The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TECHTRONIC INDUSTRIES COMPANY
LIMITED, and TECHTRONIC INDUSTRIES
FACTORY OUTLETS, INC.,
Plaintiffs,
v. Case No. 8:23-cv-01734-CEH-AEP
VICTOR BONILLA,
Defendant.
/
ORDER
This matter comes before the Court upon Plaintiffs’ Unopposed Expedited
Motion for Alternate Service of Subpoena Duces Tecum and Deposition Subpoena
on Non-Party Joel Schleicher. (Doc. 70). By way of their motion, Plaintiffs seek an
Order from this Court permitting them to serve Ms. Schleicher the above-referenced
subpoenas through five alternative means. (Doc. 70, at 8–9). Defendant does not
oppose the motion. (Doc. 70, at 9). Accordingly, for the reasons stated below, the
motion is granted.
I. Background
This case arises from a defamation dispute surrounding Defendant Victor
Bonilla’s publication of two short seller reports. (Doc. 1). Plaintiffs maintain that in
discovery Defendant produced documents indicating he consulted Mr. Schleicher,
a former board director of Plaintiffs who currently serves as a member of the
Governing Board of the Southwest Florida Water Management District, when
preparing his first report. (Doc. 70 at 1-2). Accordingly, Plaintiffs seek to depose
Mr. Schleicher and retain certain documents from him. (Doc. 70, at 2). However,
Mr. Schleicher has continually evaded Plaintiffs’ service attempts.
On March 21, 2024, process server Raymond Mitchell made two separate
attempts to serve Mr. Schleicher in person at his residence and left “contact cards”
on both of Mr. Schleicher’s front doors. (Doc. 70-2). On March 29, 2024, Mr.
Mitchell made two additional service attempts at Mr. Schleicher’s residence and left
Mr. Schleicher a voicemail requesting that Mr. Schleicher contact him. (Id.). On
April 17, 2024, process server Adrienne Shavers attempted to serve Mr. Schleicher
and left the subpoena with Virginia Singer, a board administrator for Southwest
Florida Water Management District, who identified herself as “the person
authorized and designated to accept service at the request and per the policy of [Mr.]
Schleicher.”1 (Doc. 70-4).
Following Mr. Schleicher’s failure to respond to the subpoena, Plaintiffs sent
a copy of the subpoena and a letter to Mr. Schleicher’s residence via certified mail.
(Doc. 70-5). The package was signed for by Mr. Schleicher’s wife, Diane Schleicher.
(Doc. 70-7). On June 13, 2024, Plaintiffs received a letter from Mr. Schleicher’s
identified counsel, Kevin Kilcullen, who indicated that: 1) Mr. Schleicher had not
been properly served; 2) Mr. Schleicher would comply with Plaintiffs’ request once
properly served; and 3) Mr. Kilcullen was not authorized to accept service on Mr.
Schleicher’s behalf. (Doc. 70-8). Accordingly, Plaintiffs attempted service at Mr.
Schleicher’s residence on two additional dates to no avail. (Doc. 70-10). In a final
attempt, Plaintiffs contacted Mr. Kilcullen via email inquiring as to whether Mr.
Schleicher would agree to accept service through Mr. Kilcullen or another
reasonable means but received no response. (Doc. 70-11).
Plaintiffs now request the Court allow alternative service through five
alternative methods to include: 1) firmly tacking and posting the subpoenas at Mr.
Schleicher’s residence; 2) sending the subpoenas via Federal Express and U.S. mail
to Mr. Schleicher’s residence; 3) sending the subpoenas via Federal Express and
U.S. mail to the Mr. Kilcullen’s address; 4) emailing the subpoenas to the three
email addressed known to be associated with Mr. Schleicher; and 5) emailing the
subpoenas to the email address for Mr. Kilcullen. (Doc. 70, at 8).
II. Legal Analysis
Service of a subpoena is governed by Rule 45. To properly effectuate service
under Rule 45, the moving party must “deliver[] a copy to the named person.” Fed.
R. Civ. P. 45. The majority position in the Eleventh Circuit is that personal service
is not required by Rule 45. See Saadi v. Maroun, No. 8:07-CV-1976-SCB-JSS, 2021
WL 8650800, at *1 (M.D. Fla. Mar. 22, 2021) (providing an extensive list of cases
supporting same). Instead, the key inquiry is whether service was “reasonably
calculated to ensure receipt of the subpoena by the witness.” Id. (quoting TracFone
Wireless, Inc. v. SCS Supply Chain LLC, 330 F.R.D. 613, 616 (S.D. Fla. 2019) (internal
quotations omitted)). Nevertheless, where personal service cannot easily be
obtained, a party may preemptively seek an order permitting alternative means of
service. Id. at *2. Here, based on the record before this Court, Plaintiffs have
demonstrated that Mr. Schleicher is effectively evading service and, based on the
communications from his counsel, aware of the subpoenas and Plaintiffs’ attempts
at contact. Thus, this Court finds it appropriate to authorize service through
alternative means and finds that Plaintiffs’ proposed methods are “reasonably
calculated to ensure receipt of the subpoena by the witness.” See Diaz v. Chapters
Health Sys., Inc., No. 8:18-cv-03052-T-36SPF, 2020 WL 203157, at *3 (M.D. Fla.
Jan. 6, 2020) (finding that subpoenas could be served by Federal Express, in
accordance with recent authority from district courts in the Eleventh Circuit);
Rainey v. Taylor, No. 18-24802-mc, 2019 WL 1922000, at *2 (S.D. Fla. Apr. 30,
2019) (finding that electronic service of a subpoena was proper after diligent
attempts at personal service failed and the recipient received actual notice of the
subpoena); S.E.C. v. Rex Venture Grp., LLC, No. 5:13-mc-004-WTH-PRL, 2013 WL
1278088, at *2 (M.D. Fla. Mar. 28, 2013) (finding proper service of subpoena by
Federal Express and certified mail); Codrington v. Anheuser-Busch, Inc., No. 98-2417-
CIV-T-26F, 1999 WL 1043861, at *1 (M.D. Fla. Oct. 15, 1999) (finding that service
of a subpoena via first class U.S. Mail was proper under Rule 45).
Accordingly, it is ORDERED:
1. Plaintiffs’ Unopposed Expedited Motion for Alternate Service of Subpoena
Duces Tecum and Deposition Subpoena on Non-Party Joel Schleicher (Doc.
70) is GRANTED.
2. Plaintiffs may serve a deposition subpoena and subpoena duces tecum on
Mr. Schleicher through the following method:
1) firmly tacking and posting the subpoenas at Mr. Schleicher’s
residence;
2) sending the subpoenas via Federal Express and U.S. mail to Mr.
Schleicher’s residence;
3) sending the subpoenas via Federal Express and U.S. mail to the Mr.
Kilcullen’s address;
4) emailing the subpoenas to the three email addresses known to be
associated with Mr. Schleicher; and
5) emailing the subpoenas to the email address for Mr. Kilcullen
3. Plaintiffs shall also serve a copy of this Order on Mr. Schleicher with the
subpoena, in the same manner set forth herein.
DONE AND ORDERED in Tampa, Florida, on this 23rd day of July 2024.
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United Sfates Magistrate Judge
cc: Counsel of Record