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Souza v. Thurston

United States District Court, D. Utah, Central Division

September 4, 2018

JOHN SOUZA, in his capacity as custodian of ELEVATE, INC., Movant,
v.
W. WRIGHT THURSTON, Respondent.

          Dee Benson District Judge

          MEMORANDUM DECISION AND ORDER

          Brooke C. Wells United States Magistrate Judge

         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, No. 2:17-cv-01924.

         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 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 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]

---------

Notes:

[1] ECF No. 5.

[2] ECF No. 2-1.

[3] Id.

[4] Id.


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