Kelly v. Hickman

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 4 ok 6 Gregory Kelly, Case No. 2:17-cv-02409-APG-BNW 7 Plaintiff, 3 Order re [74] 9 Randall Mark Hickman, 10 Defendant.

12 Before the Court is an unopposed motion by plaintiff Gregory Kelly to compel compliance || with a subpoena. ECF No. 74. The motion is set for an April 7, 2021 hearing. ECF No. 76.

14 Kelly is a judgment-creditor who seeks information in aid of his endeavor to satisfy his || judgment against defendant Randall Mark Hickman. ECF No. 74. The subpoena he asks the Court || to enforce is directed at Iraj Karimi (Hickman’s landlord) and appears to be duly issued by the Clerk || of Court. ECF Nos. 72 and 74. The subpoena, further, calls for the production of Hickman’s rental || application, lease agreement, and copies of all rental payments made by, for, or on behalf of || Hickman. ECF No. 72 at 3. Kelly claims that Karimi failed to provide a copy of Hickman’s rental || application, a complete copy of the lease, and copies of rental payments for 2020. ECF No. 74 at 5.

21 || He seeks an order compelling Karimi to produce those documents. /d.

22 Rule 69 of the Federal Rules of Civil Procedure provides that a judgment creditor “may || obtain discovery from any person—including the judgment debtor—as provided in these rules[.]”

24 |} Fed. R. Civ. P. 69(a)(2). In federal court “[plarties may obtain discovery regarding any || nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs || of the case.” Fed. R. Civ. P. 26(b)(1). To that end, Rule 45 provides “the only discovery method || by which information may be obtained from a nonparty.” Scruggs v Vance, 2011 WL 6368297, at || *10 (E.D. Cal. Dec 19, 2011).!

3 Here, under Rule 69(a)(2) Kelly may properly invoke Rule 45 to obtain discovery from || Karimi. The subpoena was served upon Karimi by a nonparty on December 16, 2020, and required || aresponse by January 5, 2021. ECF No. 72 at 3; ECF No. 73. The material sought by the subpoena || appears to fall within the broad scope of discovery. Based on Kelly’s motion, Karimi has failed to || comply.

8 There are, however, issues with the subpoena. For example, Rule 45 requires personal || service of a subpoena, Prescott v. Cnty. of Stanislaus, 2012 WL 10617, at *3 (E.D. Cal. Jan. 3, |) 2012), but it appears from the record that the subpoena was served upon Karimi via U.S. mail.

11 || Further, when—as here—a subpoena calls for the production of documents, the place of || compliance must be “within 100 miles of where the [subpoenaed] person resides, is employed, or |) regularly transacts business in person.” Fed. R. Civ. P. 45(c)(2)(A). It appears that Karimi resides || in California, ECF No. 74-1 at 15, but the place of compliance is more than 100 miles away in || Gilbert, Arizona. ECF No. 72 at 3.

16 That said, “[a] nonparty’s failure to timely make objections to a Rule 45 subpoena duces || tecum generally requires the court to find that any objections have been waived. Moon v. SCP Pool || Corp., 232 F.R.D. 633, 636 (D. Nev. 2005) (collecting cases and other authorities). However, “in || unusual circumstances and for good cause, the failure to act timely will not bar consideration of || objections to a Rule 45 subpoena.” /d. (citing McCoy v. Southwest Airlines Co., 211 F.R.D. 381, || 385 (C.D. Cal. 2002)) (alterations omitted). Unusual circumstances exist when “the subpoena 1s 24 ' Rule 45’s text speaks only in the defensive context of quashing or modifying subpoenas; it does || not speak in the offensive context of compelling compliance with subpoenas. See Fed. R. Civ. P. □□□□□□□□ (explaining that the court must enforce a party’s duty to “take reasonable steps to avoid imposing undue || burden or expense” on a deponent); Fed. R. Civ. P. 45(d)(2)(3) (explaining that the court “must quash or modify a subpoena” upon a showing that the subpoena falls into one of four impermissible categories).

27 Still, courts construe Rule 45 to govern motions to compel, too. See, e.g., Pennwalt Corp. v. Durand- Wayland, Inc., 708 F.2d 492, 494 n.5 (9th Cir. 1983) (“Once the person subpoenaed objects to the || subpoena... the party seeking discovery must obtain a court order directing compliance.”).

1 || overbroad on its face and exceeds the bounds of fair discovery” provided that “the subpoenaed || witness is a nonparty acting in good faith.” Id. 3 Here, the Court finds that Karimi has waived any objections to the subpoena by failing to || lodge those objections with Kelly or this Court. The court finds it significant that, based on Kelly’s |} motion, Karimi received actual notice of the subpoena and seemingly attempted (but failed) to |} comply. Further, for two reasons, this case does not present the unusual circumstance where there || is good cause to consider untimely objections. First, Karimi made no objections, untimely or || otherwise. Second, the Court in its discretion finds that the subpoena is not overbroad on its face || and nor does it exceed the bounds of fair discovery. Therefore, although the subpoena does not || strictly comply with Rule 45, the Court finds that Karimi has waived any objections. Kelly’s || motion will be granted on this basis.

12 Additionally, the Court notes that under the District of Nevada’s Local Rules “[t]he failure || of an opposing party to file points and authorities in response to any motion,” except a motion for || summary judgment or attorney’s fees, “constitutes a consent to the granting of the motion.” LR 7- |} 2(d). Here, neither Karimi nor Hickman responded to Kelly’s motion, and the motion is granted || on this basis, too.

17 Accordingly, 18 IT IS ORDERED that plaintiff's motion to compel compliance with subpoena (ECF No. || GRANTED. Iraj Karimi is ORDERED to produce the following documents to plaintiff by || April 23, 2021: e acopy of Randall Mark Hickman’s rental application for the lease of the 21 property located at 1438 Golfcrest Place, Vista, California 92081; 22 e acomplete copy of Hickman’s lease for the Golfcrest Place property; and 23 e copies of all payments made by, for, or on behalf of Hickman for the Golfcrest Place property.

IT IS FURTHER ORDERED that the April 7, 2021 hearing is VACATED.

DATED: March 31, 2021.

26 Gx lea Are 27 BRENDA WEKSLER 38 UNITED STATES MAGISTRATE JUDGE