United States District Court, D. Delaware
Elizabeth A. Sloan, Ballard Spahr LLP, Wilmington, DE -
attorney for Plaintiff.
Laurence v. Cronin & Jason Z. Miller, Smith, Katzenstein,
& Jenkins LLP, Wilmington, DE - attorneys for Petitioner
MEMORANDUM AND ORDER
NOREIKA, U.S. DISTRICT JUDGE
the Court is a motion (“the Motion”) to quash a
subpoena directed to non-party petitioner Justin Abernathy
(“Petitioner”). (D.I. 1-2). Petitioner also seeks
sanctions against the party requesting the subpoena -
Expansion Capital Group, LLC (“ECG”).
(Id.). ECG opposes the motion and request for
sanctions. (D.I. 5). For the reasons discussed below, the
Court grants Petitioner's motion to quash but denies his
request for sanctions.
is a Puerto Rican resident who owns a home at 23 W. Essex
Street, Fenwick Island, Delaware. (D.I. 3 ¶¶ 4-5).
Since he became a Puerto Rican resident in 2015, however,
Petitioner typically spends only a few days a year in
Delaware for family vacations. (Id.). An exception
to this arose in late 2017, when Petitioner and his family
began staying in their Delaware home while their residence in
Puerto Rico was being repaired after sustaining hurricane
damage. (D.I. 7 ¶¶ 6-7). By January 2019, however,
Petitioner avers that he had returned to living in Puerto
the plaintiff in an ongoing lawsuit in the District of South
Dakota (Civil Action Number 18-04135). (D.I. 5 at 2-3).
Petitioner is not a party to that suit, but ECG has sought -
and continues to seek - his deposition in order to obtain
information to be used in that suit. (Id.). Thus, on
August 9, 2019, ECG served Petitioner in Delaware with a
deposition subpoena, while he was at his Fenwick Island home.
(D.I. 3 Ex. A). The deposition was to take place in
Wilmington, Delaware on September 4, 2019. (Id.).
Petitioner objected, and the parties attempted to negotiate
alternative dates, methods, places, and conditions for the
deposition. (See, e.g., D.I. 3, Ex. D). They reached
an impasse, however, and Petitioner timely filed this motion
to quash on August 30, 2019. (D.I. 1).
argues the subpoena must be quashed because he is not a
resident of Delaware, he does not regularly conduct business
in person in Delaware, complying with the subpoena would
require him to travel beyond the geographical limits
specified in Federal Rule of Civil Procedure 45(c), and he
would face an undue burden if he had to travel from his
residence in Puerto Rico to be deposed in Delaware. (D.I. 2
at 1-2, 4-8).
responds that Petitioner does, in fact, regularly transact
business in Delaware because he mentioned in a November 2,
2017 email that he was in Delaware “for the time
being” while his home in Puerto Rico got “back in
shape, ” “pays taxes in Delaware for his home,
” “presumably purchases groceries, gas, and makes
other financial transactions while living in Delaware,
” has registered at least two vehicles in Delaware, and
has served as a registered agent for and/or owns several
business entities in Delaware. (D.I. 5 at 5-6). It also
contends that the Court should not quash the subpoena,
pursuant to Rule 45(d)(3)(C) of the Federal Rules of Civil
Procedure, because it does not present an undue burden for
Petitioner and ECG has a substantial need for his
testimony. (Id. at 6-8).
Rule 45(d)(3)(A) of the Federal Rules of Civil Procedure, the
Court is required, on timely motion, to quash or modify a
subpoena that “requires a person to comply beyond the
geographical limits specified in Rule 45(c).” Rule
45(c) limits the Court's subpoena enforcement powers by
requiring that a subpoena “may command a person to
attend” a trial, hearing, or deposition only if the
location of the trial, hearing, or deposition is:
(A) within 100 miles of where the person resides, is
employed, or regularly transacts business in person; or (B)
within the state where the person resides, is employed, or
regularly transacts business in person, if the person: (i) is
a party or a party's officer; or (ii) is commanded to
attend a trial and would not incur substantial
the plain language of rule 45(c) indicates that the court
cannot compel a witness to testify at a deposition when the
individual must travel more than 100 miles from a place of
residence, employment or regular business. See Hermitage
Glob. Partners LP v. Prevezon Holdings Ltd., C. A. No.
13-6326, 2015 WL 728463, at *4 (S.D.N.Y. Feb. 29, 2015)
(cited with approval in Tele Draulic, Inc. v. Hetronic
Int'l, Inc., Misc. No. 16-108-SLR, 2016 WL 3606775
at *2 (D. Del. June 30, 2016)); see also Fed. R.
Civ. P. 45(c); Regents of the Univ. of Cal. v.
Kohne, 166 F.R.D. 463, 464 (S.D. Cal. April 24, 1996)
(holding that in considering when a non-party witness may be
commanded by subpoena to appear, a court's only
consideration is “the burden on the witness of being
required to physically appear” (citations omitted)).
ECG's argument that the Court may order Petitioner's
appearance for deposition under Rule 45(d)(3)(C) based on its
need for his testimony, is therefore irrelevant if
Wilmington, Delaware is more than 100 miles from
Petitioner's place of residence, employment or regular
business. Fed.R.Civ.P. 45(d)(3)(A)-(C).
ECG presents some evidence that Petitioner is or was a
resident of Delaware, it does not argue that he is currently
a resident of the state. Moreover, Petitioner has presented
his Puerto Rican license, (D.I. 3, Ex. B) and voter
registration card (D.I. 7, Ex. A), and submitted an affidavit
swearing that he has resided in Puerto Rico since at least
January 2019, (D.I. 7 ¶¶ 6-7). None of the evidence
ECG has presented - i.e. property information listing
Petitioner as the owner and tax-payer for a home on Fenwick
Island, registration information for two vehicles associating
them with Petitioner and his Fenwick Island property,
documents indicating that he serves as a registered agent for
and/or owns several Delaware businesses, and a November 2,
2017 email from Petitioner indicating that he was
“living in Delaware for the time being until [his]
house in [Puerto Rico was] back in shape, ” (D.I. 5 at
5-6) - contradicts this. Indeed, the property information on
Petitioner's Fenwick Island home and the documents
indicating that Petitioner is a registered agent for and/or
owns several Delaware entities both list his address as
Dorado, Puerto Rico or Washington D.C. (D.I. 5,
Affidavit of Rachel R. Mentz Ex. D).
evidence also indicates that Petitioner is neither employed
in Delaware or regularly conducts business in person here.
The phrase “regularly conducts business in
person” as used in Rule 45(d)(3)(A) “means just
what it says.” Halliburton Energy Servs., Inc. v.
M-I, LLC, C. A. No. H06MC00053, 2006 WL 2663948 (S.D.
Texas Sept. 15, 2006) (citing Regents of the Univ. of
Cal. v. Kohne, 166 F.R.D. 463, 464 (S.D. Cal. 1996));
see also Tele Draulic, 2016 WL 3606775 at *2-4.
Petitioner has presented evidence - in the form of his
affidavits - that currently, and as of the time he was served
the subpoena, he visits Delaware only for a few days a year
for family vacations and does not conduct business in person
here. (E.g., D.I. 3 ¶ 6). Regularly vacationing
is not the same as regularly conducting business in person,
and ECG's purported rebuttal evidence - that Petitioner
was living here in November 2017, “presumably purchases
groceries, gas, and makes other financial transactions while
living in Delaware, ” pays taxes on his home in
Delaware, has registered at least two vehicles in Delaware,
and serves as a registered agent for and/or owns several
Delaware businesses - does not indicate that Petitioner is
employed or regularly conducts business in person here.
whether Petitioner was living in Delaware in November 2017
does not indicate whether he was employed or regularly
conducting business here in August 2019, and Petitioner has