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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I won a small claims case on autombile purchase cititing the

Customer Question

I won a small claims case on autombile purchase cititing the MA lemon Aid law. The defendant has hired an attorney and when i arrived at court today, I learned she had sent witness subpoenas to my husband and son (sent at 2 pm yesterday to show up for*****in the next state) but they were sent to the wrong address. they have rescheduled the court for next friday. there is no new evidence presented and it is a financial burden for my husband to take off work unpaid as well as me since we are both paid hourly. My son is an honor role senior in high school and on the varsity football team where unexcused absences have numerous consequences making it impossible to loose a day of school. there is so much going on right now academically and with internships, scholarship apps that he cant loose a school day. Are these valid reasons to quash a subpoena that seems to be frivolous anyway? No new info has been revealed to me so I dont know the purpose of the subpoena (which i still dont have) The court date has been rescheduled for one week
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.

Hello,

Do the subpoenas request any documents to be brought to court?

If yes, can you provide the text appearing on the subpoena (or, if it's more than a couple of sentences, then summarize what documents have been requested)?

Thanks in advance.

Customer: replied 1 year ago.
I dont have the subpoenas as they have to be resent but it is my understanding that they are witness subpoenas . they are sayiong they want them as witness to the texts that were sent (which I have previously agreed that they were from my son). And that my husband was there at the time of the transction to buy the car. Neither of these issues are disouted but the car didnt pass in spection which according to MA lemon aid law it must pass or the car can be returned.
Expert:  socrateaser replied 1 year ago.

I have a meeting starting practically immediately. I will reopen the Q&A session so that someone else can try to assist. If no one does, when I return this evening, I'll answer your questions.

Please don't reply to this memo, or it will delay getting someone new involved. Thanks again for using Justanswer!

Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a DIFFERENT CONTRIBUTOR and a MA licensed attorney.

Until they actually are served they do not have to appear in court. Unfortunately, if your son and husband get served and if they did have personal knowledge about this transaction, the text messages and the fact your husband was present, they are entitled to refuse to stipulate to their testimony and have them appear. You can send a letter to the opposing counsel with a notarized affidavit from your husband that states everything he could testify to in court and another one from your son and tell opposing counsel you would be willing to stipulate to those statements if she would agree and enter them in lieu of their appearance.

However, if she will not stipulate and she manages to serve your son and husband, they have to appear generally. As far as it being an "unexcused absence" for your son, it is not an unexcused absence, if he has a subpoena to appear as a witness, that is a lawful order from a court and as such is an excused absence because if he fails to appear the court can hold him in contempt of court and could fine him or possibly (not likely) even jail him and that is why it is an excused absence.

The only other possible choice you have is that you can file a Motion to Quash the subpoenas, but you would have to then prove that they have no firsthand information that they can add to this case and as such the subpoenas are merely to annoy or harass. This is a sample for a motion to quash the subpoena that could be used by you and modified to state subpoena and not deposition subpoena and filed with the small claims court to get the court to hear the matter on an emergency basis: http://www.town.duxbury.ma.us/Public_Documents/DuxburyMA_TownMan/nh/pleadings/5.pdf

Customer: replied 1 year ago.
I recieved the 'subpoena duces tecum', left in my US mailbox as two single sheets, no envelope. They were both addressed to my son which I presume is an error on their part as I was told they would be serving my husband and my son. I winder if I can make the motion to quash based on any irregularities in the format or delivery or based on the principal that there is nothing my son can add that has not already been disclosed, At issue in the case is the Lemon Aid law where the defendant refused to take the car back after it failed inspection and the cost to repair the car is more than the pirchase price of 1300.00
Below is exactly how the subpoena reads:Hillsborough SS SUBPOENA CUCES TECUMMy sons name and address
You are hereby commnaded in the name of the commonwealth of MA to appear at Roxbury District Court (address) on (Date) and from day to day thereafter to give evidence of what you know relating to the matter of (my name) vs (defandant) Roxbury District Court Civil Action (small claims) Docket number.
HERE OF FAIL NOT as you will answer your default under the pains and penalties in the law in that behlaf made and provided.
Dated at Randoph MA this 6th day of October, 2015
Served by the Constable(This was hand written in ink)
Notary Public
My Comission Expires: ____________
(NOTE there was no notary signature and this document was not notarized.Name of defandants attorney, address and phone numberend of Subpoena
Customer: replied 1 year ago.
Are you there ?
Customer: replied 1 year ago.
While waiting for your response i am looking at and wondering if a subpoena needs to be signed or notarized to be valid. The subpoena my son recieved just says in handwriting " served by the constable' with no name, no signature, no notary and no comission date. if so is that a reason to quash it as invalid? Does the motion to quash need to be notarized?
Expert:  Ely replied 1 year ago.

Hello,

Your expert is currently away from the site, and asked me to step in to help.

While waiting for your response i am looking at and wondering if a subpoena needs to be signed or notarized to be valid.

It does not have to be notarized. It does however have to be (1) signed by an attorney who is part of the suit if there is an attorney, or if the party is pro se, then, (2) signed by the Judge or the clerk under the Judge's authority.

The subpoena my son recieved just says in handwriting " served by the constable' with no name, no signature, no notary and no comission date. if so is that a reason to quash it as invalid? Does the motion to quash need to be notarized?

What matters is that he RECEIVED the subpoena. If he did, then frankly filing to quash service may be a waste of time because they can just re-serve him (properly) on courthouse steps before or after the hearing on that motion.

If the subpoena is missing signatures however, a Motion to Strike may be in order. But again, they can simply reserve it (in proper form) just as above.

Let me know if you need anything else.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith by rating me positively.

Customer: replied 1 year ago.
While waiting for reply I seached online . The court is in MA but we live in NH . Doesnt the subpoena need to follow NH rules ? I read that payment for witness fee and mileage must be included with subpoena and NH states that subpoena be notarized . Do they not need to follow the laws of the state where the subpoena is served ? Also the subpoena "Tecum" is described as one where evidence needs to be submitted . There is another type of subpoena that is described as a witness subpoena (I forget what the name if that was when I looked it up. They have not asked for any specific evidence And the opposing attorney said they were being called as a witness. If the subpoena served is not correct to the purpose , is that reason to quash ? It seems based on the NH law that I read they have not followed it (witness fee and mileage payment , signature , notary, type of subpoena ) . Yesterday I faxed an affidavit from my son to the opposing attorney (based on just answer suggestion ) . It covers testimony that he would say if he went to court and asking that they accept his testimony affidavit in lieu of presence at court. I have not received a response . It would be an academic , athletic and financial burden for my son to lose class time , football time (important game ) and the cost to drive that distance as well. No fees have been offered for witness or mileage . The impact for him to miss school and football at this time is tremendous as it's a very demanding time of the year with internship and college programs that can't be rescheduled . I would like to see if there is a way to quash or somehow remove the witness's subpoena . Everything he put in his affidavit is what he would attest to if required to travel there. I believe they are using stall tactics and harassing us in hopes that we give up on going the long distance to get there. First they sent subpoenas to the Wrong address (a week ago ) requiring us to reschedule the court date after having wasted the day there waiting . Now they sent two of the same subpoenas instead if two seperate for my son and husband and apparently the subpoenas were not done according to nh subpoena guidelines . Can't i put something together to prevent the burden on my son to appear ? I thought the affidavit would be one option and notion to quash would be the other . The rescheduled court date is tomorrow (Friday oct 9)
Thank you
Expert:  Ely replied 1 year ago.

1) How was the subpoena served? Certified mail? Constable? Private process server?

2) How far away are you from the Court (miles)?

Customer: replied 1 year ago.
I described the subpoena I received above in more detail above but essentially it was dropped in my mailbox as 2 loose sheets of paper (no envelope ) the subpoenas both were made out to my son and nothing to my husband. it said in handwriting that it was delivered by constable ,but no name , no notary , no signature , no witness's fee or mileage . I do t know the exact mileage but it's appx 1.5 hr car drive (on opposite side of Boston )and appx 60 miles .
Customer: replied 1 year ago.
Additionally last week they sent subpoenas to the wrong street number despite that they have my correct address and have sent other documents successfully to us .so some neighbor has been made privy to these details since there wasn't even an envelope with my sons name on it for privacy . That seems on its own a reason to quash as subpoenas should be private to others and specific to the person . Leaving it like that on someone else's property without an addressed envelope is putting our information out there without care or concern .
Expert:  Ely replied 1 year ago.

Thank you.

Doesnt the subpoena need to follow NH rules ?

If delievered in NH, NH law is required to be followed.

I read that payment for witness fee and mileage must be included with subpoena and NH states that subpoena be notarized .

Correct. if witness fees are not paid, the motion can be filed to be striken/quashed.

Do they not need to follow the laws of the state where the subpoena is served ?

Yes.

Also the subpoena "Tecum" is described as one where evidence needs to be submitted . There is another type of subpoena that is described as a witness subpoena (I forget what the name if that was when I looked it up. They have not asked for any specific evidence And the opposing attorney said they were being called as a witness. If the subpoena served is not correct to the purpose , is that reason to quash ?

subpoena duces tecum orders a person or organization to bring physical evidence before the ordering authority or face punishment.

subpoena ad testificandum orders a person to testify before the ordering authority or face punishment.

If one is being asked to simply come testify but the duces tecum subpoena is used, then perhaps this may be enough to quash, yes. However, again, in all these cases, the subpoena may simply be corrected and reserved on court house steps.

Many times, challenging the subpoena on lack of a nuance is a waste of time because of that.

It seems based on the NH law that I read they have not followed it (witness fee and mileage payment , signature , notary, type of subpoena ) . Yesterday I faxed an affidavit from my son to the opposing attorney (based on just answer suggestion ) . It covers testimony that he would say if he went to court and asking that they accept his testimony affidavit in lieu of presence at court. I have not received a response . It would be an academic , athletic and financial burden for my son to lose class time , football time (important game ) and the cost to drive that distance as well. No fees have been offered for witness or mileage . The impact for him to miss school and football at this time is tremendous as it's a very demanding time of the year with internship and college programs that can't be rescheduled . I would like to see if there is a way to quash or somehow remove the witness's subpoena .

Missing extracurricular and sporting activities is not reason enough to challenge a subpoena.

Everything he put in his affidavit is what he would attest to if required to travel there. I believe they are using stall tactics and harassing us in hopes that we give up on going the long distance to get there. First they sent subpoenas to the Wrong address (a week ago ) requiring us to reschedule the court date after having wasted the day there waiting . Now they sent two of the same subpoenas instead if two seperate for my son and husband and apparently the subpoenas were not done according to nh subpoena guidelines . Can't i put something together to prevent the burden on my son to appear ? I thought the affidavit would be one option and notion to quash would be the other . The rescheduled court date is tomorrow (Friday oct 9) Thank you

If the date is Friday, then there is arguably not enough time to even file to quash or strike. If one wants to however, one should bring this to the Court tomorrow and the Judge may either (1) hear it then and there, (2) reschedule the challenge for another day, or (3) deny it.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
what do you recommend, given the date Is tomorrow (already rescheduled from last Friday) ? Motion to strike or quash ? I assume I let the judge know that I at the affidavit immediately to opposing counsel in my best effort to resolve the issue but did not receive response . Will that be looked at in my favor ? It seems we are the ones put under pressure with deadlines but it doesn't give enough time to do what needs to be done. Can a notion to strike be given in hand on date of court ? Or quash ? Is one looked at more favorably?
Expert:  Ely replied 1 year ago.

Someone in your situation may wish to draft a motion to strike/quash quash and BRING it to Court tomorrow (several copies for all parties), and hope the Judge agrees to hear it, or at the very least reschedules the matter to have it heard.

Honesty, this is not ideal. However, if one can explain that one did not receive the subpoena until just not a while ago and there WAS NO TIME TO FILE AND SCHEDULE THE CHALLENGE BEFORE NOW, the Judge may allow an exception.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
Ok so wrapping up, here. Since I don't know the difference . What is a quash vs strike what do i need to include in it? Do I bring up the affidavit in lieu of presence as seperate issue since I don't know if judge will accept the motion ? Do I address it only if she rejects motion? If so are my points of difficulty getting my son there worth mentioning (distance , loss of crucial academic time , athletic consequences , internship , etc)? I want to have my ducks in a row so depending on how judge rules with subpoena. Can you give me suggested framework on what to prepare fur either scenario ? Thank you
Expert:  Ely replied 1 year ago.

A motion to quash challenges a subpoena on it being illegal, ambiguous, requiring hardship, etc. It can also be done to quash service if service was done improperly.

A motion to strike challenges the form or format of the subpoena. For example, missing verbiage that is required.

One wants to bring everything that they have at once.

I really cannot suggest a "framework" for the scenario because this goes beyond my abilities in this forum to do. I am sorry.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
Does one motion seem more appropriate fur the issues at hand thav the other ? Do you have suggestions on my question regarding the question of my sons difficulties gettibg to court?
Expert:  Ely replied 1 year ago.

My apologies for the wait. I have to step away from the site now, and can only reply to any follow up in the evening.

Honestly, it is hard for me to gauge which motion to use. I have not seen the document and do not know the details aside from the general ones you have described. I really do not wish to mislead you. Ergo, I cannot say. If in doubt, one can use a 'hybrid" Motion for both.

As for your son getting to Court - the activities do not matter. It is the distance which does matters - no more than "50 airline miles distant from either his residence, place of employment, or place of business, whichever is nearest to the place to which he is subpoenaed." Mass Civil Procedure Rule 45(d)(2).

Also, in Mass, the subpoena must be notarized (if I stated it does not have to be earlier, my apologies).

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
Thank you for clarifyingthsy MA requires notarized subpoena. But I assume MA law for subpoena does not appl in this case if out of state service, is that correct ? Is there a hybrid motion that I can locate ? Not sure what it is called to find it online . I have written everything that the subpoena contained on the earlier portion of these communications so you can see it exactly as I receivers it. I wrote every detail it contained . FYI- I just received a text from the opposing attorney at this late hour saying they will be serving my husband a subpoena tonight . Court is in am ! So we need to leave by 7 am. He can't even reach his company to let them know as its so late . She also also stated refusal to accept the affidavit in lieu of my sons presence . I can only see waiting so last minute to send subpoena as a stalk tactic so I would to have time to make a motion ahead if court date . She had one week to do this and does it the night before court . That surely seems an unfair burden to out on the witness
Expert:  Ely replied 1 year ago.

My apologies for the wait, as I was away when you had responded.

BOTH states' laws apply. No, there is no hybrid motion.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!