United States District Court, D. Nevada
ORDER DENYING WITHOUT PREJUDICE DEFENDANTS'
MOTION FOR SANCTIONS/MOTION TO COMPEL (RE: ECF NO.
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
the court is the motion of Defendants TK Products, LLC, Kurt
O. Bauer and Trent Farrer to hold Livespark, Inc., in
contempt and to compel Livespark's compliance with a
subpoena (ECF No. 42). No response has been made to
Defendants' motion either by Livespark or other parties
to this action.
court denies Defendants' motion without prejudice because
of what the court perceives as procedural irregularities with
regard to Defendants' underlying subpoena and motion.
starting point, due process requires that the individual or
company against whom contempt is sought receive notice and
have an opportunity to be heard. See, e.g., U.S.S.E.C. v.
Hyatt, 621 F.3d 687, 694 (7, h Cir. 2010).
According to the certificate of service accompanying
Defendants' motion, service was only made via CM/ECF upon
counsel for Plaintiffs. (ECF No. 42 at 6.) The failure to
serve Defendants' motion for sanctions/motion to compel
upon Livespark - or even upon its resident agent upon which
the subject subpoena was served - is problematic for the
court. It further appears to the court that the validity of
the service of the subpoena upon the entity which is
apparently the resident agent of Livespark, i.e.,
Nevada Legal Forms and Tax Services, Inc. (ECF No. 42-1 at
10) is somewhat suspect. Rule 45(b)(1) requires a Rule 45
subpoena for testimony to be delivered to the named person,
also tendering the fees for the witness' attendance (and
mileage). Although the subpoena served on Livespark included
payment of an amount for witness fees (ECF No. 42-1 at 10),
again it was not personally served on the custodian of
records or any corporate representative of Livespark who
would testify at the deposition. The viability of the service
of a subpoena upon a corporation's resident agent for
deposition testimony is problematic to the court.
court is also concerned about the place of compliance of the
subpoena. Obviously the deposition was attempted to be
undertaken in Las Vegas where Livespark's resident agent
has its place of business. Counsel's declaration states
she (Sandra Gustitus) unsuccessfully attempted to contact a
"Brett Bond at 415-613-3 872" to discuss the
"next day's deposition." (ECF No.42-1 at3.) Ms.
Gustitus does not explain Brett Bond's connection to
Livespark or the location of the 415 area code phone number,
which appears to be based in the Bay Area,
of the reference to the 415 telephone number, the court
researched Mr. Bond/Livespark on the internet. As reflected
in the print out of the court's internet search (copy
attached as Exhibit 1), Bloomberg reports Mr. Bond is
President of Livespark, the corporate headquarters being at
60 29* Street, San Francisco, California 94110. Bloomberg lists
the same telephone number for Mr. Bond as 1 is contained in
the Chenowith declaration. See Exhibit 1.
45(c) authorizes a subpoena if within 100 miles of the
deponent's residence or place of business. If Mr. Bond
and Livespark are located in San Francisco, the validity of a
subpoena to produce: documents at and to attend a deposition
in Las Vegas does not appear to satisfy the requirements of
Rule ¶ 45. At the very least, one would have suspected
Defendants would have served Livespark/Bond at the ¶ San
Francisco address which was seemingly available to counsel
for Defendants. The Livespark subpoena sought both documents
from and testimony of a Livespark representative.
(ECF No. 42-1 at 4.) Although it appears notice of the subpoena
duces tecum was served on counsel for Plaintiffs (ECF 42-1 at
14), in compliance with Fed.R.Civ.P. 45(a)(4), inasmuch as
the subpoena also sought the testimony of the deponent
("Custodian of Records of Livespark"), a Notice of
the Custodian's Deposition was additionally required.
Rule 30(b). Defendants have not included any notice of
records custodian deposition testimony with their motion.
While the absence of a formal and separate notice of
deposition might be excused because of Defendants'
service of the notice of the subpoena upon Plaintiffs
(Defendants' counsel also conferred with counsel for
Plaintiffs; ECF No. 42-1 at 24), the lack of service of a
notice of deposition is troubling.
because of issues relating to Defendants' compliance with
and satisfaction of Fed.R.Civ.P. 45, Defendants' motion
(ECF No. 42) is DENIED without prejudice. Defendants
may renew their motion, however, to attempt to resolve the
issues expressed by the court. If Defendants do so, a renewed
motion, as well as Defendants' original motion, shall be
served on Livespark's resident agent and a copy should be
served upon Livespark's place of business.
 The court notes that counsel for
Defendants only attended the deposition by telephone (ECF No.
42-1at 24), apparently in anticipation that no witness from
Livespark would attend.