The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHARON LEWIS, CIVIL ACTION
Plaintiff
VERSUS NO. 21-198-SM-RLB
BOARD OF SUPERVISORS OF LOUISIANA
STATE UNIVERSITY AND AGRICULTURAL
AND MECHANICAL COLLEGE,
Defendant
ORDER
Before the Court is Plaintiff Sharon Lewis’s (“Lewis”) Second Motion to Serve
Subpoena for Deposition of Leslie Miles on Peter Ginsberg, Esq., Attorney for Leslie
Miles, on Behalf of Leslie Miles.1 The motion is opposed.2 Because the Fifth Circuit
interprets Rule 45 of the Federal Rules of Civil Procedure to forbid alternative service of
a Rule 45 subpoena, the Court must DENY the motion.
On June 19, 2023, Lewis filed her first motion asking this Court to order Mr.
Ginsberg to accept the subpoena on behalf of Mr. Miles.3 Mr. Miles opposed that motion.4
With the motion, Lewis’s counsel, Albert Van-Lare, provided a lengthy affidavit detailing
his efforts to locate and serve Mr. Miles.5 The Court dismissed the motion without
prejudice.6 The Court took no position on whether the Fifth Circuit permits alternative
service of a subpoena under Rule 45, but provided until August 11, 2023, for Lewis to
make additional efforts to serve Mr. Miles and refile, at which time the Court would
1 R. Doc. 388.
2 R. Doc. 394.
3 R. Doc. 354.
4 R. Doc. 358.
5 R. Doc. 354-1.
6 R. Doc. 378.
consider the motion.’ Lewis timely refiled.8 To Lewis’s credit, her efforts, and those of Mr.
Van-Lare, are more extensive than those preceding her first motion.9 Still, Lewis has not
located Mr. Miles, and he has not been personally served with the subpoena.
Fifth Circuit precedent, which binds this Court, unequivocally holds that service of
a Rule 45 subpoena “is improper if the person himself is not served with a copy of the
subpoena.”!° Even more, “service of said subpoena on plaintiffs counsel, as opposed to
the plaintiff himself,”’—exactly what Lewis seeks in this case—"renders such service a
nullity.”11
The Court is sympathetic to the troubles Lewis has faced in her attempts to locate
and serve Mr. Miles. Many litigants seeking alternative service under Rule 45 have
encountered the same.‘2 Nevertheless, “[t]he fact that the witness has made the required
personal service difficult to accomplish does not grant the district court the authority to
waive the requirements of Rule 45(b).”%3
Accordingly;
IT IS ORDERED that the motion is DENIED.
New Orleans, Louisiana, this 25th day of August, 2023.
SUSIE sion
UNITED STATES DISTRICT JUDGE
7R. Doce. 378.
8R. Doc. 388.
9 See id; R. Doc. 389.
10 Weiss v. Allstate Ins. Co., 512 F.Supp.2d 463, 466 (E.D. La. 2007) (citing Harrison v. Prather, 404 F.2d
267, 273 (5th Cir.1968)); see also In re Dennis, 330 F.3d 696, 704 (5th Cir.2003) (noting that “proper
service” under Rule 45 “requires ... personal delivery of the subpoena”).
1 Harrison, 404 F.2d at 273.
12 See, e.g., Ferrara v. 4JLJ, LLC, 2:15-CV-182, 2016 WL 4800891 (S.D. Tex. Sept. 14, 2016) (fifteen
attempts to serve); Bd. of Regents of U. Tex. Sys. v. Terry Cardell Reynolds, 1:18-CV182-RP-ML, R. Doc.
48 (W.D. Tex. Apr. 29, 2019) (denying alternative service under Rule 45 even where target person’s
behavior “indeed appear[ed] to be calculated to evade service”).
13 Lexington Ins. Co. v. Harvia Oy, 2013 WL 12330197, at *1 (N.D. Tex. Nov. 14, 2013) (cleaned up).