MOTION – ALTERNATIVE SERVICE OF FRCP 45 SUBPOENA Page 1 of 5

Carl D. Crowell, OSB No. 982049

email: carl@crowell-law.com

Drew P. Taylor, OSB No. 135974

email: drew@crowell-law.com

CROWELL LAW

P.O. Box 923

Salem, OR 97308

(503) 581-1240

Of attorneys for plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DALLAS BUYERS CLUB, LLC., 

Plaintiff,

v.

DOE-73.11.30.186,

Defendant.

 Case No.: 3:15-cv-01042-AC (Lead Case)

PLAINTIFF’S AMENDED MOTION TO 

PERMIT ALTERNATIVE OR MAIL

FRCP 45 SERVICE ON NON-PARTY; 

EXHIBITS 1 & 2.

DALLAS BUYERS CLUB, LLC., 

Plaintiff,

v.

DOE-73.25.103.153,

Defendant.

 Case No.: 3:15-cv-01043-AC (Trailing case)

PLAINTIFF’S AMENDED MOTION TO 

PERMIT ALTERNATIVE OR MAIL 

FRCP 45 SERVICE ON NON-PARTY; 

EXHIBITS 1 & 2.

LR 7-1 Conferral

The identity of the defendant is unknown. The subscriber in this matter is non-responsive 

and appears to be avoiding service, necessitating this motion.

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PLAINTIFF’S AMENDED MOTION TO PERMIT ALTERNATIVE OR MAIL 

FRCP 45 SERVICE ON NON-PARTY

Pursuant to the Court’s Order (Dkt. 18), plaintiff hereby submits this Amended Motion to 

Permit Alternative or Mail FRCP 45 Service on Non-Party. Having been granted leave to issue a 

subpoena to the subject non-party subscriber in this matter, (Dkt. 6) and after good faith attempts 

at personal service, plaintiff now moves the Court for an order permitting plaintiff to effect 

service of its FRCP 45 subpoena by U.S. Mail, delivery confirmation, or such other manner as 

the Court deems proper to provide delivery and notice. A proposed subpoena is filed herewith as 

Exhibit 1.

This motion is supported by the co-filed declaration of counsel.

MEMORANDUM

I. Background 

In accord with the Order of this Court (Dkt. 6) plaintiff has subpoenaed Internet Service 

Provider (“ISP”) Comcast, which has successfully identified a singular subscriber assigned the 

IP address used by the Doe defendant. Letters were dispatched to the identified subscriber, but 

there has been no response. Decl. Counsel, ¶ 3. Plaintiff then sought and was granted leave to 

issue an FRCP 45 subpoena to the subject subscriber. Dkts. 9, 11. 

Service of the FRCP 45 subpoena on the subscriber was unsuccessful. A report from 

plaintiff’s service agent reads: 

9/27/15 at 2:56 pm: I spoke with Tine, a resident of 3 months, who said that she does not 

know who defendant is and receives no mail for him. 

Decl. Counsel ¶ 4.

Plaintiff then ordered a postal search, which was returned marked: “Deliverable as 

address; No change of address order on file.” Decl. Counsel ¶ 5, 6. Plaintiff subsequently 

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ordered a skip trace search, the results of which indicate that the address at which plaintiff’s 

process servers attempted service and that Comcast identified as the subscriber’s address, is 

current for the subscriber up through November 30, 2015. Decl. Counsel ¶ 7, Exhibit 2. The 

skip trace search also revealed multiple potential phone numbers for the subscriber, one of which 

an individual answered but refused to confirm his identity and hung up when plaintiff’s counsel 

explained the nature of the call. A subsequent phone call from plaintiff’s counsel was not 

answered and a message was left for the subscriber. Decl. Counsel ¶ 8.

Plaintiff has sent several mailings to this address, including: a copy of Plaintiff Motion to 

Consolidate Cases (Dkt. 8.) an initial letter dated August 26, 2015, a follow up letter dated 

September 2, 2015, and a copy of Plaintiff’s Motion for Leave to Issue an FRCP 45 Subpoena. 

Dkt. 10. None of plaintiff’s mailings have ever been returned and there has been no indication 

that the address is not valid. Decl. Counsel ¶ 9.

With clear notice of this issue to the subscriber in the initial notice by Comcast, the 

multiple letters and service through mail of plaintiff’s prior motions (Dkt. 8, 10), and phone call 

by plaintiff’s counsel, it is clear that the subject subscriber is now actively evading service of 

plaintiff’s FRCP 45 subpoena. 

As such, plaintiff now requests leave to serve the subject FRCP 45 subpoena, in the form 

filed as Exhibit 1, by U.S. Mail, delivery confirmation, or other means as directed by the court to 

effect notice and delivery for service.

II. FRCP 45 Service Standards

Service standards for FRCP 45 are somewhat vague. (“Serving a subpoena requires 

delivering a copy to the named person...” FRCP 45 (b)(1)) Though often interpreted as 

requiring personal and direct delivery, at least one court in this District has noted in passing that 

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personal service is not required by FRCP 45 and that use of a service such as Federal Express 

may be proper. NxSystems, Inc. v. Monterey Cnty. Bank, 12-cv-00905-ST (D. Or., Sept. 17, 

2012), citing Western Resources, Inc. v. Union Pacific R.R. Co., No. 00-cv-20430-CM, (D Kan 

July 23, 2002); see also Green v. Baca, 02-cv-20474,(CD Cal Jan. 31, 2005) (agreeing that 

FRCP 45 is not limited to personal service). The 7th Circuit has ruled expressly on this point 

and allows service by U.S. Mail. Ott v. City of Milwaukee, 682 F.3d 552, 557 (7th Cir., 

2012)(“An agent of the postal service surely qualifies as a ‘person at least 18 years of age and 

not a party.’”). Note Hall v. Sullivan, 229 F.R.D. 501 (D. Md. 2005) (denying motion to quash 

FRCP 45 subpoena served by mail but and discussing split of authority, including Chima v. U.S. 

Department of Defense, 23 Fed. Appx. 721 (9th Cir. 2001) (unpublished opinion refusing to 

compel when service was by mail.)).

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To the extent this issue has been analyzed there is a split in authority with apparent 

balancing factors being the equities of the parties and the specifics and circumstances for each 

case. While plaintiff does not maintain that an FRCP 45 subpoena is always properly served by 

U.S. Mail or Federal Express, plaintiff moves the Court to follow the guidance of Dallas Buyers 

Club, LLC v. Doe, 6:15-cv-00221-AC (D. Or., May 22, 2015) and NxSystems, Inc. v. Monterey 

Cnty. Bank, 12-cv-00905-ST (D. Or., Sept. 17, 2012) and other courts and find that where 

reasonable efforts to effect personal service have been made and there are indicia that the party 

to be served is evading service, such as in this case, that service of an FRCP 45 subpoena by U.S. 

Mail with delivery confirmation shall constitute “delivering a copy to the named person” in 

accordance with FRCP 45.

DATED: December 3, 2015. Respectfully submitted,

CROWELL LAW

s/ Drew P. Taylor 

Carl D. Crowell, OSB No. 982049

email: carl@crowell-law.com

Drew P. Taylor, OSB No. 135974

email: drew@crowell-law.com

(503) 581-1240

Of attorneys for the plaintiff

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