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Wells Fargo Bank NA v. Wyo Tech Investment Group LLC

United States District Court, D. Arizona

July 16, 2019

Wells Fargo Bank NA, Plaintiff,
v.
Wyo Tech Investment Group LLC, et al., Defendants.

          ORDER

          DOMINIC W. LANZA, UNITED SLATES DISTRICT JUDGE

         INTRODUCTION

         Pending before the Court is the “Ex Parte Motion for Leave to Make Alternative Service of Subpoenas on Nonparty Dennis M. Danzik” filed by Interpleader Defendants CWT Canada II Limited Parnership, Resource Recovery Corporation, and Jean Noelting (together, the “CWT Parties”). (Doc. 173.)[1] For the following reasons, the Court grants the motion.

         BACKGROUND

         On January 12, 2018, Wyo Tech served its MIDP responses in this case, identifying Dennis M. Danzik (“Danzik”) as a person with relevant, discoverable information and listing Danzik's address as c/o Dennis Wilenchik of Wilenchik & Bartness-Wyo Tech's counsel in this action. (Doc. 174-1 at 2-5.) Wilenchik & Bartness previously represented Danzik in several other matters (Doc. 174 ¶ 3) and indicated in a recent filing that “[t]he instant case is one of several, approximately seven (7) litigation cases relating to Mr. Dennis Danzik . . . in some form or another, which [Wilenchik & Bartness] is handling” (Doc. 140 at 6).

         On February 3, 2019, the CWT Parties served Wilenchik & Bartness with a Rule 30 deposition notice for Danzik's deposition. (Doc. 174-2.) After some back and forth, Wilenchik & Bartness informed the CWT Parties that it did not represent Danzik in this case and could not accept service of the subpoena on his behalf. (Doc. 174-3.) Wyo Tech has since amended its MIDP responses to indicate that it is “currently unaware of Dennis Danzik's physical residential address” (Doc. 174-6 at 3) and has provided the CWT Parties with Danzik's “last known business address”-an address in Scottsdale, Arizona (Doc. 174-7 at 2).

         The CWT Parties have unsuccessfully attempted to serve Danzik at the Scottsdale business address three times. (Doc. 174-8.) On the second attempt, the process server noticed a dumpster in the back of the building “labeled with the names of Danzik Applied Sciences and Inductance Energy Corp., ” two entities with which Danzik is affiliated. (Id. at 2.) The CWT Parties, thus, state they “are confident that . . . this is Mr. Danzik's business address.” (Doc. 173 at 5.) Indeed, less than two months ago, the Wall Street Journal published a lengthy article discussing Danzik's role at Inductance Energy Corp. See Dan Neil, The Future of Everything (A Special Report)-One Man's Quest to Power the World with Magnets: Magnetic Power or Pseudo-Science? Dennis Danzik's Whirligig Calls for the Suspension of Disbelief-and the Laws of Physics, Wall St. J., May 17, 2009 at ¶ 10. This article identified Danzik as one of Inductance's officers and included various statements Danzik had made “during an interview at IEC's facility in Scottsdale, Ariz.” Id.

         The CWT Parties also have unsuccessfully attempted to serve Danzik nine times at the home address in Cody, Wyoming he listed on his most recent bankruptcy petition. (Doc. 174-9.) In a phone call with the Arizona process server, Danzik indicated that this address was his home and that he could be served there. (Doc. 174-8 at 2-3.)

         On May 15, 2019, the CWT Parties were able to serve Danzik when he attended a hearing in his Wyoming bankruptcy case, but they inadvertently served only subpoenas that were returnable in Wyoming. (Doc. 174 ¶¶ 13-14.) To date, the deposition has not happened, the parties have not been able to arrange an alternative deposition date, and Danzik has not produced any documents. (Id. ¶ 16.) And the CWT Parties do not believe they will be able to enforce the subpoenas in Wyoming because “Danzik no longer lives there and seems to travel there only rarely as well.” (Id. ¶ 14.) As such, the CWT Parties seek through the instant motion “leave to make alternative service of a subpoena returnable in Arizona.” (Doc. 173 at 9.)

         ANALYSIS

         A subpoena must be served on a third party in compliance with Federal Rule of Civil Procedure 45(b)(1). Rule 45(b)(1) provides, in relevant part:

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 the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law.

         Although the Ninth Circuit has not interpreted this provision in a published opinion, many lower courts have interpreted it as requiring personal service. See, e.g., Fujikura Ltd. v. Finisar Corp., 2015 WL 5782351, *5 (N.D. Cal. 2015) (collecting cases). Other courts, however, have concluded personal service is not required under Rule 45(b)(1). See, e.g., Ott v. City of Milwaukee, 682 F.3d 552, 557 (7th Cir. 2012) (“We see no reason to inflate the costs of litigation by ruling out [certified mail as a] sensible option for serving a subpoena (along with the necessary fees) and requiring parties to hire a second person for service, at least in the absence of any language in the Rule that compels such a result.”). See generally S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary, Rule 45, at 1195 (2018) (noting that “[t]he traditional rule has been that personal service is required” but “[m]ore recently, a number of courts have upheld service by certified mail or other forms of service that are reasonably calculated to achieve actual notice”). Those courts have reached that result for at least four reasons, all of which this Court finds persuasive.

         First, the relevant text of Rule 45(b)(1)-“delivering a copy to the named person”- does not on its face indicate that personal service is required. Doe v. Hersemann, 155 F.R.D. 630, 630 (N.D. Ind. 1994) (interpreting older version of provision and finding that “[n]othing in this language suggests that in-hand, personal service is required to effectuate ‘delivery,' or that service by certified mail is verboten”) (emphasis omitted); OceanFirst Bank v. Hartford Fire Ins. Co., 794 F.Supp.2d 752, 754 (E.D. Mich. 2011) (“The text of the rule does not unequivocally require delivery by hand-to-hand exchange; instead, service ‘requires delivering a copy' of the subpoena to the witness. The method of delivery is not specified.”). Black's Law Dictionary defines “delivery” as “[t]he act by which the res or substance thereof is placed within the actual or constructive possession of another.” Delivery, BLACK'S LAW DICTIONARY 428 (6th ed. 1990). ...


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