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MARTIN v. CONTINENTAL CAS. CO.

November 18, 1992

LYNN MARTIN, Secretary of the United States Department of Labor, Plaintiff,
v.
CONTINENTAL CASUALTY COMPANY, et al., Defendants.


Lindberg


The opinion of the court was delivered by: GEORGE W. LINDBERG

JUDGE GEORGE W. LINDBERG

MEMORANDUM OPINION AND ORDER

 Plaintiff, Lynn Martin, Secretary of the United States Department of Labor, has filed an application for authorization to serve trial subpoena. In it, plaintiff argues that Mr. Steven Sills "is a parry witness and required to appear and testify pursuant to the issued subpoena," but "should this court determine Mr. Sills is a non party witness, the Secretary hereby applies for authorization from this court to serve its trial subpoena upon Stephen Sills and an order commanding him to appear and testify pursuant to Rule 45(b)(2) of the Federal Rules of Civil Procedure and section 502(e)(2) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(e)(2)."

 Plaintiff's first argument is stated as follows:

 Plaintiff . . . has issued a trial subpoena commanding Steven Sills, a Connecticut resident, to appear in person and testify at trial in Chicago, Illinois. At all times relevant to this action, Mr. Sills was an employee of defendant CNA's managing agent, Stewart Smith East. Accordingly, as an agent of defendant CNA, Mr. Sills is a parry witness and required to appear and testify pursuant to the issued subpoena.

 Although it appears unlikely that Mr. Sills is a parry witness under these facts, since it appears that he is no longer employed by "defendant CNA's managing agent", the question is not properly before the court and will not be decided. There is no motion to modify or quash the subpoena pending and the subpoena if defended on the grounds that Mr. Sills is a parry witness is not one for which approval prior to service is provided under Rule 45. See FRCP 45(b)(2), (c)(3)(A).

 This is not true of the alternative request for authorization to serve the subpoena on Mr. Sills as a non-party witness pursuant to Rule 45(b)(2) and section 502(e)(2) of the Employee Retirement Income Security Act of 1974 (ERISA). The relevant portion of Rule 45(b)(2) provides:

 When a statute of the United States provides therefor, the court upon proper application and cause shown may authorize the service of a subpoena at any other place.

 FRCP 45(b)(2). The statute of the United States upon which plaintiff relies states:

 Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.

 29 USC § 1132(e)(2). Plaintiff's alternative argument is that (1) the word "process" as used in this statute includes a trial subpoena, (2) defendant CNA does business in Connecticut and therefore "resides" in that state for purposes of this statute, and (3) non-parry witness Sills, who resides in Connecticut, may therefore be served with a subpoena in that district. See 28 USC § 86 ("Connecticut constitutes one judicial district"). Thus, plaintiff's alternative argument depends upon the word "process" in the statute including a trial subpoena.

 In support of the contention that the word "process" in section 502(e)(2) includes a trial subpoena, plaintiff cites to the portion of Rule 4 that states:

 Process, other than a subpoena or a summons and complaint, shall be served by a United States marshal or deputy United States marshal, or by a person ...


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