U.S. Bank National Association v. Keybank, National Assication

Background

Berkadia Commercial Mortgage, LLC asked the court for permission to use alternative service for a deposition subpoena directed to Simon Miller, a former employee of Torchlight Loan Services, LLC. Berkadia proposed delivering the subpoena to Miller’s last known address by FedEx. The plaintiff’s counsel did not object.

Court’s Analysis

Federal Rule of Civil Procedure 45 generally requires delivery of a subpoena to the named person and, when attendance is required, payment of one day’s attendance fee and legally allowed mileage. The court reviewed decisions allowing alternative service in some circumstances, particularly when the serving party had diligently attempted personal service and had requested court permission in advance.

Berkadia represented that it had attempted service at Miller’s Los Angeles residence six times. On the fifth attempt, a neighbor confirmed that the residence was Miller’s current address. On the sixth attempt, a person who identified herself as Miller’s wife said that Miller would not come to the door to accept service.

The court concluded that Rule 45 should be interpreted consistently with Federal Rule of Civil Procedure 1, which seeks the just, speedy, and inexpensive determination of actions. It therefore allowed alternative service under the circumstances presented.

Disposition

Judge Analisa Torres granted Berkadia leave to serve Miller by delivering a copy of the deposition subpoena to his last known address by FedEx. This was a procedural discovery ruling; the order did not resolve the underlying claims between the parties.