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

Filing 59

ORDER denying 55 renewed motion. Signed by Magistrate Judge William G. Cobb on 02/19/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
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, et. al.
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Defendants.
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_______)

3:13-cv-00148-RCJ-WGC
ORDER

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Before the court is Plaintiff’s Renewed Motion for Issuance of Subpoena Duces Tecum

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and Leave to Serve Same Via Certified Mail Upon Third Party. (Doc. # 55.)1 Defendants have

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filed a non-opposition. (Doc. # 56.)

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On December 19, 2013, Plaintiff filed a motion requesting the issuance of a subpoena

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and for leave to serve the subpoena on a third party by certified mail. (Doc. # 52.) Plaintiff

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sought to have a subpoena issued to serve on dismissed defendant Embarq Payphone Services,

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Inc., (Embarq) via certified mail on Embarq’s resident agent (Id.) Defendants filed a non-

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opposition to that motion. (Doc. # 53.)

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On January 7, 2014, the court issued an order granting Plaintiff’s motion insofar as he

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sought the issuance of a subpoena duces tecum to serve on former defendant Embarq Pay

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Phone Services, Inc., and directed the Clerk’s Office to send Plaintiff a subpoena duces tecum

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issued to Embarq. (Doc. # 54.) However, to the extent Plaintiff sought an order for service of

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the subpoena via certified mail, the court denied this request. (Id.) The basis for denying this

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Refers to court’s docket number.

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request was that the court undertook a review of the Nevada Secretary of State’s filings and

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discovered that Embarq does not appear to be presently registered as a Nevada corporation.

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Nor did this search reveal a resident agent for service of process from a foreign corporation for

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Embarq. The court acknowledged that there is a question about whether service can be effected

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by other than personal service or delivery to a recipient’s place of business, but in view of the

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discrepancies surrounding Embarq’s Nevada corporate status, the court declined to specifically

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authorize service of the subpoena via certified mail.

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Plaintiff has since filed the instant renewed motion for issuance of the subpoena with

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leave to serve it via certified mail. (Doc. # 55.) Plaintiff contends that a clerical mistake was

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made by the court in searching for Embarq’s Nevada business identification number. He states

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that the correct number is NV19971285398, but the court entered NV19771285398.

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In addition, Plaintiff states that he has performed a new search with the correct business

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identification number which reveals that Embarq is now doing business as “Century Link,”

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which explains why there was no result when the court searched for Embarq, and that the

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Corporation Trust Company of Nevada remains the resident agent for Embarq doing business

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as Centurylink.

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The court performed a new search of the Nevada Secretary of State’s website under the

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“Nevada Business Search” function for Nevada Business ID NV19971285398, as Plaintiff

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indicated this is the correct identification number. A search under this identification number

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revealed the entity name “Centurylink Public Communications, Inc.,” which is listed as an

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active foreign corporation. When the court clicked on the name of the entity it revealed

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additional information, including that the entity is a Florida corporation with the Corporation

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Trust Company of Nevada as its registered agent in Nevada. Plaintiff also provides a copy of an

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amendment to the contract between NDOC and Embarq which identifies Embarq as doing

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business as Centurylink. (Doc. # 55 at 13.)

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Plaintiff has also provided a contract summary of the contract between Embarq and

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NDOC dated January 11, 2011, which identifies Embarq’s Nevada Business ID as

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NV20051287760. (Doc. # 55 at 9.) A search of the Nevada Secretary of State’s website for this

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Nevada Business ID returned the entity Embarq Communications, Inc. It is listed as an active

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foreign corporation from the state of Delaware with its registered agent in Nevada also listed

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as the Corporation Trust Company of Nevada.

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Rule 45(a)(3) provides that the “clerk must issue a subpoena, signed but otherwise

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blank, to a party who requests it. That party must complete it before service.” Rule 45 goes on

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to require that “[i]f the subpoena commands the production of documents...then before it is

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served on the person to whom it is directed, a notice and a copy of the subpoena must be served

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on each party.” Fed. R. Civ. P. 45(a)(4). “Any person who is at least 18 years old and not a party

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may serve a subpoena.” Fed. R. Civ. P. 45(b)(1). “Serving a subpoena requires delivering a copy

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to the named person and, if the subpoena requires that person’s attendance, tendering the fees

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for 1 day’s attendance and the mileage allowed by law...” Fed. R. Civ. P. 45(b)(1).

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While the personal service requirement is not explicit in Rule 45, the majority of courts

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to consider the issue, including the Ninth Circuit in an unpublished decision, have held that

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personal service of a subpoena duces tecum is required. See Chima v. U.S. Department of

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Defense, 23 Fed.Appx. 721, 2001 WL 1480640, at *2 (9th Cir. Dec. 14, 2001); see also Newell

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v. County of San Diego, 2013 WL 4774767, at *2-3 (S.D. Cal. Sept. 5, 2013); Prescott v. County

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of Stanislaus, 2012 WL 10617, at *3 (E.D. Cal. Jan. 3, 2012).

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While the court previously directed the Clerk to issue blank subpoenas to Plaintiff, he

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is not entitled to an order that service may be accomplished by certified mail. Instead, personal

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service by a person at least 18 years of age that is not a party to this action appears to be

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required. Should Plaintiff be able to properly effectuate service of the subpoena, it is up to him

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to determine which entity is the correct entity to be served, and the court cannot give him legal

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advice in this regard.

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In sum, Plaintiff’s renewed motion (Doc. # 55) is DENIED.
IT IS SO ORDERED.
DATED: February 19, 2014.

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WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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