United States: One Hundred Miles, One Hundred Miles
For Subpoena Purposes, Just How Far Away is New York City, Anyway?

This article originally appeared in the August 14, 2000 edition of The Legal Intelligencer.

"Five Hundred Miles," by Bobby Barr, Charlie Williams and Hedy West

If a train whistle blows in Yonkers, N.Y., can you hear it at 6th and Market streets in Philadelphia? If not, and if the song is to be believed, you cannot serve a subpoena on a person who lives and works in Yonkers and who is not a party or an officer of a party to testify at a trial in the Eastern District of Pennsylvania held in Philadelphia, unless a federal statute provides for national service for cause shown. Fed. R. Civ. P. 45(b)(2).

But how about a non-party/non-officer who works at 34th Street and Park Avenue in Manhattan? Or the World Financial Center? This weighty issue - how much, if any, of New York City is within 100 miles of 601 Market St. - has vexed Philadelphia trial lawyers for decades.

The threshold issue presented is how one measures the 100 miles - by a straight line or by the shortest route of public travel. This issue was addressed by Judge Robert S. Gawthrop III in Core Leasing, Inc. v. American Airlines, Inc., 1990 U.S. Dist. LEXIS 8094 (E.D. Pa. July 2, 1990).

In deciding whether the action should be transferred to the Northern District of Texas, the court considered the availability of compulsory process for attendance of unwilling witnesses (which is one of the factors to be taken into account when considering motions to transfer under 28 U.S.C. Section 1404(a)):

In the portion of Glen Knit Indus. cited by Gawthrop, Higginbotham held that:

384 F. Supp. at 1178.

Some older cases held that in computing 100 miles from the place of trial, the distance should be determined by the ordinary, usual and shortest route of public travel and not by a mathematically straight line between the place of service and the place of trial. See, e.g., Merchant Bank of New York v. Grove Silk Co., 11 F.R.D. 439, 440 (M.D. Pa. 1951). However, in this district, the crow wins, wings down. See Langsam-Borenstein Partnership v. NOC Enters., Inc., 137 F.R.D. 217, 218 n.5 (E.D. Pa. 1990), in which Judge Edmund V. Ludwig stated:

It is noteworthy that neither Judge Higginbotham nor Judge Gawthrop felt obliged to explain the factual basis for the conclusion that New York City was within 100 miles of 601 Market St. It is not clear whether they believed that, for purposes of Rule 45(c), (a) if all of New York City was within 100 miles of 601 Market St. or (b) if any part of New York City was within 100 miles of 601 Market St., then attendance could be compelled from anywhere in New York City.

To the same effect, see Bolton v. Tesoro Petroleum Corp., 549 F. Supp. 1312, 1316 (E.D. Pa. 1982), in which Judge Raymond J. Broderick, in considering whether the action should be transferred to the Western District of Texas, observed that "[i]t is true that witnesses found in New York could be subpoenaed from this district, and not from Texas, under Fed. R. Civ. P. 45(e)(1) …"; Anastasi Brothers Corp. v. St. Paul Fire and Marine Ins. Co., 519 F. Supp. 862 (E.D. Pa. 1981), in which now Chief Judge James T. Giles held:

On the other hand, the following passage from Judge Norma Shapiro’s decision in Hathi v. Frischer et al., 645 F. Supp. 360, 362 (E.D. Pa. 1986) (emphasis added) suggests that the court did not assume that a witness located in New York City would necessarily be within 100 miles of the federal courthouse in Philadelphia:

It is not clear from the court’s opinion in Hathi what the factual basis or relevance was for its assertion that only 90 miles separates the two districts. In the case of a trial subpoena, what matters is the distance from the courthouse where the trial is to take place, not the nearest boundary of the district or any other location.

If the trial were to take place at a location within the Eastern District other than Philadelphia, the 100 miles would be measured from the federal courthouse there. See, e.g., Uniroyal Goodrich Tire Co. v. Munnis, 1989 U.S. Dist. LEXIS 13352, at *5 (E.D. Pa., November 6, 1989), in which Judge Edward N. Cahn, in considering a motion to transfer the action to the Middle District of Pennsylvania in Williamsport, wrote:

Judge Michael B. Mukasey of the Southern District of New York, apparently possessing a meandering crow, held in March 1992 that "[b]ecause Philadelphia is further than 100 miles from this District, these witnesses [doctors and nurses who attended plaintiff’s operation at Presbyterian Medical Center in Philadelphia] cannot be subpoenaed for trial." Cohen v. National Red Cross, 1992 U.S. District LEXIS 3019, at *6 (S.D. NY. March 13, 1992). Judge Mukasey cited no authority for his mileage calculation.

A more recent decision by Judge Jay C. Waldman also implied that portions of New York City may lie outside the subpoena power of the Eastern District of Pennsylvania. See Hunter v. Heffernan, 1996 U.S. Dist. LEXIS 9244 (E.D. Pa. June 27, 1996). There, the court held that a SEC official in Manhattan, who controlled documents that the plaintiff sought to compel, "would be subject to a subpoena issued from this court for a deposition in this district, most portions of which are within 100 miles of Manhattan." (emphasis added).

It is unclear from the court’s opinion what the court relied on to determine mileage, or where the SEC official’s office was in Manhattan, or whether that office was within 100 miles of 601 Market St. or another location in the Eastern District of Pennsylvania where the SEC official would be required to submit to a deposition.

Judge Gawthrop was never in doubt about the distance from 601 Market St. to New York City. See Dawson v. BGJ Enters., Inc., 1996 U.S. Dist. LEXIS 17460 (E.D. Pa. Nov. 19, 1996). In Dawson, Gawthrop rejected plaintiff’s argument that a witness in New York City was beyond the reach of compulsory process.

Gawthrop concluded: "It is an incontrovertible geographic fact that [the plaintiff’s argument] is untrue: New York City is within 100 miles of this courthouse."

As noted above, Gawthrop apparently never considered the possibility that portions of New York City might lie beyond 100 miles from 601 Market St. Cf. United States v. Gomez Lores, 1995 U.S. Dist. LEXIS 19022, *11 (E.D. Pa. Dec. 19, 1995) (finding a New York City witness within subpoena power under Fed. R. Crim. P. 17(b), which contains a similar 100 miles-out-of-district limitation.

Judge Louis H. Pollak joined his colleagues when he concluded, without citation to factual authority, that New York City residents are within subpoena power of the federal district court sitting in Philadelphia. See Sinakin v. Havens, 1997 U.S. Dist. LEXIS 8763, at *9 (E.D. Pa. June 13, 1997) (denying defendant’s request to transfer case to New York City).

In 1988 the Federal Courts Committee of the Philadelphia Bar Association, under the leadership of the Charles R. "Chuck" Bruton of Pepper Hamilton, considered this thorny issue. The minutes of the group’s Feb. 17, 1988, meeting included the following:

The documents attached to the minutes indicated that Bruton was going to put the matter to the Chief Judges of the Eastern District of Pennsylvania and the Southern District of New York for a ruling.

When I discussed this matter with Bruton recently, he advised that his effort to enlist the judiciary to resolve this factual matter once and for all had been unsuccessful. An attempt was made to have the District of New Jersey, Eastern District of Pennsylvania, and Southern and Eastern Districts of New York adopt a single geographical map that defined the area falling within 100 miles of 601 Market St., Philadelphia.

However, the Chief Judges of the District of New Jersey and the Southern District of New York were not interested in addressing the issue.

There is no need for this matter to be shrouded in mystery any longer. The combination of Global Positioning Satellites (GPS), U.S. Geodetic Survey (USGS) maps and Geographic Information System (GIS) computer software such as ArcInfo makes it possible fairly easily to measure the distance between two points in the United States to within less than 100 feet.

All of New York City is within 100 miles of 601 Market St. Indeed, the 100-mile radius extends into Westchester and Nassau Counties.

So, you should be able to hear the whistle blow all the way from New Rochelle. Next time a person who lives or works in New York City moves to quash your subpoena on the ground that she is more than 100 miles from 601 Market St., feel free to send her a copy of this article.