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6340 NB LLC v. Capital One N.A.

Deposition Subpoena May Be Served on Nonparty to Breach Action by Alternative Means

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DECISION AND ORDER This is an action by Plaintiff 6340 NB LLC (“6340 NB”) to recover damages based on Defendant Capital One, N.A.’s (“Capital One”) alleged breach of contract and anticipatory repudiation of a Ground Lease and its subsequent amendments pursuant to which Capital One agreed to design, develop, and construct a commercial bank. (See DE 42.) Capital One has counterclaimed against 6340 NB alleging fraud and breach of contract in connection with 6340 NB’s alleged failure to perform under the Ground Lease. (See DE 89.) Capital One now moves for leave to serve non-party Matthew Steinfeld with a deposition subpoena via alternative means, namely by leaving a copy with the doorman of his residence followed by sending a copy by overnight mail. (DE 106.) For the reasons that follow, Capital One’s motion is GRANTED. I. RELEVANT BACKGROUND The Court assumes the parties’ familiarity with the underlying facts and allegations of this case. (See DE 101 at 2-4.) As relevant here, Capital One alleges that 6340 NB failed to satisfy certain condition precedents of the Ground Lease, including the purchasing and rezoning of three parcels 6340 NB did not yet own. (DE 89 at

12-17.) Capital One alleges that 6340 NB did not perform its obligations by certain deadlines and based on misrepresentations of 6340 NB, Capital One agreed to extensions of those deadlines. (Id. at

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