York Holding, Ltd. v. Waid ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 YORK HOLDING, LTD., et al., Case No. 2:23-cv-02029-APG-NJK 7 Plaintiff(s), Order 8 v. [Docket No. 79] 9 FREDRICK P. WAID, 10 Defendant(s). 11 Pending before the Court is a renewed motion to quash in which nonparty Rayford 12 International argues that a subpoena improperly mandates the production documents in this 13 District given that Rayford International is located in New Hampshire. Docket No. 79. This matter 14 requires the Court to decide whether Rule 45(d)(3)(A)’s provision that a motion to quash must be 15 filed and decided in “the district where compliance is required” is a reference to the location 16 identified on the face of the disputed subpoena (Nevada) or the location of the subpoenaed 17 nonparty (New Hampshire). The Court determines it is the latter and DENIES Rayford 18 International’s renewed motion to quash without prejudice to its refiling in the appropriate forum. 19 I. BACKGROUND 20 This case involves a business dispute in which Plaintiffs contend that they are attempting 21 to “wrestl[e] back control of company assets from a removed director.” Docket No. 1 at ¶ 1. On 22 March 6, 2024, Defendant served a subpoena duces tecum on nonparty Rayford International. See 23 Docket No. 79-2 at ¶ 3. On its face, that subpoena commands the production of documents in Las 24 Vegas, Nevada. See id. Rayford International attests that it maintains no presence in Nevada, 25 transacts no business in Nevada, and has no representatives residing, working, or regularly 26 conducting business in Nevada. See Docket No. 79-1 at ¶ 7. Rayford International further attests 27 that its principal place of business is in New Hampshire and that its representative resides and 28 works in New Hampshire. See id. at ¶ 6. Counsel for Rayford International conferred with defense 1 counsel to no avail. See Docket No. 79-2 at ¶¶ 4-7. Rayford International now asks the Court to 2 quash the subpoena, arguing that, inter alia, Nevada is not the place of compliance as defined by 3 the governing rules. Docket No. 79 at 10-11. 4 II. STANDARDS 5 For subpoenas seeking documents, the place of compliance must be “within 100 miles of 6 where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 7 45(c)(2). A motion to quash a nonparty subpoena must be filed in “the court for the district where 8 compliance is required.” Fed. R. Civ. P. 45(d)(3)(A), (B).1 The movant bears the burden of 9 persuasion on a motion to quash, e.g., ATS Prods., Inc. v. Champion Fiberglass, Inc., 309 F.R.D. 10 527, 531 (N.D. Cal. 2015), including the burden of showing that the motion was filed in the correct 11 district, e.g., Cleary v. Kaleida Health, 1:22-cv-00026(LJV)(JJM), 2024 WL 1297708, at *2, 4 12 (W.D.N.Y. Mar. 27, 2024) (quoting Elite Mitigation Servs., LLC v. Westchester Surplus Lines Ins. 13 Co., No. 5:19-cv-381-TKW/MJF, 2020 WL 6127079, at *2 (N.D. Fla. May 1, 2020)). “When it 14 appears that subpoena-related motion practice may have been filed in the wrong district, the Court 15 may raise that potential defect sua sponte.” 4R4 Sons, LLC v. Tru G. Wilhelm, Inc., No. 2:21-cv- 16 01081-GMN-NJK, 2022 WL 2905468, at *3 n.3 (D. Nev. July 22, 2022) (citing Gutierrez v. Uni 17 Trans, LLC, 2021 WL 2821071, at *3 (D.N.M. July 7, 2021)). When a subpoena-related motion 18 has been filed in the wrong District, courts routinely deny that motion without prejudice to refiling 19 it in the proper tribunal. See, e.g., Europlay Cap. Advisors, LLC v. Does, 323 F.R.D. 628, 629-30 20 (C.D. Cal. 2018).2 21 1 The pending motion makes passing reference to obtaining relief as to privileged or 22 confidential information pursuant to Rule 26 of the Federal Rules of Civil Procedure. See, e.g., Docket No. 29 at 13. The protective order envisioned does not appear to be one to prevent the 23 production of documents, but rather one to protect information that is produced from being disseminated publicly. See id. at 6. The motion does not provide any argument that the proper 24 tribunal in which to file the motion is governed by Rule 26, as opposed to Rule 45. 25 2 The rules provide the potential for transferring a subpoena-related motion from the court where compliance is required to the issuing court. See Fed. R. Civ. P. 45(f). The authority to 26 make this decision rests with the court where compliance is required. See id. As such, this provision does not allow a movant to bypass, in the first instance, the court for the district where 27 compliance is required. See, e.g., Omnitracs, LLC v. Platform Sci., Inc., No. 20-cv-958-CAB- DDL, 2023 WL 2815363, at *1 (S.D. Cal. Apr. 6, 2023) (declining to adjudicate subpoena-related 28 dispute, despite the parties consenting to resolving the dispute in that court). 1 In the decade since the current rules were enacted, a recurring scenario has arisen that has 2 befuddled attorneys and split courts: determining the place of compliance for filing a motion to 3 quash a subpoena that on its face requires production of documents in a location (in this case, 4 Nevada) that the subpoenaed nonparty argues is improper because the nonparty is located 5 elsewhere (in this case, New Hampshire). Some courts have interpreted the place “where 6 compliance is required” for purposes of filing a motion to quash to mean the location identified on 7 the disputed subpoena for the document production, regardless of whether that place is not the 8 location of the subpoenaed nonparty. See, e.g., Pizana v. Basic Research, LLC, No. 1:18-cv- 9 00644-DAD-SKO, 2022 WL 1693317, at *2 (E.D. Cal. May 26, 2022) (collecting cases). These 10 courts have reasoned that such a rule provides an easy answer to the issue and eliminates the need 11 for intensive fact-finding as to this threshold issue, and that the place of compliance is technically 12 the location identified on the subpoena unless and until the court determines otherwise. See, e.g., 13 CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 710 (N.D. Tex. 2017).3 14 Other courts have interpreted the place “where compliance is required” for a motion to 15 quash a subpoena for the production of documents to mean the location of the subpoenaed 16 nonparty, even if different than the location for the production of documents identified on the face 17 of the subpoena. See HI.Q, Inc. v. ZeetoGroup, LLC, No. 22cv1440-LL-MDD, 2022 WL 18 17345784, at *7 (S.D. Cal. Nov. 29, 2022) (collecting cases); see also Europlay Capital Advisors, 19 323 F.R.D. at 629. These courts have reasoned that such an approach is consistent with the overall 20 21 3 Many of the cases discussing this issue do not squarely confront the scenario in which a subpoena on its face mandates document production in one place, while the motion to quash 22 provides an evidentiary showing that the subpoenaed nonparty is located in another place. For example, in CSS, the face of the subpoena required production of documents in Dallas and the 23 subpoenaed nonparty agreed that Dallas was the place of compliance based on its location pursuant to Rule 45(c)(2)(A). 354 F. Supp. 3d at 711. The crux of the issue before that court was whether 24 providing an email address through which to produce documents meant that the place of compliance was someplace other than Dallas. See, e.g., id. at 710. The reasoning in such cases 25 that it is impractical for the Court to obtain the facts to determine the geographical location of the subpoenaed nonparty is inapplicable in a case, like the one at hand, in which the motion itself seeks 26 to quash a subpoena based precisely on a factual showing regarding the geographic location of the subpoenaed nonparty. Moreover, it is not a complicated endeavor to resolve such a motion to 27 quash with respect to the proper filing location because a movant plainly cannot meet its initial burden of showing this is the place of compliance by arguing that this is not the place of 28 compliance. 1 framework of the rule, which is designed to ensure local resolution of subpoena disputes as a means 2 to protect the subpoenaed nonparty, a purpose that would be thwarted by requiring subpoenaed 3 nonparties to adjudicate a subpoena-related dispute in a distant forum based solely on the face of 4 the subpoena. See, e.g., Raap v. Brier & Thorn, Inc., No. 17-MC-3001, 2017 WL 2462823, at *3 5 (C.D. Ill. July 7, 2017).4 This Court has already ruled elsewhere that the place of compliance for 6 purposes of filing a motion to quash a subpoena must be tethered to the location of the subpoenaed 7 person. See 4R4 Sons, 2022 WL 2905468, at *4; Agincourt Gaming, LLC v. Zynga, Inc., No. 2:14- 8 cv-0708-RFB-NJK, 2014 WL 4079555, at *4 (D. Nev. Aug. 15, 2014); see also Lavoie v. Hyundai 9 Motor Am., No. 2:22-cv-00628-GMN-VCF, 2022 WL 10632400, at *1-2 (D. Nev. Oct. 18, 2022); 10 GBT Techs., Inc. v. Jackson, No. 2:20-cv-02078-APG-VCF, 2021 WL 2418555, at *2 (D. Nev. 11 June 14, 2021). The Court will continue to take that approach here. 12 Under the heading “Place of Compliance,” Rule 45(c) requires that document production 13 via subpoena must occur within 100 miles of the location5 of the subpoenaed nonparty. See Fed. 14 R. Civ. P. 45(c)(2)(A); see also in re Outlaw Labs, LP Litig., No. 18cv840 GPC (BGS), 2020 WL 15 5709386, at *2 (S.D. Cal. Sept. 24, 2020) (“Rule 45(c)(2)(A) defines where compliance is required 16 for production of documents or electronically stored information” (emphasis added)). The drafters 17 of the current version of Rule 45 plainly intended this provision to not just be a basis to quash a 18 non-compliant subpoena, but to also serve as the touchstone for determining which court should 19 decide that motion to quash: 20 To protect local nonparties, local resolution of disputes about subpoenas is assured by the limitations of Rule 45(c) [requiring that 21 the place of compliance be tethered to the location of the subpoenaed 22 4 Courts have also noted that determining that the place of compliance is the location of the 23 subpoenaed nonparty is logical given that resolution of the initial motion may result in an order for the subpoenaed nonparty to provide the disputed discovery, which may result in the later 24 commencement of contempt proceedings. See Fed. R. Civ. P. 45(g). Holding contempt proceedings in a district where the subpoenaed party is not located (simply because a subpoena 25 requires the discovery there) would present questions of personal jurisdiction as a matter of due process. See Gutierrez, 2021 WL 2821071, at *2. Such jurisdictional issues are avoided by having 26 a motion to quash decided in the district where the subpoenaed nonparty is located. See id. 27 5 The Court herein generally refers to the “location” of the subpoenaed nonparty as shorthand for the place where the subpoenaed nonparty “resides, is employed, or regularly 28 transacts business in person.” Fed. R. Civ. P. 45(c)(2)(A). nonparty] and the requirements in Rules 45(d) and (e) that motions 1 be made in the court in which compliance is required by Rule 45(c). 2 3 Fed. R. Civ. P. 45(f), Advisory Committee Notes (2013) (emphasis added). Hence, the intent 4 could not be clearer that the location of the subpoenaed nonparty, as identified in Rule 45(c), is 5 meant to control which district is the place of compliance for the purpose of filing a motion to 6 quash under Rule 45(d). While advisory committee notes are not necessarily the final answer in 7 interpreting the text of the rules, they are an important tool in doing so. See Torres v. Oakland 8 Scavenger Co., 487 U.S. 312, 316 (1988) (while views expressed by the advisory committee are 9 “not determinative” of a rule’s meaning, they are “of weight” in the judicial construction of the 10 text of the rule); see also United States v. Vonn, 535 U.S. 55, 64 n.6 (2002) (explaining that the 11 Advisory Committee Notes can “provide a reliable source of insight into the meaning of a rule”). 12 With respect to the place for resolving subpoena-related disputes, it would eviscerate the entire 13 purpose of these provisions in Rule 45 to interpret them as meaning that a subpoenaing party may 14 force a subpoenaed nonparty to litigate a subpoena-related dispute in an inconvenient district by 15 simply listing that location on the face of the subpoena. Raap, 2017 WL 2462823, at *3.6 16 The Court notes that it is not persuaded by Rayford International’s reliance on other legal 17 authority. Of particular significance, Rayford International argues vehemently that its motion to 18 quash this subpoena for the production of documents was properly filed in this district based on 19 the Ninth Circuit’s decision regarding the place of compliance for a motion to quash a subpoena 20 to testify at trial. In re: Kirkland, 75 F.4th 1030 (9th Cir. 2023). In particular, Rayford 21 International argues that the Ninth Circuit “impliedly recognized” that a motion to quash may be 22 filed in the issuing court even when the movants are located elsewhere because the Ninth Circuit 23 6 The Court is mindful of the unusual nature of this motion in that Rayford International is 24 effectively arguing against its interest by seeking to have this Court adjudicate its motion to quash a subpoena that it says violates the rules because Rayford International has no connection to 25 Nevada. Nonetheless, the Court has its own duty to correctly interpret and apply the law. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000). Moreover, it is not difficult to 26 imagine other parties taking the opposite position in future cases in which a subpoenaing party is seeking to avoid litigating a subpoena-related dispute in the distant location of the subpoenaed 27 nonparty by simply writing the subpoena to identify this District as the place of compliance. The Court will not interpret the text of Rule 45 to mean that the expressly desired protection for 28 subpoenaed nonparties does not exist simply because the current briefing takes that position. 1 was silent on that issue while addressing a motion to quash filed in that manner. See, e.g., Docket 2 No. 70 at 7-8. The Court disagrees with Rayford International’s reading of that case. Courts have 3 noted that the “place of compliance” analysis “may vary based upon the type of motion filed and 4 the facts available to the reviewing court.” HI.Q, 2022 WL 17345784, at *7. In the decision on 5 which Rayford International relies, the Ninth Circuit determined that the place of compliance for 6 testifying remotely at trial is the physical courthouse hosting the trial because “[n]o matter where 7 the witness is located, how the witness ‘appears,’ or even the location of the other 8 participants, trials occur in a court.” Kirkland, 75 F.4th at 1045 (emphasis in original). In 9 emphasizing that unique circumstance of a trial subpoena, the Ninth Circuit expressly 10 differentiated the place of compliance for trial subpoenas and the place of compliance for 11 deposition or document production subpoenas: 12 application of Rule 45(c)’s 100-mile limitation to both trial and deposition subpoenas is not internally inconsistent because unlike 13 trials, there is no ordinary or mandated location for depositions. The ‘place of compliance’ for a deposition subpoena can be any 14 appropriate location ‘within 100 miles of where the [witness] resides . . . .’ 15 16 Id.; see also id. at 1045 n.5 (citing Fed. R. Civ. P. 45(c)(2)’s geographical limitations regarding 17 production of documents as involving similar considerations).7 As the Ninth Circuit expressly 18 limited its reasoning and analysis to trial subpoenas, the Court does not find that its holdings 19 (implicit or otherwise) apply in this case involving a motion to quash a subpoena for documents. 20 For these reasons, the Court continues to conclude that the place of compliance for the 21 purpose of filing a motion to quash a subpoena seeking documents from a nonparty is the place 22 where that nonparty is located. 23 III. ANALYSIS 24 Having addressed the legal landscape for the motion to quash, the resulting analysis is 25 straight forward. Rayford International bears the burden of showing that its motion was filed in 26 27 7 In stark contrast to the Ninth Circuit’s focus in Kirkland on the physical location of the courthouse for remote testimony pursuant to a trial subpoena, remote testimony for a deposition is 28 deemed to take place “where the deponent answers the questions.” Fed. R. Civ. P. 30(b)(4). 1} the “court for the district where compliance is required.” Fed. R. Civ. P. 45(d)(3)(A); see also 2|| Cleary, 2024 WL 1297708, at *2, 4 (addressing initial burden). In contrast to that showing, Rayford International attests that it maintains no presence in Nevada, transacts no business in 4|| Nevada, and has no representatives residing, working, or regularly conducting business in Nevada. See Docket No. 79-1 at 2. Rayford International further attests that its principal place of business 6] is in New Hampshire and that its representative resides and works in New Hampshire. See id. In 7| short, although Rayford International bears the burden of showing that its motion to quash was filed in the place of compliance, its motion is predicated on its contention that Las Vegas, Nevada 9] is not the place of compliance. See also Docket No. 79 at 10-11. Given the showing made that New Hampshire is the place of compliance, as opposed to Nevada, the Court is not persuaded that 11] Rayford International has met its burden of showing that its motion to quash is properly filed in 12] this District based solely on the face of the subpoena identifying Las Vegas, Nevada as the location for documents to be produced. CONCLUSION 15 Accordingly, the motion to quash is DENIED without prejudice to its refiling in the 16]| appropriate forum.® 17 IT IS SO ORDERED. 18 Dated: April 3, 2024 19 7, AN — . Nancy J. K 20 United States Magistrate Judge 21 22 23 24 25 8 Tn an earlier filing on this matter, Rayford International made the eye-opening claim that it lacks any forum to challenge the subpoena if its motion to quash is denied here because a case 26] does not currently exist in New Hampshire. Docket No. 77 at 3. Rayford International fails to explain why it cannot initiate a miscellaneous case (or take other appropriate action) in federal 27} court in New Hampshire as a means for its motion to be heard. See D.N.H. Local Rule 2.4(a) (governing the opening of a miscellaneous case); see also https://www.nhd.uscourts.gov/fee- 28] schedule (last visited April 2, 2024) (establishing a $52 fee for initiating a miscellaneous case).