ABKCO Music, Inc. v. Sagan

Filing 9

ORDER by Judge Edward M. Chen Granting 1 Third-Party's Motion to Quash. (emcsec, COURT STAFF) (Filed on 3/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ABKCO MUSIC, INC.,

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Plaintiff,

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ORDER GRANTING THIRD-PARTY’S
MOTION TO QUASH

v.
WILLIAM SAGAN,

Docket No. 1

Defendant.

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For the Northern District of California

United States District Court

Case No. 17-mc-80017-EMC

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Third Party George Ivan Morrison (“Van Morrison”) has moved to quash a subpoena

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served on him by Defendants in relation to a case pending in the Southern District of New York.

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Having considered the parties’ briefs and accompanying submissions, the Court GRANTS the

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motion to quash.

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Van Morrison argues that the subpoena should be quashed for both procedural and

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substantive reasons. Because the Court agrees that there is a procedural defect with the subpoena,

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it need not address the substantive arguments raised by Van Morrison.

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There is a procedural defect with the subpoena because Federal Rule of Civil Procedure 45

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provides that “[a] subpoena may command a person to attend . . . a deposition only as follows: (A)

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within 100 miles of where the person resides, is employed, or regularly transacts business in

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person.” Fed. R. Civ. P. 45(a)(1). Here, the subpoena served on Van Morrison commanded that

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he appear for a deposition in San Francisco, California. See Adamson Decl., Ex. A (subpoena).

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But there is insufficient evidence that San Francisco is within 100 miles of where Van Morrison

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resides, is employed, or regularly transacts business. Defendants contend that Van Morrison has a

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residence in Mill Valley, California, noting that (1) Van Morrison owned certain real property

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there from at least February 1982 to 2010 and that (2) even though a corporate entity is now the

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formal owner of that property, he still has an interest in the property as reflected by the fact that

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his daughter lives there. See Opp’n at 13-14 (emphasizing Van Morrison’s admission in his

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declaration that his daughter resides in Mill Valley). The problem for Defendants is that, even

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accepting the evidence of prior and current ownership1 and of Van Morrison’s daughter’s

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residence, that is still insufficient evidence of residence on the part of Van Morrison. Even if the

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Court assumes that Van Morrison has a current ownership interest in the Mill Valley real property,

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ownership in and of itself does not establish or even give rise to a prima facie case of residence. A

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person may easily own real property, e.g., as an investment, without residing there.2 Moreover,

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the Court has before it a declaration from Van Morrison testifying that he resides in Northern

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Ireland. See Van Morrison Decl. ¶ 2.
Accordingly, the Court concludes that there is insufficient evidence that Van Morrison

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For the Northern District of California

United States District Court

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resides in Mill Valley and thus quashes the subpoena. Van Morrison’s motion is granted. The

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Court instructs Van Morrison to serve this order on Plaintiff ABKCO Music, Inc., within three (3)

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days from the date of this order and to file a proof of service with the Court.
This order disposes of Docket No. 1.

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IT IS SO ORDERED.

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Dated: March 7, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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For purposes of this opinion, the Court considers the evidence of prior and current ownership
even though Van Morrison has objected to it on various grounds. See Reply at 3 n.2 (arguing that
the evidence “lack[s] foundation, [is] not authenticated, and [is] inadmissible hearsay”).
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This is true even accepting the proposition that a person may have more than one residence (as
opposed to domicile).
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