The Third 100-Mile Rule - Articles

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Posted by: Donald Paine on Aug 21, 2008

Journal Issue Date: Sep 2008

Journal Name: September 2008 - Vol. 44, No. 9

In my August 2006 column I wrote about two of the 100-mile rules. There is a third rule that I should have included. Please let me make amends in this column.

Let's review the first two. Federal Rule of Civil Procedure 4(k)(1)(B) allows a summons to be served under Rule 14 (impleader, aka third-party practice) or Rule 19 (required joinder if feasible) at a distance of 100 miles from the courthouse of issuance, even if beyond the state line.

Second, both federal and Tennessee courts admit a deposition substantively if the deponent is more than 100 miles from the courthouse on trial day. See Federal Rule of Civil Procedure 32(a)(4)(B) and Tennessee Rule of Evidence 804(a)(6).

The third 100-mile rule appears only in federal civil actions. It applies to subpoenas for depositions and subpoenas for trials. Understanding the principle requires perusing portions of Federal Rule of Civil Procedure 45(b)(2).
"[A] subpoena may be served at any place:

(A) within the district of the issuing court;
(B) outside the district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection; [or]
(C) within the state of the issuing court if a state statute or rule allows service at that place of a subpoena issued by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, production, or inspection ..."

Concerning part (C), Tennessee does indeed have a rule allowing statewide service. See Tennessee Rule of Civil Procedure 45.05(1).

Consequently, federal civil subpoenas for depositions or trials can be served anywhere within Tennessee or even across the border if within the "bulge" created by our third 100-mile rule.

Moving to evidence law, keep in mind that the exceptions in Federal Rule 804(b) require unavailability of the declarant. One ground of unavailability is that the declarant is beyond trial subpoena range. See Federal Rule of Evidence 804(a)(5). A declarant beyond the Tennessee line and not within a "bulge" is unavailable.

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure