United States District Court, D. South Carolina, Charleston Division
CresCom Bank, successor by merger to Community FirstBank, Plaintiff,
Edward L. Terry; Harris Street, LLC, n/k/a CCT Reserve, LLC; Sugarloaf Marketplace, LLC; and CCT Reserve, LLC, Defendants.
PATRICK MICHAEL DUFFY United States District Judge.
matter is before the Court on three motions. First, Plaintiff
CresCom Bank asks the Court to hold Defendant Edward L. Terry
and his wife, Elaine C. Terry in contempt for refusing to
comply with an order the Court issued in this case on July 6,
2017 (ECF No. 123). Second, the Terrys asks the Court for
permission to file a sur-reply in the briefing on
CresCom's contempt motion (ECF No. 131). Finally, the
Terrys ask the Court to alter, amend, or clarify its July 6
order (ECF No. 124). For the following reasons, the Court
grants the motion for leave to file a sur-reply, denies the
motion to alter, amend, or clarify, and defers a decision on
the contempt motion.
Motion to Alter, Amend, or Clarify
Timeliness of Motion
Terrys state they seek relief under Rules 54(b) and 59(e) of
the Federal Rules of Civil Procedure. The Court is not
persuaded that either rule applies. Rule 59(e) motions must
be made twenty-eight days after entry of a final judgment.
The Court's July 6 order was not a final judgment;
rather, the latest final judgment was entered over a year
ago. Thus, a Rule 59(e) motion would be untimely. So too with
a motion under Rule 54(b). That rule allows courts to modify
interlocutory orders before entry of final judgment. Although
the July 6 order was interlocutory, it was entered long after
final judgment. Cf. Moore v. Lightstorm Entm't,
No. CV RWT-11-3644, 2017 WL 219368, at *1 (D. Md. Jan. 19,
2017) (stating Rule 54(b) does not apply to orders compelling
post-judgment discovery because it expressly allows
modification of interlocutory orders before entry of
appears to be an absence of authority on the deadline for
seeking reconsideration of a post-judgment discovery order.
See Moore, 2017 WL 219368, at *1 (noting the
“absence of a rule on point” in this circuit).
Nonetheless, the Court views the Terrys' motion as
untimely. The July 6 order required that the Terrys produce
documents by July 21 and that Mr. Terry appear for a
deposition by July 28. The Terrys, however, did not file
their motion until August 3, well after those deadlines had
expired. Under Local Civil Rule 7.03-a rule the Court cited
in its July 6 order- motions should be filed
“immediately after the issues raised thereby are ripe
for adjudication.” Local Civ. Rule 7.03 (D.S.C.). The
issues the Terrys raise in their motion became ripe when the
Court entered the July 6 order. Filing their motion nearly a
month later-and after the order's deadlines expired-was
in no way consistent with Rule 7.03.
untimeliness of the Terrys' motion is a sufficient basis
for denying it. Out of an abundance of caution, however, the
Court will address the motion on its merits.
Court's July 6 order, as it relates to Mrs. Terry,
concerns her refusal to respond to a document subpoena that
CresCom issued last December. Although Mrs. Terry raised
several arguments in defense of her refusal, the Court found
them to be untimely because she failed to properly assert
them within the deadline set forth in Federal Rule of Civil
Procedure 45(d)(2)(B). Consequently, the Court concluded, the
arguments were waived.
Terry claims the Court's waiver decision was clearly
erroneous. First, she argues she could not have waived her
argument because the subpoena was never properly served on
her and thus she never had an enforceable deadline for
objecting to the subpoena. Subpoenas are served by
“delivering” a copy to the person named therein.
Fed.R.Civ.P. 45(b)(1). In this case, a process server went to
a house that Mrs. Terry's company owns and that the
Terrys use as a vacation home, and handed the subpoena to Mr.
Terry. Mrs. Terry argues that did not constitute delivery
because Rule 45(b)(1) requires personal service. The Court
disagrees. The process server's method of delivery was
reasonably calculated to ensure Mrs. Terry received the
subpoena. Indeed, despite numerous opportunities to do so,
Mrs. Terry has never asserted that she did not actually get
the subpoena in a timely fashion. The circumstances present
in this case constituted delivery. See, e.g.,
Phillips v. Ottey, No. CV DKC 14-0980, 2016 WL
6582647, at *2 n.5 (D. Md. Nov. 7, 2016) (“The United
States Court of Appeals for the Fourth Circuit has not
addressed whether a non-party subpoena must be personally
served, but courts in this district have focused on whether
the recipient has received ‘actual notice' of the
subpoena.” (citation omitted)); Bland v. Fairfax
Cty., 275 F.R.D. 466, 471-72 (E.D. Va. 2011) (holding
Rule 45(b) does not require “personal service to the
exclusion of other manners of service” so long as
“the non-personal service was effected by means
reasonably sure to complete delivery”); In re
Falcon Air Exp., Inc., No. 06-11877, 2008 WL 2038799, at
*2-3 (Bankr. S. D. Fla. May 8, 2008) (rejecting “as
antiquated the so-called majority position interpreting Rule
45 as requiring personal service, ” and instead
adopting “the better-reasoned, modern, emerging
minority position, which holds that substitute service of a
subpoena is effective on a nonparty witness under Rule
45” and finding permissible a subpoena served on a
party's wife at a residence owned by him); Hall v.
Sullivan, 229 F.R.D. 501, 505 (D. Md. 2005) (holding
that Rule 45(b) does not require personal service).
Terry next asserts CresCom's lawyers withdrew the
subpoena in January 2017 and then improperly tried to enforce
it by moving for supplementary proceedings several weeks
later. Accordingly, she contends, she could not have waived
her arguments because there was no active subpoena to which
she could object. She further argues that even if
CresCom's lawyers did not actually withdraw the subpoena,
her arguments should not be deemed waived because they led
her to believe they would do so.
vigorously disputes Mrs. Terry's arguments. It denies
that it ever withdrew the subpoena or that its lawyers said
or did anything that would have led her to believe the
subpoena was withdrawn.
record contains conflicting evidence about what counsel in
this case discussed in regards to the subpoena. However, the
Court need not resolve that conflict. Its existence defeats
Mrs. Terry's argument that the Court made a clear error.
Moreover, even if the Court did clearly err on this issue,
the remedy for such an error would be to address ...