Russell v. Maman

Opinion

1 2 3 6 7 STEPHEN RUSSELL, Case No. 18-cv-06691-RS (AGT)

8 Plaintiff, ORDER DENYING DEFENDANTS’ 9 v. MOTION FOR ORDER TO SHOW CAUSE REGARDING CONTEMPT 10 NIR MAMAN, et al., Re: Dkt. No. 231 Defendants. 11

12 13 Before the Court is defendants Legion Industries, Inc., Legion Industries, Inc. d/b/a Shields 14 Corps Security, and Ryan Micheletti’s (collectively “Micheletti/Legion”) motion for an order 15 requiring non-party Tara Walsh to show cause why she should not be held in contempt for failing 16 to comply with a deposition subpoena. Their motion is denied without prejudice. 17 On February 5, 2021, pursuant to Federal Rule of Civil Procedure 45, Micheletti/Legion 18 issued a subpoena commanding Tara Walsh, residing at 394 Whippoorwill Road, Chappaqua, 19 New York 10514, to appear for a remote deposition on February 26, 2021, at 9:00 a.m. “via 20 Zoom.”1 Dkt. 231-1 at 2 (Subpoena). On February 6, 2021, a “licensed private detective” 21 personally served the subpoena on Walsh’s father at her Chappaqua, New York residence. Id. at 5 22 (Affidavit of Service). According to Micheletti/Legion, Walsh “initially agree[d]” to the February 23 26, 2021 deposition date, but then “failed to contact the counsels for Defendants to confirm her 24 deposition” and ultimately failed to attend the Zoom deposition. Dkt. 231 at 2–3. Over four 25 months later, Micheletti/Legion filed the instant motion seeking to enforce the subpoena. 26 Rule 45 governs discovery of non-parties by subpoena. Under that rule, subpoenas are 27 1 issued from the court where the action is pending, but challenges to those subpoenas, “including 2 motions to hold a person in contempt for failure to obey a subpoena, are to be decided by ‘the 3 court for the district where compliance is required.’” Webb v. Cty. of Stanislaus, 2021 WL 4 1931507, at *1 (E.D. Cal. Apr. 30, 2021) (quoting Fed. R. Civ. P. 45(g)). For subpoenas seeking 5 depositions of non-parties, the place of compliance must be “within 100 miles of where the person 6 resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A). 7 “When the court where compliance is required did not issue the subpoena, it may transfer a motion 8 under this rule to the issuing court if the person subject to the subpoena consents or if the court 9 finds exceptional circumstances.” Fed. R. Civ. P. 45(f). The issuing court otherwise lacks 10 jurisdiction to enforce the subpoena if compliance is required in another district. See e.g., Webb, 11 2021 WL 1931507, at *1 (“Although this Court is the issuing court, the United States District 12 Court for the District of Utah is the court for the district where compliance is required. . . . The 13 Court therefore lacks jurisdiction to enforce the subpoena and will deny Plaintiffs’ application [for 14 an order requiring the non-party to show cause regarding contempt for failure to obey the 15 subpoena] without prejudice.”); Chambers v. Whirlpool Corp., 2016 WL 9451360, at *3 (C.D. 16 Cal. Aug. 12, 2016) (“[T]he court lacks jurisdiction to compel [non-party] to comply with the 17 subpoena because the subpoena requires compliance in [another district].”); First Am. Cinema, 18 LLC v. Chicken Soup for the Soul Ent., Inc., 2021 WL 1526759, at *1 (C.D. Cal. Apr. 7, 2021) 19 (same and collecting cases). 20 Here, Micheletti/Legion assert that “the Subpoenas sought compliance in this district, 21 however the request was made for Walsh to appear via Zoom from any location she desired.”2 22 Dkt. 231 at 4. The sole subpoena at issue here commands Walsh, who resides in Chappaqua, New 23 York, to appear for a remote deposition by Zoom. Though this Court issued that subpoena, there 24 is no indication that compliance is (or could be) required in this District, see Fed. R. Civ. P. 25 45(c)(1). Indeed, Micheletti/Legion appear to acknowledge that the place of compliance is not in 26 2 It is unclear what “Subpoenas” Micheletti/Legion are referring to, given that there is only one 27 subpoena at issue in the pending motion. To the extent Micheletti/Legion have issued any 1 this District, but rather in New York, where Walsh resides. See Dkt. 231-2 (February 25, 2021 2 |} email from Micheletti/Legion’s counsel to Walsh asking her if she would be attending her 3 || “deposition set for tomorrow [February 26] at 9:00 am eastern time (your time) [] via zoom”) 4 || (emphasis added). Accordingly, the Court lacks jurisdiction to enforce the subpoena and denies 5 || Micheletti/Legion’s motion without prejudice. 7 || Dated: July 29, 2021 8 9 AL “TSE 10 United States Magistrate Judge 1] 12

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