On appeal from Superior Court, Chancery Division, General Equity Part, Essex County.
Before Judges J.h. Coleman, Muir, Jr. and Levy.
The opinion of the court was delivered by LEVY, J.S.C. (temporarily assigned).
In connection with a private investigation, the New Jersey Bureau of Securities (NJBS) issued an investigative subpoena requiring defendant's appearance at the NJBS offices in Newark. Defendant was served at his home in East Hills, New York by NJBS personnel. When defendant refused to comply with the subpoena, NJBS filed an enforcement action, pursuant to R. 1:9-6, by verified complaint. The court issued an order to show cause, to which defendant responded with a motion to dismiss the complaint,
to discharge the order to show cause and to quash the subpoena. The court ordered the enforcement requested by NJBS, and defendant appeals therefrom.
Defendant contends the subpoena cannot be served outside the State, while NJBS contends it is authorized to do so by N.J.S.A. 49:3-68 implemented by the court's long-arm jurisdiction based on minimum contacts with this state. We agree with defendant and reverse the order of August 25, 1993 which validated and enforced the subpoena.
NJBS posits N.J.S.A. 49:3-68(a), empowering a private investigation by NJBS "within or outside of this State," considered with N.J.S.A. 49:3-68(b), authorizing NJBS to "subpoena witnesses, compel their attendance, [and] take evidence," validates the investigatory subpoena it served on defendant. Enforceability, it argues, would follow if the subpoenaed witness had minimum contacts with this State. We reject this argument.
The authority granted by N.J.S.A. 49:3-68 anticipates enforcement of subpoenas in the courts of the foreign state where the investigation takes place and where the witness resides. This was the procedure followed in King v. Hochberg, 17 N.J. Super. 533, 86 A.2d 307 (Ch. Div. 1952). That court found no authority "to compel the examination of foreign witnesses not served with subpoena within this State." Id. at 535.
R. 4:14-7 and R. 1:9-4 make it clear that a court may only consider enforcing a subpoena served within this State.
The attendance of a witness at the taking of depositions may be compelled by subpoena, issued and served as prescribed by R. 1:9 insofar as applicable . . . .