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Surbella v. Foley

October 20, 2006

PATRICIA SURBELLA, ET AL., PLAINTIFFS,
v.
MARK FOLEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Watson

ORDER

On September 25, 2006, defendants filed a motion to quash subpoenas issued to three witnesses, Noel Alden, Dorothy Foley, and Steve Stroehl. Defendants asserted that the subpoenas were not issued sufficiently timely to comply with the court-ordered discovery cut-off date of September 1, 2006.

In reply, defendants addressed only one of the three subpoenas identified in the motion to quash, the one issued to Mr. Stroehl, but also presented argument as why a deposition subpoena issued to a Marianne Urse should not be quashed. Plaintiffs argue that the subpoenas were timely issued and, in any event, any delay in taking these depositions was occasioned by the defendants' refusal to cooperate in agreeing on the deposition dates prior to September 1, 2006. A reply brief has been filed, and the record also contains returns of service with respect to the Alden, Foley, and Stroehl subpoenas. Although plaintiffs never filed a return of service with respect to the Urse subpoena, a copy of it is attached to defendants' reply brief. For the following reasons, the Court concludes that, with respect to the only issue before it, the subpoena issued to witness Stroehl was not issued in accordance with the discovery cutoff date and that the Stroehl deposition should not go forward.

As an initial matter, the Court notes that defendant did not move to quash the subpoena issued to Ms. Urse. In fact, she apparently was willing to comply with the subpoena and, according to an affidavit attached to the reply memorandum, traveled to Columbus on September 15, 2006 to attend that deposition, but was told by counsel for plaintiffs not to attend. It is unclear whether any effort has been made to reschedule the deposition, whether Ms. Urse (whose name is now Tarnowski) would object to a rescheduling of the deposition, and whether other procedural matters relating to the deposition have been addressed. The Court notes, for example, that defendants assert they were never served with a copy of the subpoena; that there is no evidence that a deposition notice was ever issued; that the subpoena was served by certified mail, which is ordinarily not a permissible means of service of a deposition subpoena, see Fed.R.Civ.P. 45(b)(1); that even the certified mail service of the subpoena apparently did not occur until after the discovery cutoff date; and that the subpoena did not allow a reasonable time for compliance or give eleven days notice to defendants that a deposition was being taken. Given all these deficiencies, coupled with the fact that the motion to quash does not address this subpoena, the Court concludes that there are no issues currently ripe for decision concerning the deposition subpoena. However, should further efforts be made to compel Ms. Tarnowski to attend a deposition based upon the subpoena which was served, and should an appropriate motion be filed, the Court will revisit the issue.

With respect to the subpoena served on Mr. Stroehl, the Court notes, first, that the subpoena was issued on August 30, 2006 and set a date for a deposition of September 14, 2006. Although the subpoena was issued during the discovery period, the date selected for deposition is beyond September 1, 2006. Therefore, on its face the subpoena violates the discovery cutoff.

There also appears to be an issue concerning the validity of service of the subpoena, although that might be an issue more properly raised by the witness than by the defendants. The process server declared under penalty of perjury that residence service of the subpoena was made by the delivery of the subpoena to Mr. Stroehl's daughter, Lauren. Ordinarily, residence service is not good service of a deposition subpoena. Rather, personal service is required under Rule 45(b)(1). See, e.g., Klockner Namasco Holdings v. Daily Access.com, 211 F.R.D. 685 (N.D. Ga. 2002). Further, Mr. Stroehl has submitted an affidavit stating that the service could not have occurred on the date set forth on the return because his daughter was only at his residence between September 8, 2006 and September 11, 2006. Be that as it may, because the subpoena was not served in a timely fashion to permit the deposition to be taken during the discovery period, the defendants' objection to the deposition is well-taken.

Plaintiffs contend, however, that they were unable to schedule Mr. Stroehl for a deposition prior to September 1, 2006 because of uncooperativeness on the part of the defendants. In their memorandum, plaintiffs refer the Court to "Exhibit 1" as support for this assertion. However, there is no exhibit attached to the response, nor have plaintiffs filed any affidavits or other documentation to substantiate the factual assertions in their response. Under these circumstances, the Court cannot treat the assertions as factual. On the record before the Court, the only matters apparent are that the deposition subpoena was served on Mr. Stroehl on either September 1 or September 8, 2006; that the method of service did not comply with Rule 45; and that the deposition was scheduled to take place two weeks after the discovery cutoff date. Under those circumstances, the Court has no alternative but to quash the subpoena.

Based upon the foregoing, defendants' motion to quash (#62) is granted as follows. The Court quashes the subpoena issued to Steve Stroehl.

Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.

This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.

Terence P. Kemp United States Magistrate Judge

20061020

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