Century International Arms Incorporated v. XTech Tactical LLC

D. Arizona

Century International Arms Incorporated v. XTech Tactical LLC

DecidedJanuary 13, 2020

Docket2:18-cv-03404

StatusUnknown

This text of Century International Arms Incorporated v. XTech Tactical LLC (Century International Arms Incorporated v. XTech Tactical LLC) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Century International Arms Incorporated v. XTech Tactical LLC, (D. Ariz. 2020).

Pincite

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Century International Arms Incorporated, No. CV-18-03404-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 XTech Tactical LLC, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiff Century International Arms Inc. (“Plaintiff”)’s 16 Ex Parte Motion for Leave to Make Alternative Service of Subpoena on Non-Party Jeffrey 17 Cahill (Doc. 73). The motion is granted. 18 BACKGROUND 19 Through discovery it has become clear that Jeffery Cahill and his entity 20 TangoDown, LLC1 (“TangoDown”) possess relevant information to this action. Plaintiff 21 has attempted to serve Cahill with a subpoena for his testimony on numerous occasions. 22 The process server attempted service on Cahill’s residence over five times. On the fourth 23 attempt the process server noted that “[i]t sounds like someone in the home is being 24 evasive.” (Doc 73 at 4.) After these failed attempts, the process server twice tried serving 25 Cahill at TangoDown’s business address. Plaintiff’s counsel also asked TangoDown’s 26 counsel if they were authorized to accept service on Cahill’s behalf, but received no 27 response. As a result, Plaintiff brought this Motion requesting leave to serve Cahill with a 28 1 TangoDown has also been served with a subpoena duces tecum in this action. 1 subpoena for his testimony in this action by (1) overnight delivery to Cahill’s residence 2 address, (2) overnight delivery to TangoDown’s business address, and (3) email address to 3 counsel for TangoDown, Richard Elley and R. Tracy Crump. 4 DISCUSSION 5 A subpoena must be served on a third party in compliance with Federal Rule of 6 Civil Procedure 45(b)(1). Rule 45(b)(1) provides, in pertinent part: 7 Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if 8 the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law. 9 The Ninth Circuit has not interpreted this provision in a published opinion. This District, 10 however, has held that Rule 45 does not require personal service. Wells Fargo Bank NA v. 11 Wyo Tech Inv, Group LLC, CV-17-04140-PHX-DWL, 2019 WL 3208114, at *3 (D. Ariz. 12 July 16, 2019). Rather, the “manner of service [must be] reasonably designed to ensure 13 actual receipt of the subpoena.” Id. 14 To better ensure receipt of the subpoena, in addition to the above steps, Plaintiff is 15 directed to affix a copy of the subpoena to Cahill’s residence address in addition to the 16 requested means of service. Finding these methods of service consistent with the Federal 17 Rules of Civil Procedure, 18 IT IS ORDERED that Plaintiff’s Ex Parte Motion for Leave to Make Alternative 19 Service of Subpoena on Non-Party Jeffrey Cahill (Doc. 73) is GRANTED. 20 IT IS FURTHER ORDERED granting alternative service of subpoena on Non- 21 Party Jeffrey Cahill in this action, returnable in Phoenix, Arizona, as follows: 22 (1) Overnight delivery to the properties located at 7651 West Rising Ridge Road, 23 Tucson, AZ 85743 and 4720 North La Cholla Boulevard, Suite 180, Tucson, AZ 85705; 24 (2) Posted to the front door of the properties located at 7651 West Rising Ridge 25 Road, Tucson, AZ 85743 and 4720 North La Cholla Boulevard, Suite 180, Tucson, AZ 26 85705; 27 (3) Email to counsel Richard Elley at rich@elleylaw.com; and 28 1 (4) | Email to counsel R. Tracy Crump rtc @rtclaw.com. 2 Dated this 13th day of January, 2020. Wars ) 1 A Whacrsay Sooo) 5 Chief United states District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Century International Arms Incorporated, No. CV-18-03404-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 XTech Tactical LLC, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiff Century International Arms Inc. (“Plaintiff”)’s 16 Ex Parte Motion for Leave to Make Alternative Service of Subpoena on Non-Party Jeffrey 17 Cahill (Doc. 73). The motion is granted. 18 BACKGROUND 19 Through discovery it has become clear that Jeffery Cahill and his entity 20 TangoDown, LLC1 (“TangoDown”) possess relevant information to this action. Plaintiff 21 has attempted to serve Cahill with a subpoena for his testimony on numerous occasions. 22 The process server attempted service on Cahill’s residence over five times. On the fourth 23 attempt the process server noted that “[i]t sounds like someone in the home is being 24 evasive.” (Doc 73 at 4.) After these failed attempts, the process server twice tried serving 25 Cahill at TangoDown’s business address. Plaintiff’s counsel also asked TangoDown’s 26 counsel if they were authorized to accept service on Cahill’s behalf, but received no 27 response. As a result, Plaintiff brought this Motion requesting leave to serve Cahill with a 28 1 TangoDown has also been served with a subpoena duces tecum in this action. 1 subpoena for his testimony in this action by (1) overnight delivery to Cahill’s residence 2 address, (2) overnight delivery to TangoDown’s business address, and (3) email address to 3 counsel for TangoDown, Richard Elley and R. Tracy Crump. 4 DISCUSSION 5 A subpoena must be served on a third party in compliance with Federal Rule of 6 Civil Procedure 45(b)(1). Rule 45(b)(1) provides, in pertinent part: 7 Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if 8 the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law. 9 The Ninth Circuit has not interpreted this provision in a published opinion. This District, 10 however, has held that Rule 45 does not require personal service. Wells Fargo Bank NA v. 11 Wyo Tech Inv, Group LLC, CV-17-04140-PHX-DWL, 2019 WL 3208114, at *3 (D. Ariz. 12 July 16, 2019). Rather, the “manner of service [must be] reasonably designed to ensure 13 actual receipt of the subpoena.” Id. 14 To better ensure receipt of the subpoena, in addition to the above steps, Plaintiff is 15 directed to affix a copy of the subpoena to Cahill’s residence address in addition to the 16 requested means of service. Finding these methods of service consistent with the Federal 17 Rules of Civil Procedure, 18 IT IS ORDERED that Plaintiff’s Ex Parte Motion for Leave to Make Alternative 19 Service of Subpoena on Non-Party Jeffrey Cahill (Doc. 73) is GRANTED. 20 IT IS FURTHER ORDERED granting alternative service of subpoena on Non- 21 Party Jeffrey Cahill in this action, returnable in Phoenix, Arizona, as follows: 22 (1) Overnight delivery to the properties located at 7651 West Rising Ridge Road, 23 Tucson, AZ 85743 and 4720 North La Cholla Boulevard, Suite 180, Tucson, AZ 85705; 24 (2) Posted to the front door of the properties located at 7651 West Rising Ridge 25 Road, Tucson, AZ 85743 and 4720 North La Cholla Boulevard, Suite 180, Tucson, AZ 26 85705; 27 (3) Email to counsel Richard Elley at rich@elleylaw.com; and 28 1 (4) | Email to counsel R. Tracy Crump rtc @rtclaw.com. 2 Dated this 13th day of January, 2020. Wars ) 1 A Whacrsay Sooo) 5 Chief United states District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Century International Arms Incorporated v. XTech Tactical LLC, Counsel Stack Legal Research, https://law.counselstack.com/opinion/century-international-arms-incorporated-v-xtech-tactical-llc-azd-2020.