In the Matter of Service of an Administrative Subpoena ( 2024 )

JASON M. FRIERSON United States Attorney 2|| Nevada Bar No. 7709 MISTY L. DANTE é ——————__—.--— - Assistant United States Attorney _¥___FILED ___RECEIVED | 501 Las Vegas Boulevard South, Suite 1100 ENTERED SERVED Oh 4|| Las Vegas, Nevada 89101 COUNSELPARTIES OF RECORI (702) 388-6336 5|| Misty. Dante@usdoj.gov Attorneys for the United States AUG | J 2024 6 CLERK US DISTRICT COURT 7 DISTRICT OF NEVADA BY:__ ANA DEPUT! 8 9 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 In the Matter of the Service of an 2:24-cv-01534-JCM-BNW Administrative Subpoena of: 12 United States’ Motion to Serve by Lindsay Garnett. Alternative Means 13 14 Under Federal Rule of Civil Procedure 45, the United States respectfully requests 15|| permission for the Veterans Administration Office of Inspector General to serve Lindsay 16|| Garnett by email. The United States has attempted personal service of Garnett seven times, 17|| courier signature required (UPS) service four times, and mailed service by certified return receipt mail, without success. The United States’ multiple attempts to locate and serve Mr. 19|| Garnett demonstrates service by email 1s warranted. Accordingly, the Court should grant 20|| the United States’ motion. I. Background On March 18, 2024, the VA OIG issued a subpoena for personal appearance for Mr. 23|| Lindsay Garnett on May 23, 2024, regarding an investigation of the Office of Health 24|| Inspections on an oversight matter.' On March 26, 2024, this subpoena was provided to the 25|| United States Marshals for personal service and attempted service on three separate dates.’ 26|| According to the USMS, on March 26, 2024, they called Mr. Garnett and he stated, “I’m 27 28|| | Exhibit (Ex.) 1-First Subpoena. 2 Ex. 2-USMS-285 Form Returned. 1 || not going to answer my door or accept paperwork.”* They attempted to serve Mr. Garnett 2 || two additional times on March 29 and April 1, 2024, but were unsuccessful.‘ 3 On April 4, 2024, the VA OIG sent service via UPS with a request for a Courier’s 4 ||signature. UPS attempted service on four different dates, April 5, 2024, at 11:41 am; April 5 2024, at 10:47 am; April 8, 2024, at 11:26 am; and on April 9, 2024, at 11:27 am.° All of 6 attempts for service were unsuccessful. 7 On April 10, 2024, the VA OIG sent service by certified return receipt mail. Mr. 8 || Garnett did not pick up the mail or sign for delivery. On May 17, 2024, the mail was 9 ||returned to the original sender as unclaimed.° 10 On May 24, 2024, the VA OIG issued a second subpoena for personal appearance 11 || for Mr. Lindsay Garnett on July 11, 2024.’ 12 After attempting service by USMS, UPS Courier, USPS certified mail, the VA OIG 13 || attempted service another four times by Reno/Carson Messenger Service, Inc. (RCMS). 14 April 24, 2024, service request was received by RCMS from the VA OIG.* RCMS 15 || attempted service on: 16 a. April 27, 2024, at 9:01 pm, 17 b. May 5, 2024, at 6:56 pm, 18 c. May 6, 2024, at 4:44 pm, and 19 d. May 30, 2024, at 8:13 pm.” 20 All attempts at service were unsuccessful. 21 77 22 \\/// 23 1\/// 24 5 ks es 96 ||° Ex. 3-UPS Record of Service for Courier Signature Delivery. ° Ex. 4-USPS Certified Mail Receipt and Tracking. 97 ||’ Ex. 5-Second Subpoena. § Ex 6-Declaration of Ryan S. Cole, Reno Carson Messenger Service, Inc., attached hereto 28 □□□ herein by reference as if fully set forth herein. 1 || Analysis A. Legal Authority 3 38 U.S.C. § 312 codifies some of the obligations given to the Inspector General of 4 ||the Department of Veteran Affairs. Under 38 U.S.C. § 312(d)(1)(A), the VA OIG is 5 || authorized to issue subpoenas, “...the Inspector General, in carrying out the provisions of 6 section, may require by subpoena the attendance and testimony of witnesses necessary 7 ||in the performance of functions assigned to the Inspector General by the Inspector General 8 || Act of 1978.” 9 Federal Rules of Civil Procedure (Fed. R. Civ. P.) Rule 81(5) allows the Fed. R. 10 || Civ. P. rules to apply to proceedings involving a subpoena. “These rules apply to 11 || proceedings to compel testimony...through a subpoena issued by a United States officer or 12 || agency under a federal statute, except as otherwise provided by statute, by local rule, or by 13 || court order in the proceedings.” 38 U.S.C. § 312(d) specifically allows for the Pica to 14 || be enforced by any appropriate district court of the United States. 15 Fed. R. Civ. P. Rule 45(b) governs civil subpoenas including the parameters related 16 the service of a subpoena. 17 B. Service by Email 18 Fed. R. Civ. P. Rule 45(b)(2) provides, in relevant part, that service of the subpoena 19 || in the United States “may be served at any place within the United States.” Rule 45(b)(1) 20 || indicates that service should be by personal service to the named person.'” However, in Rio 21 || Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002), the Court held that 22 || “trial courts have authorized a wide variety of alternative methods of service including 23 || publication, ordinary mail, mail to the defendant's last known address, delivery to the 24 || defendant's attorney, telex, and most recently, email.” The Ninth Circuit has “concluded 25 exhausting every other permissible means of service before seeking leave to utilize 26 || alternative means was not required. Instead, a party seeking a court order to serve by 27 See also Bd. of Trs. v. Noorda, No. 2:16-cv-00170-JAD-CWH, 2017 U.S. Dist. LEXIS 9g 230878 (D. Nev. Dec. 4, 2017) (Under Rule 45(b)(1), “the majority of courts understand ‘delivering’ to require personal service of the subpoena.”). | || alternative means need only demonstrate that the particular facts and circumstances 2 || warrant the court’s intervention.” Sata GmbH & Co. KG v. USA Italco Int'l Ltd., A N.Y. Co., 3 || No. 3:18-cv-00351-MMD-WGC, 2018 US. Dist. LEXIS 246761, at *8-9 (D. Nev. Oct. 24, 4 || 2018). Additionally, “Courts are more inclined to grant such alternative service where the 5 || serving party has provided sufficient evidence of its earlier diligence in attempting to 6 || effectuate personal service.” Bd. of Trs. v. Noorda, No. 2:16-cv-00170-JAD-CWH, 2017 U.S. 7 || Dist. LEXIS 230878, at *4 (D. Nev. Dec. 4, 2017). 8 Here, the United States has attempted personal service of Garnett seven times, 9 || courier signature required (UPS) service four times and has also mailed service by certified 10 || return receipt mail, without success. Furthermore, the United States attempted to find 11 || additional addresses for Garnett by conducting multiple skip traces and searching in 12 || multiple open-source databases, without success.'' When the USMS first attempted to 13 || serve Garnett, they reached out to him by phone, and he responded that he was not going 14 || to “...answer my door or accept paperwork.” !” 15 The United States seeks to serve Garnett by email. The United States will email the 16 || subpoena to an email address that Garnett has used previously to send messages to the 17 || United States. Given that Garnett has responded to the United States in the past at this 18 || email address, service by email at this address is reasonably calculated to apprise Garnett of 19 || the subpoena. 20 Respectfully submitted August 13, 2024. JASON M. FRIERSON 21 United States Attorney /s/_ Misty L. Dante 22 MISTY L. DANTE Assistant United States Attorney 24 IT 1S SOLORDERED: 25 LZ gw le Wr ERA, UNITED STATES MAGISTRATE JUDGE ° DATED: September 9, 2024 27 28 pe 2