Randolph v. The State of Nevada, Ex Rel, Nevada Department of Corrections et al

Filing 54

ORDER granting in part 52 Motion for Issuance of Subpoena Duces Tecum and Leave to Serve Same via Certified Mail Upon Third Party. The Clerk's Office is directed to send Plaintiff a subpoena duces tecum issued to Embarq Pay Phone Servic es, Inc. (issued and mailed to Plaintiff 1/8/2014). In view of the discrepancies surrounding Embarq's Nevada corporate status or its resident agent, if any, the court at this time declines to specifically authorize service in the mode Plaintiff has requested. Signed by Magistrate Judge William G. Cobb on 1/7/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES RANDOLPH,

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Plaintiff,
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vs.
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THE STATE OF NEVADA, ex rel, NEVADA)
DEPARTMENT OF CORRECTIONS, et al., )
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Defendants.
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______________________________________)

3:13-cv-00148-RCJ-WGC
ORDER
re Plaintiff’s Motion for Issuance of
Subpoena Duces Tecum and Leave to Serve
Same via Certified Mail Upon Third Party
Doc. # 52

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Before the court is Plaintiff’s Motion for Issuance of Subpoena Duces Tecum and Leave to Serve

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Same via Certified Mail Upon Third Party. (Doc. # 52.) Defendants State of Nevada filed a Non-

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Opposition to Plaintiff’s motion. (Doc. # 53.)1

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Plaintiff’s motion requests two-fold relief from this court. First, Plaintiff seeks an order directing

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that this court issue a subpoena duces tecum upon former Defendant Embarq Pay Phone Services, Inc.

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(“Embarq”). This component of Plaintiff’s motion is GRANTED. The Clerk’s Office is directed to send

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Plaintiff a subpoena duces tecum issued to Embarq Pay Phone Services, Inc.

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The second component of the motion requests that this court authorize service of Plaintiff’s

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subpoena duces tecum upon Embarq by certified mail sent to Embarq’s resident as identified in Exhibit 2

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of Plaintiff’s motion (Doc. # 52 at 12). Exhibit 2 appears to be an undated print-out from the Nevada

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Secretary of State’s office. It identifies “The Corporation Trust Company of Nevada” as the resident

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agent for “Embarq Payphone Services, Inc.”2 However, when the court conducted a business entity

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Defendant Embarq Pay Phone Services, Inc., was dismissed with prejudice from this litigation. The only remaining
Defendants are those represented by Deputy Attorney General Benjamin Johnson.
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The court also notes that Plaintiff’s Exhibit 2 reflects that Embarq Payphone Services, Inc.’s business licence
expired on 10/31/2013.

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search at the Nevada Secretary of State website (https://www.nvsilverflume.gov/businessSearch), the

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website responded there were “no results for entity name search on Embarq Payphone Services, Inc.”

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See, Exhibit 1 hereto.

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The Business Entity Information Plaintiff submitted (Exhibit 2; Doc. 52 at 12) for Embarq

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Payphone Services, Inc., also contained a “Nevada Business I.D.” of NV19971285398. The court

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utilized the Nevada Secretary of State website’s “Business ID” search capability. No results for a Nevada

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Business ID with that number was located. See, Exhibit 2 hereto. Therefore, it does not appear Embarq

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is presently a registered Nevada corporation, or that The Corporation Trust Company of Nevada is a

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resident agent for Embarq.

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The court is aware that there is a question whether service can be effected other than by personal

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service or by delivery to the recipient’s place of business. See, Ott v. City of Milwaukee, 682 F.3d 552,

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557 (7th Cir. 2012) (personal service not required); Hall v. Sullivan, 229 F.R.D. 501 (D. Md. 2005)

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(discussing split of authority). However, in view of the discrepancies surrounding Embarq’s Nevada

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corporate status or its resident agent, if any, the court at this time declines to specifically authorize

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service in the mode Plaintiff has requested.

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IT IS SO ORDERED.

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DATED: January 7, 2014.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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