IN RE: NAVIDEA BIOPHARMACEUTICALS LITIGATION

Background

Navidea Biopharmaceuticals, Inc. and Macrophage Therapeutics, Inc., identified as the plaintiffs, sought to serve two subpoenas on Alec Goldberg: one requiring him to testify at a deposition and another requiring him to produce documents. The letter described Alec Goldberg as a proposed deponent and stated that he had worked for Macrophage during the relevant period, had allegedly been appointed to Macrophage’s board, and was a director of M1M2 Therapeutics, Inc.

The plaintiffs reported that they had made three attempts to serve Alec Goldberg personally and had been unable to do so. They also reported unsuccessful searches and attempts at addresses associated with him. The plaintiffs said that Dr. Michael M. Goldberg had provided an address for Alec Goldberg but that service there was unsuccessful.

Request for Alternative Service

The plaintiffs asked the court to authorize substitute service—service by means other than personal delivery—under Federal Rule of Civil Procedure 45. They proposed sending copies of the subpoenas by email to two email addresses and sending the original subpoenas by certified mail to three listed addresses, including an address associated with M1M2 Therapeutics, Inc.

The plaintiffs argued that these methods were reasonably likely to ensure that Alec Goldberg received the subpoenas. They cited decisions stating that Rule 45 requires delivery of a subpoena but does not necessarily require hand delivery, and that alternative service may be permitted when it reasonably ensures actual receipt.

Ruling

The court granted the application. The order stated that the proposed method of substitute service was acceptable. It also extended the fact-discovery deadline to June 17, 2020.

Judge Valerie Caproni’s order resolved the subpoena-service request and changed the discovery deadline. The opinion text does not decide the underlying claims in the litigation.