Cypress Holdings, III, L.P. v. Sport-BLX, Inc.

Background

Counsel for Sport-BLX and George Hall asked for permission to use alternative methods to serve a deposition and document subpoena on non-party Dennis Nathan. The request was made by letter dated May 2, 2023.

Rule and Analysis

Federal Rule of Civil Procedure 45 says that serving a subpoena requires delivering a copy to the named person. The court noted that no Second Circuit case had decided whether Rule 45 requires personal service. It also noted that courts in the Southern District of New York have repeatedly held that Rule 45 does not require in-hand service or prohibit alternative service.

Alternative service is permitted when it is reasonably designed to ensure that the witness receives the subpoena and satisfies due process by giving the witness notice and an opportunity to object. A party ordinarily must also show that it first made a diligent attempt to serve the witness personally.

Sport-BLX and Hall made thirteen unsuccessful attempts to serve Nathan personally at both his residential and business addresses. Counsel for the other defendants had not agreed to accept service for Nathan. The court found that the proposed methods provided overlapping assurances that Nathan would receive notice at his residence or place of business and would have an opportunity to object.

Order

Judge Lorna G. Schofield ordered that Sport-BLX and Hall may serve Nathan through four alternative methods: (1) attaching the subpoena to the door of Nathan’s residence; (2) mailing it to his residential address by certified mail; (3) leaving it with a person of suitable age and discretion at his place of business; and (4) serving it on counsel for non-party Allen Cohen, whom the order describes as Nathan’s business associate.