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Case 3:12-cv-00669-P Document 90 Filed 09/20/13 Page 1 of 8 PageID 870

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BOZE MEMORIAL, INC.,

Plaintiff,

V.

THE TRAVELERS LLOYDS
INSURANCE COMPANY,



Defendant.

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No. 3:12-cv-669-P

MEMORANDUM OPINION AND ORDER

Defendant The Travelers Lloyds Insurance Company (“Defendant” or

“Travelers”) has filed a motion to compel the deposition of Jackson Fulgham and a

request for expedited consideration of this motion. See Dkt. No. 84. Judge Solis has

referred this motion to the undersigned magistrate judge. See Dkt. No. 85. Defendant

reports that counsel for Plaintiff Boze Memorial, Inc. has stated that Plaintiff takes no

position on the motion and is neither opposed nor unopposed to the motion. See Dkt.

No. 84 at 4. The Court previously granted Defendant’s request for expedited

consideration, see Dkt. No. 86, and Fulgham, through his counsel, filed a response in

opposition, see Dkt. No. 88, and Defendant has filed a reply, see Dkt. No. 89. For the

reasons explained herein, Defendant’s motion to compel [Dkt. No. 84] is DENIED.

Background

The pertinent factual background is not disputed. On July 31, 2013, Defendant

caused Fulgham to be personally served with a subpoena for Fulgham’s testimony at

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a September 10, 2013 deposition at Plaintiff’s counsel’s office and, at the same time,

with a check for a witness fee and mileage allowance totaling $42.26 (representing a

$40.00 witness fee and $2.26 mileage allowance). See Dkt. No. 84-1 at 1-4. On

September 9, 2013, Fulgham’s counsel faxed Defendant’s counsel and Plaintiff’s

counsel a letter stating that service of a subpoena had not been effectuated on Fulgham

and that Fulgham would not attend any deposition on September 10, 2013. See id. at

5. The letter specified that “[t]he statutory attendance fee was not delivered to Mr.

Fulgham.” Id. Fulgham, in fact, failed to appear for a September 10 deposition. See id.

at 6-8.

Defendant then moved for an order compelling Fulgham to appear for his

deposition in the Dallas area prior to the October 1, 2013 discovery deadline in this

case. See Dkt. No. 84. Fulgham opposes the motion on the ground that Defendant failed

to serve Fulgham with the proper mileage allowance and that this failure renders

service invalid under Fed. R. Civ. P. 45. See Dkt. No. 88. In reply, Defendant

acknowledges that “it appears” that the mileage allowance it tendered to Fulgham

“may have been calculated incorrectly.” Dkt. No. 89 at 2. Defendant explains that “[t]he

mileage fee was prepared based on the location for previously noticed depositions,”

which was the office of Plaintiff’s prior counsel, and that, “when the check was obtained

for the witness fee and mileage fee, the fee calculation was not amended to account for

the new deposition location” at Plaintiff’s new counsel’s office. Id. at 2-3. Defendant

asks the Court to order Fulgham to appear for his deposition anyway, noting that, “[i]f

Fulgham had simply raised this issue at any time prior to the deposition, Travelers

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would have gladly tendered the remainder of the [properly calculated] mileage fee

(approximately $13.00), and is willing to tender such fee prior to Fulgham’s

deposition.” Id. at 3.

Legal Standards and Analysis

But Defendant’s requested result is not what the governing law provides and

dictates under these circumstance. Rule 45(b)(1) provides that “[s]erving 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.” FED. R. CIV. P. 45(b)(1). The United States Court of Appeals for the Fifth

Circuit has held that “[t]he conjunctive form of the rule indicates that proper service

requires not only personal delivery of the subpoena, but also tendering of the witness

fee and a reasonable mileage allowance. [T]he plain meaning of Rule 45[(b)(1)] requires

simultaneous tendering of witness fees and the reasonably estimated mileage allowed

by law with service of a subpoena.” In re Dennis, 330 F.3d 696, 704 (5th Cir. 2003)

(internal quotation marks omitted). “A deposition witness is entitled to a statutory fee

of forty dollars and a reasonable mileage allowance based on his mode and distance of

transportation” – that is, the reasonably estimated mileage allowed by law. Id. at 705.

The Court of Appeals provided guidance on how to resolve whether a particular

estimate of the required mileage allowance is “reasonable,” but that is not the issue in

this case. See id. This is not a case in which Defendant stands by its estimate of the

proper amount of a mileage allowance and in which the would-be deponent challenges

the reasonableness of that amount. Rather, Defendant does not claim that the mileage

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allowance that it tendered to Fulgham was reasonable for the actual location for which

its subpoena noticed Fulgham’s deposition. Defendant acknowledges an error in

calculating the mileage allowance in the check served on Fulgham. The mileage

allowance that it tendered – $2.26 – is simply not a reasonable estimate of the proper

mileage allowance that Fulgham claims for travel to the location for the deposition

noticed in the subpoena – $15.36. See Dkt. No. 88; Dkt. No. 89. Defendant does not

really dispute this point. The undersigned is well aware that this is a difference of just

over $13.00, but the Fifth Circuit has addressed a similar argument and rejected it

because Rule 45(b)(1) “contains no de minimis exception.” Dennis, 330 F3d at 705; see

also Aramark Corr. Servs., LLC v. County of Cook, No. MISC-12-111-KES, 2012 WL

3792225, at *1 (D.S.D. Aug. 31, 2012); (“Even though the difference between the

amount paid and the amount owed may be small, ‘rule 45(b)(1) contains no de minimis

exception.’” (quoting Dennis, 330 F.3d at 705)).

Defendant asserts that the Dennis decision is distinguishable because, in that

case, no mileage allowance was tendered. But the undersigned does not read the Fifth

Circuit’s holding so narrowly. Rather, the undersigned, like other courts following

Dennis, reads Dennis to dictate that a failure to tender the appropriate, required

mileage allowance– that is, an amount for the reasonably estimated mileage allowed

by law – renders service of a subpoena incomplete and precludes the Court from

compelling the deposition testimony. See Aramark, 2012 WL 3792225, at *2; accord

Kador v. City of New Roads, No. 07-682-D-M2, 2010 WL 3418265 (M.D. La. Aug. 26,

2010). The Court of Appeals resolved the issue in Dennis on the facts at issue there on

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the basis that, “when the subpoenaing party makes no attempt to calculate and tender

at least a reasonably estimated mileage allowance, he plainly violates rule 45(b)(1) and

leaves us with no factual basis from which to review the court’s decision,” and, “[t]hus,

a court does not abuse its discretion by quashing a subpoena where the subpoenaing

party tendered no mileage allowance whatsoever with the subpoena.” Dennis, 330 F.3d

at 705. But the Court of Appeals did not limit its discussion and analysis to

circumstances in which the subpoenaing party tendered no mileage allowance

whatsoever with the subpoena. Rather, the Fifth Circuit explained that a subpoena

may be invalid under its interpretation of Rule 45(b)(1) even where the subpoenaing

party tendered some mileage allowance but did so in an estimated amount that was

both incorrect and did not reasonably compl[y] with rule 45(b)(1),” based on the

multifactor analysis that the Court of Appeals laid out. Id. at 705 & n.12.

In this case, however understandable Defendant’s mistake may have been,

Defendant does not – and cannot – argue that the mileage allowance that it tendered

to Fulgham was a reasonably estimated mileage allowance for the location listed on the

subpoena itself, taking into account “factors such as the witness’s distance from the

deposition site, his common mode of travel, his expected mode of travel, the common

mode of travel in the community, advance planning between the subpoenaing party

and the witness, the expected length of the deposition, and so forth.” Id. at 705. While

the Court of Appeals explained in Dennis that a district court retains discretion to

determine, “if the subpoenaing party’s estimate is incorrect, whether it nevertheless

reasonably complies with rule 45(b)(1)” based on the non-exclusive factors listed in the

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previous sentence, the Court here is not faced with the decision of “whether a

subpoenaing party’s estimate of the mileage allowance is reasonable.” Id. at 705 nn.11

& 12. It was not, by Defendant’s (at least implicit) admission. Rather, the amount that

Defendant tendered to Fulgham for his mileage to the noticed location was simply the

result of a mistake, “[e]ven though the difference between the amount paid and the

amount owed may be small” – in absolute terms (roughly $13.00), though not in

relative terms (where the $2.26 tendered for mileage is only approximately 15% of the

$15.36 that Fulgham asserts should have been tendered).

Put another way, Defendant does not claim that it made an estimate of

Fulgham’s mileage based on the location of the noticed deposition and that, even if that

estimate was ultimately incorrect for some reason, its estimate was nevertheless

reasonable that mileage, accounting for Fulgham’s distance from the deposition site,

his common mode of travel, his expected mode of travel, the common mode of travel in

the community, advance planning between the subpoenaing party and the witness, and

the expected length of the deposition. See Dennis, 330 F.3d at 705. To the contrary,

Defendant acknowledges that, in tendering a $2.26 mileage allowance, it did not

estimate Fulgham’s mileage based on the actual location of the noticed deposition at

all but rather the tendered mileage allowance “was prepared based on the location for

previously noticed depositions,” which was the office of Plaintiff’s prior counsel, and,

“when the check was obtained for the witness fee and mileage fee, the fee calculation

was not amended to account for the new deposition location.” Dkt. No. 89 at 2-3.

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Further, while the undersigned has not located any governing authority that

makes clear whether tendering the remainder of the required fee prior to the noticed

deposition could cure a Rule 45(b)(1) defect, in this case Defendant did not do so and

still has not tendered the required amount. And, in any event, Rule 45(b)(1) “makes no

provision for serving a subpoena and promising to pay the fee later.” Tucker v.

Tangipahoa Parish Sch. Bd., Civ. A. No. 06-3818, 2007 WL 1989913, at *2 (E.D. La.

July 3, 2007); accord Aramark, 2012 WL 3792225, at *2.

Here, Defendant does not dispute Fulgham’s assertion that Rule 45(b)(1)’s

requirements

(however technical they may be) were not satisfied. And,

notwithstanding whether Fulgham has made the required personal service difficult to

accomplish, see Nunn v. State Farm Mut. Auto. Ins. Co., No. 3:08-cv-1486-D, 2010 WL

4258859, at *1 (N.D. Tex. Oct. 21, 2010), “[a]t this stage of this litigation, the subpoena

ad testificandum is invalid, and the court cannot force [Fulgham’s] compliance,”

Aramark, 2012 WL 3792225, at *2. Nothing in this Order, however, prevents

Defendant from seeking to depose Fulgham if it can do so by agreement or in

accordance with all of Rule 45’s requirements and consistent with other governing

rules and the Court’s other orders in this case. See Pride Family Brands, Inc. v. Carls

Patio, Inc., No. 12-21783-CIV, 2013 WL 4647216, at *7-8 (S.D. Fla. Aug. 29, 2013);

Walton v. Yates, No. 3:94-cv-2007-D, 1996 WL 734953, at *1 (N.D. Tex. Dec. 10, 1996).

Conclusion

Accordingly, Defendant’s motion to compel [Dkt. No. 84] is DENIED. The Clerk

of Court is directed to serve, by facsimile and first-class mail, a copy of this order on

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Kent Canada, as counsel for Jackson Fulgham, at the address and facsimile number

listed in the certificate of service in Dkt. No. 84 at 5 and by email to

[email protected]

SO ORDERED.

DATED: September 20, 2013

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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