MEMORANDUM DECISION AND ORDER I. INTRODUCTION This matter arises out of a deposition subpoena that Plaintiff Hamed Wardak issued to Respondent pro se Brian Cavanaugh in connection with a civil action pending before the Southern District of New York where Wardak is the named defendant. (Dkt. No. 1-3, at 8); see Goolden v. Wardak, No. 19-cv-6257, 2020 WL 4271695, 2020 U.S. Dist. LEXIS 131748 (S.D.N.Y. July 23, 2020).1 After Respondent failed to respond to the subpoena, Plaintiff moved in this Court for an order to show cause why Respondent should not be held in civil contempt. (Dkt. No. 1) (“Contempt Motion”). Respondent failed to appear for oral argument on the Contempt Motion and, on December 1, 2021, the Court issued an Order finding Respondent to be in civil contempt. (Dkt. No. 11) (“Contempt Order”). Presently before the Court is Respondent’s motion to vacate the Contempt Order and Plaintiff’s motion for costs and attorneys’ fees. (Dkt. Nos. 15, 12). The motions are fully briefed. (Dkt. Nos. 20, 21, 22, 32). The Court held an evidentiary hearing on February 14, 2023, at which Respondent and process server Dave Miller testified. For the reasons set forth below, Respondent’s motion to vacate is denied and Plaintiff’s motion for attorneys’ fees and costs is granted in part. II. FACTS2 In his motion to vacate Respondent asserts that he was not properly served with the subpoena, Contempt Motion, “or any other moving papers in this matter.” (Dkt. No. 15, at 1, 10-13). Respondent sought an evidentiary hearing “to determine the credibility of the process server’s sworn statements”; Respondent asserted that the process server, David Miller, lied in his sworn affidavit. (Id.
44-45). The evidence of service, and the Court’s findings of fact after considering all of the evidence from the evidentiary hearing and all of the evidence in this record, are set forth below. A. Service of the Deposition Subpoena Plaintiff presented evidence that process server David Miller made eleven attempts, from July 17, 2021 through August 11, 2021, to personally serve Respondent with the deposition subpoena at Respondent’s residence in Syracuse. (Pl. Ex. 8, 14). The evidence included an affidavit of service by Miller, time-stamped photographs documenting Miller’s eleven attempts, as well as body camera footage documenting Miller’s July 17, 2021 and August 5, 2021 attempts to serve the subpoena, and Miller’s testimony at the hearing. (Pl. Ex. 8, 16). Miller testified as follows. During his attempt to serve the subpoena on July 23, 2021, he saw a vehicle in the driveway and he saw Respondent come to the large kitchen window and shut the curtain. (See Dkt. No. 1-3, at 16-17). On July 26, 2021, Miller spoke with one of Respondent’s neighbors, who confirmed that Respondent resided at that address. (See id. at 17). On August 11, 2021, after Miller’s eleventh unsuccessful attempt to personally serve Respondent, he affixed the subpoena and notice of subpoena to Respondent’s front door, and another process server, Kenneth Wong, mailed the documents to Respondent by first class mail. (Dkt. No. 1-3, at 16-18; Pl. Ex. 14). Plaintiff’s Exhibit 8 contains a time-stamped photograph of Respondent’s front door on August 11, 2021, with an envelope taped to the door. Respondent testified that he was unaware that Miller attempted to serve him with the subpoena in July and August 2021. Respondent testified that he did not find the subpoena affixed to his front door. Respondent has surveillance cameras at his home, but he testified that any footage from July or August was erased by November 2021, when he learned about this proceeding. Having observed both witnesses’ testimony, and having considered all of the submissions and evidence in this case, including the extensive corroboration of Miller’s attempts to serve the subpoena, the Court credits Miller’s testimony regarding service of the deposition subpoena, and does not credit Respondent’s testimony that he was unaware of Miller’s attempts to serve him with the subpoena. B. Service of the Contempt Motion in October 2021 On October 21, 2021, the Court issued a Text Order scheduling an oral argument for November 29, 2021, in response to Plaintiff’s October 20, 2021 application for an order to show cause why Respondent should not be held in civil contempt for his failure to comply with the deposition subpoena. (Dkt. No. 2). In the Text Order the Court instructed Plaintiff to serve his motion papers and the Text Order “in person, by mail, and by email” and file proof of service by October 28, 2021. (Id.). 1. Plaintiff’s Evidence of Service On October 28, 2021, Plaintiff’s counsel filed a proof of service stating that he emailed Respondent the Contempt Motion and the Text Order to Respondent “at his known email address.” (Dkt. No. 3).3 Plaintiff’s counsel further stated that he caused these documents to be mailed to Respondent’s home address on October 23, 2021, and that a “process server confirmed” that he served the documents on Respondent at his home address by “nail and mail” under N.Y. C.P.L.R. §308(4) “following numerous unsuccessful attempts to serve [Respondent] in person.” (Dkt. No. 3). Plaintiff filed an affidavit of service from process server David Miller, and an affidavit of mailing from an individual at Miller’s office, in support of these assertions. (Dkt. No. 4). David Miller testified as follows regarding three attempts in October 2021 to serve Respondent at his residence with these documents. Miller attempted to personally serve Respondent with the Contempt Motion and Text Order at his residence on October 23, 2021, at 2:21 p.m., but there was no answer at the door. Plaintiff submitted time-stamped body camera footage documenting this attempt. (Pl. Ex. 18). When Miller attempted to serve Respondent on October 25, 2021 at approximately 6:22 p.m., Miller saw Respondent in the basement of the home. Miller knocked loudly on the door, but Respondent refused to answer. Plaintiff introduced time-stamped photographs documenting both of these attempts. (Pl. Ex. 9). Miller testified that his affidavit of service filed with the Court erroneously states what happened on his third attempt to serve the documents on October 28, 2021. Miller’s affidavit states that on October 28, 2021 at 5:52 p.m., he affixed the Contempt Motion and Text Order to Respondent’s front door. In fact, surveillance video from Respondent’s home security cameras, time-stamped October 28, 2021 at 5:52 p.m., shows Miller pulling into Respondent’s driveway, sitting in the driveway for approximately a minute, and pulling out of the driveway without exiting the vehicle. (Def. Ex. 26). Miller testified that the time of service listed on his affidavit was incorrect and that he actually affixed the documents to Respondent’s front door on the morning of October 28, 2021, and returned that same day at 5:52 p.m. to take a photograph of Miller’s house. Miller explained that the Chase Agency, which contracted with him to serve Respondent, requires a process server to make at least three attempts on three separate days in three different windows of time — mornings, afternoons, and evenings. If service does not meet these requirements, the job is considered incomplete in the system, and Miller would not be paid for the service. Miller attempted service the morning of October 28, 2021 because his previous attempts to serve Respondent occurred at 2:21 p.m. and 6:22 p.m., which were afternoon and evening attempts, respectively. Thus, to comply with Chase Agency policy and receive payment for the service, Miller had to attempt to serve Respondent in the morning. Miller further testified that the Chase Agency requires process servers to use a mobile software application to document attempted service. The software application prompts process servers to take a photograph which is time stamped and geopositioned, and then process servers use that photograph as an entry to log the event that just took place. Miller testified that he took a photograph when he served Respondent on the morning of October 28, 2021, but it failed to upload to the software. Miller suspected that it did not upload because he did not wait long enough for the photograph to upload properly. He explained that if a process server does not wait long enough at a residence for the photograph to be uploaded properly, and then drives away, getting too far out of range of range of that GPS, the photograph will not upload. Miller testified that he returned to Respondent’s residence at 5:52 p.m. the same day — October 28, 2021 — because he needed to get a third photograph uploaded into the system to complete the job and generate an affidavit. Thus, Miller explained that the documents were affixed to Miller’s front door in the morning, not when the 5:52 p.m. time-stamped photograph was taken. Miller’s October 2021 work order is consistent with that testimony; it states that the third attempt was on the morning of October 28, 2021. (Pl. Ex. 11). 2. Respondent’s Evidence of Service As noted above, Respondent introduced surveillance video from his home security camera which shows that Miller did not affix documents to the front door on October 28, 2021 at 5:52 p.m. Respondent asserts that he was never served with the Contempt Motion and was unaware of this proceeding until he received “a damaged envelope in the mail which contained only a copy” of a text order requiring Wardak to serve the Contempt motion. (Dkt. No. 15, 47). Respondent asserts that there was “no other paperwork in the envelope” and that “while th[e] one page did provide a date and time for a hearing, it did not provide any notice as to the location of the hearing making an appearance impossible.” (Id., 48). Respondent testified that he did not review any of his home surveillance video from Miller’s first two attempts at service, on October 23, 2021, or October 25, 2021 and that he only reviewed the surveillance video on October 28, 2021 from about an hour prior to when Miller arrived until around 9 or 10 that night. C. Re-service of the Contempt Motion in November 2021 On November 17, 2021, the Court received a letter from Respondent, with the caption and case number from this action, stating that he has “not been served with nor received any paperwork in the above-referenced matter of Wardak v. Cavanaugh,” but was filing it in “an effort to get this filing to the correct court / judge.” (Dkt. No. 6). Respondent attached a letter he wrote to the United States District Court Judge handling the underlying Southern District of New York action, Judge J. Paul Oetken. Respondent informed Judge Oetken that he had “received a torn and damaged envelope in the mail which contained a single piece of paper which appears to be a printout of an email from ‘[email protected]’…with a subject line of ‘Activity in Case 5:21-mc-00047-BKS-TWD Wardak v. Cavanaugh Order.’” (Dkt. No. 6, at 2). Responded further stated “[t]here was no other paperwork in the envelope.” (Id.). Respondent noted that the email “appears to be a ‘text order’ requiring Hamed Wardak to serve myself with an order to show cause why I should not be held in contempt of court for willful failure to obey a subpoena and requires service of the motion papers, and the text order, in person, by mail and by email by 10/28/2021.” (Id.).4 Respondent stated that “FRCP 45 requires that a subpoena” be hand served and that he has “never been served, nor have I ever received, any subpoena in the above-referenced matter.” (Id.). In light of these letters, this Court issued a Text Order directing Plaintiff “to re-serve Mr. Cavanaugh with the pending motion papers, the Court’s 10/21/2021 Text Order, and this Text Order” but that “[i]n view of the difficulties Mr. Wardak states he has encountered in serving Mr. Cavanaugh personally,” the Court directed Plaintiff “to complete service via regular mail and file an affidavit of service by 11/23/2021.” (Dkt. No. 5). Plaintiff complied with this direction; he filed an affidavit of service stating that the Court’s two Text Orders and Plaintiff’s pending motion papers were mailed to Respondent’s residence on November 22, 2021. (Dkt. No. 10). D. Respondent’s Receipt of a Mailing from Plaintiff Respondent states that on November 23, 2021, he received an envelope containing Plaintiff’s reply in support of his Contempt Motion, but that this submission did not contain the moving papers and “nothing at all that would give me notice of the time and place of a hearing.” (Dkt. No. 15, 150). Respondent has attached the contents of this mailing to his motion to vacate. (Dkt. No. 15-6). E. Oral Argument on the Contempt Motion Respondent did not appear for the oral argument on November 29, 2021, and on December 1, 2021, the Court entered an order finding Respondent in contempt of court. (Dkt. No. 11). F. Findings Regarding Service of the Contempt Motion After carefully observing the witness testimony and considering all of the exhibits and submissions in this case, the Court credits all of David Miller’s testimony regarding his service of the contempt motion paperwork. Respondent did establish that Miller falsely stated in his affidavit of service that he attempted service at 5:52 p.m. on October 28, 2021, and affixed the Contempt Motion and Text Order to Respondent’s front door at that time. However, Miller admitted his falsification and explained why he returned to Plaintiff’s residence at 5:52 p.m., after the software failed during his earlier service that day. The Court notes that Miller’s employer submitted an affidavit stating that, in the employer’s experience, Miller “is a professional, experienced, reliable, and trustworthy individual and service-of-process agent” and that Miller’s “service of process has never been disputed or challenged outside of this case.” (Dkt. No. 22,
