United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on plaintiff Kendra Ross's
Motion for Order to Show Cause (Doc. 112). In it, plaintiff
asserts that several individuals have failed to comply with
or otherwise respond to subpoenas issued in October 2018. The
court entered an Order on January 4, 2019, explaining that it
had reservations about the service of those subpoenas and
directing plaintiff to file supplemental briefing about the
issue. Doc. 131. Plaintiff complied. Doc. 141. And, on
January 25, 2019, the court held a hearing on several
motions, including plaintiff's Motion for Order to Show
Cause. Docs. 157, 178. For reasons explained below, the court
denies plaintiff's motion without prejudice.
motion, plaintiff explains that she has tried to serve
subpoenas on Atif Abdel-Khaliq, Marvin McIntosh, Ephraim
Woods, and Griegory Moten. But, she asserts, these
individuals neither complied with nor responded to those
subpoenas. So, plaintiff moved the court for an order to show
cause why the court shouldn't hold those four individuals
in civil contempt. Mr. Moten, Mr. Woods, and Mr. McIntosh
responded to plaintiff's motion. Docs. 114, 115, &
116. And, Mr. Woods, Mr. Moten, Mr. McIntosh, and Dana
Peach-whom plaintiff served with a subpoena duces tecum-filed
responses to plaintiff's supplemental briefing about the
service of process issue that the court identified. Docs.
145, 146, 147, & 148.
January 25 hearing, Mr. Moten, Mr. McIntosh, Mr. Woods, Mr.
Abdel-Khaliq, and Ms. Peach appeared. Plaintiff clarified
that her motion applied only to Mr. Moten, Mr. McIntosh, Mr.
Woods, and Mr. Abdel-Khaliq. But, each of them asserted that
either they hadn't received plaintiff's subpoena or
that plaintiff had not served it properly. Doc. 157 at 27
(Tr. 26:25-27:10), 32 (Tr. 31:23-32:2), 39 (Tr. 39:2-9), 40
(Tr. 40:14-20). Also, the subpoena targets confirmed that
they had not responded to the subpoenas.
hearing arguments from plaintiff and the subpoenaed
individuals, the court concluded that “delivering a
copy [of the subpoena] to the named person”-the phrase
used by Rule 45-can include methods of service other than
direct, hand-over-hand personal service. See W. Res.,
Inc. v. Union Pac. R. Co., No. 00-2043-CM, 2002 WL
1822432, at *2 (D. Kan. July 23, 2002) (“[T]his Court
thus joins those holding that effective service under Rule 45
is not limited to personal service. The Federal Rules of
Civil Procedure should not be construed as a shield for a
witness who is purposefully attempting to evade service. . .
. [T]he alternative service . . . [must] reasonably insure
actual receipt of the subpoena by the witness[.]”
(citing King v. Crown Plastering Corp., 170 F.R.D.
355, 356 (E.D.N.Y. 1997))); Yost v. K. Truck Lines,
Inc., No. 03-2086-DJW, 2006 WL 8440101, at *2 (D. Kan.
Jan. 11, 2006) (“This Court cannot find that the
language of Rule 45(b)(1) mandates personal delivery on the
individual or that it prohibits alternative means of service.
The Court will only require that service be made in a manner
that reasonably insures actual receipt of the subpoena by the
trial witness.” (citing King, 170 F.R.D. at
the court also noted that witness fees and mileage must
accompany subpoenas. See Fed.R.Civ.P. 45(b)(1)
(“Serving a subpoena requires delivering a copy to the
named person and, if the subpoena requires that person's
attendance, tendering the fees for 1 day's attendance and
the mileage allowed by law. Fees and mileage need not be
tendered when the subpoena issues on behalf of the United
States or any of its officers or agencies.”). During
the hearing, the court confirmed a correct mailing address
for each of the four individuals plaintiff sought to depose.
And, during a recess in the hearing, plaintiff notified the
court that she successfully had served Mr. Woods, Mr. Moten,
Mr. McIntosh, and Mr. Abdel-Khaliq with new
the hearing, plaintiff made three requests that require
she asked the court to grant the Motion to Compel she had
filed in the Western District of Missouri, a case that was
transferred to this court after the motion's filing.
See Judgment Creditor's Motion to Compel
Non-Parties Ephraim J. Woods, Jr., Griegory L. Moten, Atif
Abdel-Khaliq, and Marvin L. Mcintosh to Appear for
Depositions, Ross v. Jenkins, No. 19-201 (D. Kan.
Jan. 10, 2019), ECF No. 1. Because plaintiff now has served these
individuals with new subpoenas, the court denies as moot this
Motion to Compel.
plaintiff moved the court to hold in contempt the four
individuals she had served with the subpoenas if they again
failed to appear for their scheduled depositions. This
case's docket indicates that these depositions proceeded
as scheduled. While Mr. Abdel-Khaliq orally moved to quash
the subpoena served on him during the recess in the hearing,
the court denied the motion. Doc. 157 at 57 (Tr. 57:8-19).
The court thus can identify no basis to hold any of the four
individuals served during the recess of the January 25
hearing in contempt.
plaintiff seeks to recover costs for future depositions
because of the expenses her counsel incurred in organizing
and traveling to the depositions that Mr. Woods, Mr. Moten,
Mr. McIntosh, and Mr. Abdel-Khaliq missed. This court has
recognized that Federal Rule of Civil Procedure
37(d)(1)(A)(i) “permits a court, on motion, to order
sanctions if ‘a party . . . fails, after being served
with proper notice, to appear for that person's
deposition.'” McKenzie v. Citibank (S.D.),
NA, No. 08-2510-KHV, 2009 WL 2776407, at *1 (D. Kan.
Sept. 1, 2009). “Instead of or in addition to these
sanctions, the court ‘must require the party failing to
act . . . to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses unjust.'” Id.
the court exercises its discretion and denies plaintiff's
request to recover deposition costs. Nothing in the record
indicates that plaintiff tendered witness and mileage fees to
the subpoenaed individuals, as Rule 45(b)(1) requires. During
the January 25 hearing, Mr. Abdel-Khaliq asserted that he
never received witness and mileage fees but said he had
received actual notice of the subpoena. Doc. 157 at 27 (Tr.
26:25-27:10). Mr. Woods and Mr. Moten explained that they
never received notice of the subpoenas. Id. at 32
(Tr. 31:23-32:2), 40 (Tr. 40:14-20). And, Mr. McIntosh
contended that he received notice of the subpoena only when a
colleague informed him that there was “something out
there for [him].” Doc. 157 at 39 (Tr. 39:2-9).
court concludes that, in these circumstances, it is unjust to
punish the individuals who failed to appear for the
depositions. But, the court now has confirmed addresses where
plaintiff can serve Mr. Woods, Mr. Moten, Mr. McIntosh, and
Mr. Abdel-Khaliq with subpoenas. And, the court warns Mr.
Woods, Mr. Moten, Mr. McIntosh, and Mr. Abdel-Khaliq: should
any of these individuals again fail to appear for a
deposition without properly challenging any new subpoenas,