Kelly v. Hickman

Filing 86

ORDER Denying 84 Motion for Order to Show Cause and Vacating 82 Order. Signed by Magistrate Judge Brenda Weksler on 8/24/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:17-cv-02409-APG-BNW Document 86 Filed 08/24/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Gregory Kelly,

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Plaintiff,
Order re [84]

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Case No. 2:17-cv-02409-APG-BNW

v.
Randall Mark Hickman,

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Defendant.

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Before the Court is an unopposed motion by plaintiff Gregory Kelly for an order to show

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cause. ECF No. 84. Kelly seeks to have nonparty Iraj Karimi show cause for his failure to obey a

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subpoena. Id. The Court will deny the motion because it lacks jurisdiction to issue a show-cause

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order.

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Kelly is a judgment-creditor who seeks information in aid of his endeavor to satisfy his

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judgment against defendant Randall Mark Hickman. ECF No. 74. Kelly obtained from the Clerk of

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Court a subpoena directed at Hickman’s landlord, Iraj Karimi. ECF No. 72. Karimi initially

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attempted to comply with the subpoena but his production to Kelly was supposedly incomplete. ECF

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No. 74. Eventually, Karimi stopped returning Kelly's calls and, as a result, Kelly sought an

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enforcement order from this Court. Id.

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The Court granted Kelly an enforcement order. ECF No. 82. In its order, the Court

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identified two objectionable issues with the subpoena. Id. at 2. First, the Court noted that Rule 45

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may require personal service of a subpoena, but Kelly served his subpoena via U.S. Mail. Id. (citing

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Prescott v. Cnty. of Stanislaus, 2012 WL 10617, at *3 (E.D. Cal. Jan. 3, 2012)). Second, Rule 45

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requires that the place of compliance be within 100 miles of where the subpoenaed person resides,

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is employed, or regularly transacts business, but although Karimi resides in California, the

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subpoena's place of compliance was more than 100 miles away in Gilbert, Arizona. Id. (citing Fed.

Case 2:17-cv-02409-APG-BNW Document 86 Filed 08/24/21 Page 2 of 3

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R. Civ. P. 45(c)(2)(A)). Ultimately, however, the Court determined that Karimi waived these issues

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by failing to timely raise them with Kelly or this Court, id. (citing Moon v. SCP Pool Corp., 232

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F.R.D. 633, 636 (D. Nev. 2005)), and it issued the enforcement order.

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Now, Kelly has returned to this Court to seek a show-cause order. ECF No. 84. Kelly relays

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that he served the enforcement order upon Karimi via U.S. Priority Mail. Id. at 2. Over the next few

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weeks following service, Kelly sent Karimi three voicemails, a meet-and-confer letter, and a text

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message. Id. After Karimi ignored Kelly's warning about returning to this Court for a show-cause

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order, Kelly filed the underlying motion. Id.

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The Court must deny Kelly's motion. "The only authority in the Federal Rules of Civil

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Procedure to sanction a nonparty to an action for failure to comply with a subpoena is Rule 45(g)."

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Molina v. City of Visalia, 2015 WL 5193584, at *2 (E.D. Cal. Sept. 4, 2015) (citing Pennwalt Corp.

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v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983)). Rule 45(g) provides that "[t]he court

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for the district where compliance is required . . . may hold in contempt a person who, having been

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served, fails without adequate excuse to obey the subpoena or an order related to it." Fed. R. Civ. P.

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45(g).

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Here, the place of compliance listed on the subpoena is Gilbert, Arizona. This city is much

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farther than 100 miles away from Karimi's address in Carlsbad, California. Further, Las Vegas,

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Nevada, is likewise more than 100 miles from Carlsbad. At bottom, however, the place of

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compliance for the subpoena is not Las Vegas, Nevada, which means that this Court lacks the

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authority to issue a show-cause order. Fed. R. Civ. P. 45(g).

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Further, in reviewing the caselaw related to plaintiff's request, the Court concludes that it

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erred when it granted Kelly an enforcement order. The basis for the Court's conclusion is that Rule

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45 provides "the serving party" of a subpoena "may move the court for the district where compliance

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is required for an order compelling production or inspection." Fed. R. Civ. P. 45(d)(2)(B)(i). Here,

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that place of compliance is either in Gilbert, Arizona, or someplace within 100 miles of Karimi's

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residence in California. Therefore, the Court had no jurisdiction to enter an enforcement order.

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Agincourts Gaming, LLC v. Zynga, Inc., 2014 WL 4079555, at *3 (D. Nev. Aug. 15, 2014) ("In

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short, the place where compliance is required . . . is the Northern District of California, not in this
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Case 2:17-cv-02409-APG-BNW Document 86 Filed 08/24/21 Page 3 of 3

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District.

Accordingly, the Court lacks jurisdiction to rule on the pending subpoena-related

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motions"); Youngevity Int'l, Corp. v. Smith, 2017 WL 6418961, at *3 (S.D. Cal. Dec. 15, 2017)

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("Absent a transfer, only a court in the district of the place of compliance has jurisdiction to compel

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compliance, or modify or quash a subpoena."); BNSF Railway Co. v. Alere, Inc., 2018 WL 2267144,

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at *10 (S.D. Cal. May 17, 2018) ("Since compliance with the subpoena would occur outside of this

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district, the Court lacks jurisdiction to compel compliance with or to modify the subpoena.").

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Accordingly,

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IT IS ORDERED that plaintiff's motion for an order to show cause (ECF No. 84) is

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DENIED.

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IT IS FURTHER ORDERED that the Court's order at ECF No. 82 is VACATED.1

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DATED: August 20, 2021.

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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The Court expresses no opinion on whether Kelly should seek a new subpoena that complies
with the 100-mile rule or whether he should try to enforce the operative subpoena in the District of
Arizona.

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