United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUBSTITUTED
G. Edmunds, United States District Judge.
matter is before the Court on Defendant's motion for
substituted service of a deposition subpoena upon non-party
witness Kurt Orr. (Dkt. 17.) Defendant requests that the
Court permit Defendant to serve a deposition subpoena upon
Mr. Orr by physically tacking and posting the subpoena on the
door of Mr. Orr's business and home address, mailing the
subpoena by U.S. mail to that same address, and mailing the
subpoena by certified mail, return receipt requested to that
same address. Plaintiff did not file a response to the
motion. For the reasons set forth below, the Court GRANTS
filed this breach of insurance contract suit in state court,
but Defendant removed it to this Court. (Dkt. 1.) Plaintiff
alleges that Defendant failed to pay all compensable damages
arising out of a fire that occurred in its business.
(Id. at PgID 8-9.) After the fire, Plaintiff had
retained the services of Prime Adjusting Service, which
operates thru James and Kurt Orr, to assist Plaintiff in
estimating the amount of loss as a result of the fire and
filing a claim against Defendant for recovery of that amount.
(See dkt. 17-2.) Defendant retained the services of
a process server to personally serve Mr. Kurt Orr with a
deposition subpoena. (Dkt. 17-4.) However, despite three
attempts at personal service, the process server was unable
to effectuate service. (Id.) Defendant now asks the
Court to permit it to serve Mr. Orr using the proposed
Rule of Civil Procedure 45 governs subpoenas. Rule 45(b)(1)
states that “serving a subpoena requires delivering a
copy to the named person.” While some courts have held
that this provision of Rule 45 requires personal service,
other courts have held that it does not. See Oceanfirst
Bank v. Hartford Fire Ins. Co., 794 F.Supp.2d 752,
753-54 (E.D. Mich. 2011) (citing cases). Most of the judges
in this district that have considered the issue agree that
Rule 45 allows service of a subpoena by alternate means.
See, e.g., id. at 754 (finding support for
this position in the text of rule); see also Stallworth
v. City of Pleasant Ridge, No. 16-10696, 2017 U.S. Dist.
LEXIS 39986, at *4-5 (E.D. Mich. Mar. 21, 2017); Franklin
v. State Farm Fire & Cas. Co., No. 09-10947, 2009
U.S. Dist. LEXIS 90687, at *4 (E.D. Mich. Sept. 30, 2009);
Halawani v. Wolfenbarger, No. 07-15483, 2008 U.S.
Dist. LEXIS 100482, at *9 (E.D. Mich. Dec. 10, 2008).
However, the party seeking to serve a subpoena by alternate
means must first “demonstrate an inability to
effectuate [personal] service after a diligent effort.”
Oceanfirst Bank, 794 F.Supp.2d at 754. Moreover,
“[t]he alternate means must be reasonably calculated to
achieve actual delivery.” Id.
according to the process server's affidavit of
non-service, the process server attempted to serve the
deposition subpoena on Mr. Orr three times at the occupied
residential home found at 15146 Sylvia Court, Sterling
Heights, MI 48312. (Dkt. 17-4.) Defendant has filed documents
related to the adjustment of the fire loss that indicate this
is also the physical address for Prime Adjusting Service.
(See dkt. 17-5, PgID 151.) The service attempts were
made at varying times throughout the day; one attempt was on
the weekend and two were on weekdays. (Dkt. 17-4.) During the
second attempt, the process server heard movement and voices
from within the home, but there was no answer at the door.
(Id.) The process server also left a return call
card during the second attempt, but nobody called him.
on these facts, the Court finds that Defendant has diligently
attempted to personally serve the deposition subpoena on Mr.
Orr with no success. Moreover, the alternate method of
service set forth by Defendant is “reasonably
calculated to achieve actual delivery” of the subpoena.
See Oceanfirst, 794 F.Supp.2d at 754
(“[m]ailing by first-class mail to the actual address
of the intended recipient generally will suffice, especially
when the mailing is accompanied by posting at the known
address of the prospective witness”). Accordingly, the
Court grants Defendant's motion for substituted service.
reasons set forth above, Defendant's motion for
substituted service is GRANTED. Defendant may serve the
deposition subpoena on Mr. Orr by 1) physically tacking and
posting the deposition subpoena on the door of 15146 Sylvia
Court, Sterling Heights, MI 48132; 2) mailing the deposition
subpoena by U.S. mail to that same address; ...