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Dixon v. Bank of America, N.A.

United States District Court, S.D. Florida

August 9, 2019

ROY J. DIXON, JR. and BLANCHE L. DIXON, Plaintiffs,
v.
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

         THIS 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.

         I. Background

         On July 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.

         Thereafter, 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.

         II. Analysis

         Upon careful consideration, the Court finds that Fannie Mae's Motion is due to be denied on the following grounds.

         (A) Rule 26(f) does not prevent Plaintiffs subpoena.

         First, 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).

         Here, 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.

         (B) The subpoena was not improperly served.

         Second, 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.

         There 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).

         Here, 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 ...


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