Mikhaylova v. Bloomingdales, Inc.
- George Daniels
- 1:19-cv-08927
- U.S. District Court · Southern District of New York
- 4
In Mikhaylova v. Bloomingdale’s, Judge Cave granted part and denied part of a request concerning alternative service of a deposition subpoena.
The order affected Kristina Mikhaylova’s efforts to serve a deposition subpoena on nonparty witness Bobby Booker. It allowed alternative service and a final service extension but denied retroactive approval of earlier attempts and did not compel Booker to attend the requested deposition.
What happened
In Mikhaylova v. Bloomingdale’s, Kristina Mikhaylova asked to serve a deposition subpoena on Bobby Booker using alternative methods, including email and mail, and to require him to attend a remote deposition.
The court found that Mikhaylova had tried to serve Booker personally 13 times at three locations. It allowed her one final extension, until February 24, 2023, to serve him by alternative means, including certified mail, email, and telephone. It did not approve her earlier service attempts retroactively or require Booker to attend the March 3 deposition.
The court’s order was granted in part and denied in part. Judge Sarah L. Cave also required Mikhaylova to file proof of service or report that service was unsuccessful by February 27, 2023, and stated that no further extensions would be granted.
The detailed version
- Mikhaylova v. Bloomingdales, Inc. · No. 1:19-cv-08927
- George Daniels
- Feb. 17, 2023
Background
Kristina Mikhaylova sought permission concerning a deposition subpoena for Bobby Booker, a nonparty witness. The court had previously given her a 60-day extension to serve the subpoena after he appeared to have evaded service. On February 17, 2023, Mikhaylova asked the court to retroactively approve earlier alternative-service attempts, permit additional service by email and text message, and require Booker to appear remotely for a deposition on March 3, 2023.
Legal standard
Federal Rule of Civil Procedure 45 governs subpoenas to nonparties. The court explained that, although a subpoena ordinarily requires delivery to the named person, courts may allow alternative service when the method is reasonably calculated to provide timely actual notice. Courts generally require the serving party to obtain permission and show that it made diligent efforts to serve the witness personally.
Court’s analysis
The court found that Mikhaylova had made diligent efforts: she had attempted personal service on Booker 13 times at three locations. The court therefore permitted her to serve the subpoena by alternative means, including certified mail, email, and telephone.
The court declined to approve her earlier attempts retroactively. It stated that service must satisfy due-process requirements by being reasonably calculated to provide notice and an opportunity to object, and that Mikhaylova had not obtained permission before attempting alternative service. For the same reason, the court denied her request to compel Booker to appear at the March 3 deposition.
Disposition
The Letter-Motion was granted in part and denied in part. The court granted a final extension until February 24, 2023, for Mikhaylova to serve Booker by the permitted alternative means. Her request for retroactive approval of past service attempts was denied. By February 27, 2023, she had to file an affidavit of service or a letter stating that she could not serve Booker. The court stated that no further extensions would be granted and directed the clerk to close the motion.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.