Wells Fargo Bank NA v. Wyo Tech Investment Group LLC ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wells Fargo Bank NA, No. CV-17-04140-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Wyo Tech Investment Group LLC, et al., 13 Defendants. 14 15 Now pending before the Court is the Judgment Creditors’ “Ex Parte Motion for 16 Leave to Make Alternative Service of Subpoenas on Purported Wyo Tech Investors.” 17 (Doc. 262.) In a nutshell, the motion seeks permission to serve document subpoenas on 18 four non-parties (Mike Spaulding, Mike Wilhelm, Lewis Henkind, and Tom Burgess) by 19 means other than personal service—specifically, by (1) sending the subpoena, via 20 overnight FedEx, to each non-party’s last known address and (2) emailing a copy of the 21 subpoena to the attorney who previously filed a motion to quash on behalf of the non- 22 parties. 23 The motion will be granted in part and denied in part. In an earlier order in this 24 case, the Court addressed the circumstances under which a Rule 45 subpoena may be 25 served by means other than personal service. Wells Fargo Bank NA v. Wyo Tech Inv. Grp. 26 LLC, 2019 WL 3208114 (D. Ariz. 2019). Among other things, this order noted that, 27 although it is unclear whether a showing of diligence should be required in this context, 28 “[m]any courts” impose such a diligence requirement. Id. at *3 n.3. 1 Here, the materials submitted by the Judgment Creditors establish that they 2|| exhibited diligence when attempting to locate and personally serve three of the four non- || parties (Wilhelm, Spaulding, and Henkin). However, the Judgment Creditors have not 4|| established diligence with respect to the remaining non-party (Burgess), who appears to 5 || have simply moved out of state months ago. There is no evidence that Burgess 1s actively 6 || evading the subpoena and it is unclear what steps the Judgment Creditors have taken to discover his new out-of-state address. 8 Accordingly, IT IS ORDERED that: 9 (1) The Judgment Creditors’ Ex Parte Motion for Leave to Make Alternative 10 || Service of Subpoenas on Purported Wyo Tech Investors (Doc. 262) is granted in part and 11 || denied in part; and 12 (2) The Judgment Creditors are granted leave to serve nonparties Mike 13} Spaulding, Mike Wilhelm, and Lewis Henkind with document subpoenas, with a return date of two weeks after entry of this order, by (1) overnight FedEx to (a) for Mike 15 || Spaulding, 10869 North Scottsdale Road, #130-135, Scottsdale, Arizona 85254 and 2061 16|| East Charleston Avenue, Phoenix, Arizona 85022; (b) for Mike Wilhelm, 2059 East 17 || Michigan Avenue, Phoenix, Arizona 85022; and (c) for Lewis Henkind, 9673 East Oberlin 18 || Way, Scottsdale, Arizona 85262; and (2) e-mail to their counsel in this action, Mr. Zlaket, at tom@zlaketlaw.com. 20 Dated this 21st day of October, 2019. 21 22 7. _ 94 United States District Judge 25 26 27 28 _2-