United States District Court, D. New Jersey, Camden Vicinage
M. WILLIAMS UNITED STATES MAGISTRATE JUDGE
matter is before the Court by way of a motion of Defendant
Adventure Aquarium, LLC, requesting a finding of contempt and
sanctions against Frank D. Branella, Esq., for failure to
comply with a subpoena duces tecum. The Court has
considered the parties' submissions and decides the
motion pursuant to Fed.R.Civ.P. 78(b). For the reasons set
forth below, the Court will deny Defendant's motion
the course of discovery on this matter, Defendant obtained
multiple letters between Mr. Frank Branella, Esq., and
Plaintiff's doctors indicating that Mr. Branella had
represented Plaintiff in a previous personal injury claim.
(Def.'s Mot. [Doc. No. 23], ¶ 3.) Seeking to obtain
information on Plaintiff's previous claim, defense
counsel forwarded a subpoena to Mr. Branella by certified
mail, requesting his appearance and submission of all records
related to Plaintiff. (Id. ¶ 11.) This initial
subpoena was returned to Defendant as non-deliverable and
unable to be forwarded. (Def.'s Mot. [Doc. No. 23-5], Ex.
F.) In response, Defendant sent three additional letters over
a period of six months to an alternative address of Mr.
Branella. (Id. Ex. HI.) After receiving the first of
three follow-up letters, Mr. Branella left a telephone
message with defense counsel indicating that he had received
the subpoena and had no records to hand over. (Def.'s
Mot. [Doc. No. 23], ¶ 14.) Although he received the
subpoena, Mr. Branella neither appeared nor provided the
requested records. (Id. at ¶ 19.)
then filed this motion on May 17, 2018, asserting that Mr.
Branella was properly served and should be held in contempt
of court with sanctions for failure to comply with the
subpoena. (Def.'s Mot. [Doc. No. 23].) In addition,
Defendant requests $1, 000 for the costs associated with the
motion's preparation. (Id.) While Mr. Branella
did not respond to Defendant's motion, Plaintiff filed an
opposition stating that Mr. Branella suffered a stroke, is
permanently physically impaired, and has a partial loss of
vision - all of which have rendered him unable to draft a
response to Defendant's motion. (Pl.'s Opp'n
[Doc. No. 24], ¶ 7-11.) Plaintiff's opposition also
mentions that Defendant has alternatives to secure medical
records other than “harassing” Mr. Branella in
his ill state. (Id. At ¶ 12.) Defendant's
response denies any harassment, but does go on to question
Mr. Branella's failure to respond. (Def.'s Reply
[Doc. No. 25].)
party seeking to have an adversary held in civil contempt
must establish by clear and convincing evidence that (i)
there is a valid court order; (ii) the adversary had
knowledge of that order; and (iii) the adversary disobeyed
that order.” Trs. Of the Int'l Union v. J.T.
Cleary, Inc., No. 17-5962, 2018 U.S. Dist. LEXIS 69966,
at *2 (D.N.J. Apr. 26, 2018) (citing Roe v. Operation
Rescue, 919 F.2d 857, 868 (3d Cir. 1990)). Furthermore,
a party cannot be held in civil contempt or subjected to
sanctions if an issued subpoena was improperly served.
Alfamodes Logistics L.L.C. v. Catalent Pharma Solutions,
L.L.C., No. 09-3543, 2011 U.S. Dist. LEXIS 44537, at *2
(E.D. Pa. Apr. 35, 2011); Trs. Of the Int'l
Union, 2018 U.S. Dist. LEXIS 69988, at *4.
to Rule 45(b), “serving a subpoena requires delivering
a copy to the named person.” Fed.R.Civ.P. 45(b). Unlike
service of a summons and complaint, personal service is
required when serving a subpoena. Whitmer v. Lavida
Charter, Inc., No. 91-0607, 1991 U.S. Dist. LEXIS 17177
(E.D. Pa. Nov. 27, 1991). More specifically, courts within
the Third Circuit have interpreted the word
“delivering” in Fed.R.Civ.P. 45(b)(1) literally,
requiring that an individual is served personally. See
Trs. Of the Int'l Union, 2018 U.S. Dist. LEXIS
69966, at *4; N.J. Bldg. Laborers' Statewide Benefit
Funds v. General Civ. Corp., No. 08-6065, 2009 U.S.
Dist. LEXIS 78088 (D.N.J. Sept. 1, 2009); Parker v.
Doe, No. 02-7215, 2002 U.S. Dist. LEXIS 23498 (E.D. Pa.
Nov. 22, 2002); In re Johnson & Johnson, 59
F.R.D. 174, 177 (D. Del. 1973); see also Alfamodes,
2011 U.S. Dist. LEXIS 44537, at *2 (emphasizing the
longstanding literal interpretation of Fed.R.Civ.P.
service on Mr. Branella by certified mail does not comport
with the personal service requirement of Fed.R.Civ.P.
45(b)(1). Courts in this district have declined to hold a
non-party in contempt for failing to submit discovery when
“service by postal mail d[id] not comport” with
the Rule. Trs. Of the Int'l Union, 2018 U.S.
Dist. LEXIS 69966, at *3 (citing N.J. Bldg.
Laborers, 2009 U.S. Dist. LEXIS 78088, at *2).
Notwithstanding Defendant's “undoubtedly
frustrating experiences” to serve the subpoena, its
attempt to serve Mr. Branella by certified mail did not
constitute personal service. Alfamodes, 2011 U.S.
Dist. LEXIS 44537, at *2-3. Furthermore, Mr. Branella's
knowledge of the subpoena does not validate Defendant's
improper service. See Alfamodes, 2011 U.S. Dist.
LEXIS 44537, at *3 (“[E]vidence that indicates that at
least some of the nonparties are aware of the existence of
the subpoena . . . does not satisfy Fed. R. Civ.
P.45.”). For these reasons, Mr. Branella will not
be held in contempt of court or subjected to sanctions at
IT IS on this, the 1st day of
August, 2018, hereby
that Defendant's motion to hold Frank D. Branella, Esq.,
in contempt is DENIED WITHOUT
 The Court recognizes that some courts
have held that delivering a subpoena by certified mail may
satisfy the service requirements of Rule 45. See
e.g., New Jersey Building Laborers Statewide Ben.
Funds and Trustees Thereof v. Torchio Brothers, Inc.,
Civ. No. 08-552, 2009 U.S. Dist. LEXIS 10267, at *6 (D.N.J.
Feb. 11, 2009). However, courts have found that approach to
represent the minority view. See Alfamodes Logistics
Liab. Co., 2011 U.S. Dist. LEXIS 44537, at *5
(describing acceptance of certified mail as “a
minority-held position among the federal courts”);
Ricoh Co. v. Oki Data Corp., Civ. No. 09-694-SLR,
2011 U.S. Dist. LEXIS 90297, at *13 (D. Del. Aug. 15, 2011)
(noting “the majority rule of personal service as the