Souza v. Thurston
Filing
16
MEMORANDUM DECISION denying 2 Motion to Compel. Signed by Magistrate Judge Brooke C. Wells on 9/4/18. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JOHN SOUZA, in his capacity as custodian of
ELEVATE, INC.,
Movant,
MEMORANDUM DECISION AND
ORDER
Case No. 2:18-mc-00023-DB-BCW
v.
District Judge Dee Benson
W. WRIGHT THURSTON,
Magistrate Judge Brooke Wells
Respondent.
Pursuant to 28 U.S.C. § 636(b)(1)(A) District Judge Dee Benson referred this case for
consideration.1 This case was involves a case in the District Court of Nevada, Case No. 2:17-cv01924.
It appears John Souza (Souza), in his capacity as custodian of Elevate, Inc., obtained a
subpoena in the Nevada action for W. Wright Thurston (Wright), seeking corporate and banking
records relating to Elevate, Inc. in the fall of 2017.2 According to the subpoena, Wright resides
in Midway, Utah.3 The subpoena required production of said documents in “Atlanta, Georgia”
by “November 9, 2017.”4 Souza served the subpoena via certified mail to a P.O. Box.5 Pending
before the court is Souza’s Motion for Order to Show Cause and to Compel Compliance with
1
ECF No. 5.
2
ECF No. 2-1.
3
Id.
4
Id.
5
ECF No. 2-2.
Subpoena.6 Wright has moved to quash the subpoena.7 The court finds Wright’s arguments
persuasive and thus DENIES Souza’s motion.
ANALYSIS
Rule 45(c)(2) of the Federal Rules of Civil Procedure provides:
A subpoena may command: (A) production of documents, electronically stored
information, or tangible things at a place within 100 miles of where the person
resides, is employed or regularly transacts business in person[.]
Midway, Utah, where Wright resides, is more than 100 miles away from Atlanta,
Georgia, where the subpoena commands production of the documents. In addition, it
appears the first service attempt was a P.O. Box address even though Souzas’ counsel has
a residential address for Wright.8 Notably, there does not appear to be binding precedent
in the Tenth Circuit favoring either hand-to-hand personal service or alternative means of
service.9 But this court has viewed service by certified mail as a means of alternative
service usually granted via motion after some attempts by personal service have proven
unsuccessful.10 Here, the first attempt at service was through certified mail at a P.O. Box,
even though counsel had a residential address.11 Under these circumstances, alternative
6
See ECF. No. 2.
7
ECF No. 13.
The Certificate of Service for ECF No. 2 has two addresses, the P.O. Box address and a
residential address for Wright.
8
See E.A. Renfroe & Co. Inc. v. Moran, No. 08-cv-732-RPM-KMT, 2008 WL 1815535, at *3
(D. Co. 2008).
9
See Vision Sec., LLC v. Xcentric Ventures, LLC, 2:13-cv-926, 2016 WL 2766635 (D. Utah
2016).
10
Souza’s counsel argues there is a hand-written note that says “REFUSED” on the Certified
Mail Receipt and this is proof Wright tried to evade service. Wright submitted a Declaration
11
2
service would not be warranted. Moreover, the 100 mile geographic limit set forth in
Rule 45(c)(2) for production of documents is clearly exceeded here, thus the motion to
compel is DENIED.12
DATED this 4 September 2018.
Brooke C. Wells
United States Magistrate Judge
with his papers wherein he adamantly claims he never received the subpoena. Wright claims he
first learned of this matter when he received the Motion for Order to Show Cause, which was
served at his residence. There is obviously a factual dispute between the parties, but the court
did not address it in order to reach its decision.
Wright submitted a Declaration with his papers, however, it cites the state statue instead of 28
U.S.C. §1746 and is not signed by him; therefore since it is unsworn its contents could not be
considered by the court in its analysis.
12
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