United States District Court, S.D. Florida
ROY J. DIXON, JR. and BLANCHE L. DIXON, Plaintiffs,
BANK OF AMERICA, N.A., as successor by merger to BAC HOME LOANS SERVICING, LP, Defendant.
ORDER DENYING FEDERAL NATIONAL MORTGAGE
ASSOCIATION'S MOTION TO QUASH SUBPOENA [DE 70]
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court upon non-party Federal
National Mortgage Association's ("Fannie Mae")
Motion to Quash Subpoena ("Motion") [DE 70]. This
matter was referred to the undersigned by United States
District Judge Kenneth A. Marra. See DE 71.
26, 2019, the Court entered an Order [DE 72], stating that
Fannie Mae was not required to produce any documents in
response to the subpoena until the Motion was fully briefed
and the Court had the opportunity to rule on the Motion by
further Order. The Court stayed any production pursuant to
the subpoena pending the completion of briefing and further
Court Order. Id.
the pro se Plaintiffs, Roy J. Dixon, Jr., and
Blanche L. Dixon ("Plaintiffs") filed a Response
and Memorandum of Law in Opposition to Third Party Fannie
Mae's Motion to Quash Subpoena for Production of
Documents [DE 75]. Plaintiffs also filed the Declaration of
Roy J. Dixon Jr. [DE 76] in support of their Response. No.
timely reply was filed; however, Fannie Mae filed a
"Response to This Court's July 26, 2019 Order
Regarding Non-Party's Motion to Quash Subpoena [DE 70]
and Staying Production Pursuant to the Subpoena Pending
Further Court Order [Docket No. 72]." [DE 80]. This
matter is now ripe for review as the Court has carefully
reviewed the Motion, Response, and Declaration, as well as
the entire docket in this case.
careful consideration, the Court finds that Fannie Mae's
Motion is due to be denied on the following grounds.
Rule 26(f) does not prevent Plaintiffs subpoena.
Fannie Mae argues that the subpoena was improperly issued
before the parties in the case had conferred as required by
Rule 26(f). However, Rule 26(d)(1) states as follows: "A
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except in a
proceeding exempted from initial disclosure under Rule
26(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order." Fed.R.Civ.p. 2');">p. 26.
"Plaintiff may conduct discovery before a Rule 26(f)
discovery conference if the Court finds that good cause
exists for the discovery." Manny Film, LLC v.
Doe, No. 15-80306-CIV, 2015 WL 2411201, at *1 (S.D. Fla.
May 20, 2015); Fed.R.Civ.p. 2');">p. 26(b).
the case has been pending for approximately seven months,
and, according to Plaintiffs' Response [DE 75, p. 2');">p. 2] and
the attachments thereto, Plaintiffs have been attempting to
obtain their mortgage loan records since March 2017. The
Court finds good cause for the issuance of a subpoena before
the Rule 26(f) conference, which does not appear to have even
been ordered to take place yet.
The subpoena was not improperly served.
Fannie Mae contends that the subpoena should be quashed
because it was not properly served. In its Motion, Fannie Mae
also acknowledges that courts are generally split on the
issue of whether Rule 45 requires subpoenas to be personally
served. [DE 70, p. 2');">p. 2, f.n. 1]. Fannie Mae explains that,
"[w]hile several recent decisions of this Court have
held that subpoenas may be served via means other than
personal service, most of these decisions are either upon a
motion by the serving party or involve multiple attempts by
the serving part[y] to effect personal service, neither of
which is applicable in this matter." Id.
is clearly conflicting authority on the issue of whether
personal service of a subpoena is required. See Rainey v.
Taylor, No. 18-24802-MC, 2019 WL 1922000, at *2 (S.D.
Fla. Apr. 30, 2019). However, recent decisions in this
District have found that Rule 45 does not require personal
service, but it does require service that is reasonably
calculated to ensure actual receipt of the subpoena. See
e.g., TracFone Wireless, Inc. v. SCS Supply Chain LLC,
330 F.R.D. 613, 616 (S.D. Fla. 2019); Rainey v.
Taylor, 2019 WL 1922000, at *2; Bozo v. Bozo,
No, 2013 WL 12128680, at *l-2 (S.D. Fla. Aug. 16, 2013).
the subpoena was addressed to the executive vice president of
Fannie Mae, and the certified mail receipt was signed by
Tujuanna Williams, a vice president at Fannie Mae. The Court
finds that, as a vice president at Fannie Mae actually signed
for the certified mail that contained the subpoena, the
service of the subpoena was clearly reasonably calculated to
ensure actual receipt of the subpoena. Moreover, the subpoena
made its way to Fannie May's legal counsel, who then
filed the pending Motion. The Court will not place form ...