ. P. 45, XPO retained a professional process serving firm, Knock ‘Em Out Civil 24 Process, LLC (the “Process Server”) to personally serve Mazen a subpoena to testify at a 25 deposition, along with the appropriate notices and necessary witness fees. (Doc. 83 at 2.) 26 The Process Server made six unsuccessful attempts to serve Mazen, at both his residence 27 and business in Houston, Texas. (Id. at 3.) 28 Given the difficulty the Process Server has encountered in serving Mazen, XPO 1 believes he may intentionally be evading service. Even if he is not, XPO argues that 2 alternative service is appropriate in this instance because it has proven very difficult to 3 personally serve him. (Id. at 3.) 4 II. 5 Subpoenas must be served on non-parties in accordance with Fed. R. Civ. P. 6 45(b)(1). That Rule provides: 7 Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a 8 copy to the named person and, if the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance 9 and the mileage allowed by law. 10 The Ninth Circuit has not interpreted this provision in a published opinion. Many courts, 11 however, have interpreted Rule 45(b)(1) as requiring personal service. See Wells Fargo 12 Bank NA v. Wyo Tech Inv. Grp. LLC, No. CV-17-04140-PHX-DWL, 2019 WL 3208114, 13 at *2 (D. Ariz. July 16, 2019). But while “[t]he traditional rule has been that personal 14 service is required,” “[m]ore recently, a number of courts have upheld service by certified 15 mail or other forms of service that are reasonably calculated to achieve actual notice.” Id. 16 (quoting S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary, Rule 45, 17 at 1195 (2018)). 18 This recent, and more lenient, approach has been employed by courts for four 19 principal reasons. First, nothing in the text of Rule 45(b)(1) indicates that personal service 20 is required. Rather, the Rule states only that a copy of the subpoena must be “delivered” to 21 the named person. And the term “delivery” does not itself imply that personal service is 22 needed. See Wells Fargo Bank, 2019 WL 3208114, at *2 (citing OceanFirst Bank v. 23 Hartford Fire Ins. Co., 794 F. Supp. 2d 752, 754 (E.D. Mich. 2011)). Second, the Federal 24 Rules of Civil Procedure expressly indicate that personal service is required in at least one 25 other instance. See Fed. R. Civ. P. 4(e)(2)(a). Thus, that Rule 45(b)(1) does not expressly 26 indicate as much suggests that personal service is not required. See Wells Fargo Bank, 2019 27 WL 3208114, at *3 (citing Doe v. Hersemann, 155 F.R.D. 630, 630 (N.D. Ind. 1994). 28 Third, reading Rule 45(b)(1) as requiring personal service would render superfluous the 1 || language in Rule 45 indicating that proof of service, where necessary, requires “filing ...a 2|| statement showing the... manner of service.” Fed. R. Civ. P. 45(b)(4). If only personal || service were permissible, there would be no need to specify the manner of service. Wells Fargo Bank, 2019 WL 3208114, at *3. And fourth, allowing service by alternative means, 5 || where necessary, is consistent with Federal Rule of Civil Procedure 1, which requires that || the Federal Rules “be construed, administered, and employed by the court and the parties 7 || to secure the just, speedy, and inexpensive determination of every action and proceeding.” 8 Consistent with these principles, the Court finds that Rule 45(b)(1) does not require personal service. Rather, Rule 45 permits any method of service “reasonably calculated 10 || under all the circumstances to ensure that [the recipient] receives notice of the subpoena 11}} and that [the recipient], or attorneys representing him, have the opportunity to file an objection or motion to quash.” BBK Tobacco & Foods LLP v. Skunk Inc., No. CV-18- 13} 02332-PHX-JAT, 2020 WL 619675, at *1 (D. Ariz. Feb. 10, 2020). 14 The Court will therefore permit XPO to serve Mazen by means of: (1) overnight 15 || FedEx/UPS to his confirmed residential address in Houston, Texas; and (2) email to his 16 || personal email address, as these means are reasonably calculated to provide Mazen with notice. 18 Il. 19 Accordingly, 20 IT IS ORDERED granting Defendant’s Motion for Alternate Service of Process || on Non-Party Mazen Baltagi (Doc. 83). 22 IT IS FURTHER ORDERED that Defendant XPO may serve non-party Mazen 23 || Baltagi with a deposition subpoena by (1) overnight FedEx/UPS to 1300 Augusta Dr. #34, 24 || Houston, Texas 77057, and (2) email to baltagi.mazen@gmail.com. 25 Dated this 24th day of January, 2022. 26 □ 27 Michael T. dhurde 28 . Michael T, Liburdi United States District Judge

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