United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge.
issue is Respondents' “Opposition to Motion to
Quash Subpoena Underlying Actions [sic]:
Williams v. Big Picture Loans, LLC, 3:17cv461 (E.D.
Va.); and Galloway v. Big Picture Loans, LLC,
3:18cv406 (E.D. Va.) and Request for Award of Attorneys Fees
& Costs as Sanctions” (Doc. 8), which is in fact a
motion to dismiss this miscellaneous action for lack of
jurisdiction or, in the alternative, transfer this action to
the Eastern District of Virginia. In response, Petitioner
filed a “Reply in Support of Rosette's Motion to
Quash” (Doc. 10). In this Order, the Court will also
resolve Petitioner's Motion for Order Nunc Pro
Tunc to Correct Filing Date (Doc. 7), which is unopposed
initiated this miscellaneous action by filing a Motion to
Quash a Subpoena, which is related to two actions pending in
the United States District Court, Eastern District of
Virginia: 3:17-cv-00461-REP and 3:18-cv-00406-REP. (Doc. 2.)
Among other things, Respondents ask the Court to either
dismiss this action for lack of jurisdiction or transfer the
action to the Court in which the underlying actions are
parties disagree about whether the District of Arizona is the
“court for the district where compliance is
required” of the subpoena served on Petitioner, such
that this quash action is properly filed here under Federal
Rules of Civil Procedure 45(d) and (e). But even if it is,
Federal Rule of Civil Procedure 45(f) provides that the Court
may transfer Petitioner's Motion to Quash to the Eastern
District of Virginia, the Court that issued the subpoena,
“if the person subject to the subpoena consents or if
the [Court] finds exceptional circumstances.” The
Advisory Committee's note to Rule 45 states that
exceptional circumstances include instances in which a
transfer is “warranted in order to avoid disrupting the
issuing court's management of the underlying litigation,
as when that court has already ruled on issues presented by
the motion.” Thus, a risk of inconsistent rulings that
could disrupt the management of the underlying litigation can
be considered an exceptional circumstance. See Cont'l
Auto. Sys., U.S., Inc. v. Omron Auto Elecs., Inc., 14 C
3731m, 2014 WL 2808984, at *2 (N.D. Ill. June 20, 2014);
see also Moon Mountain Farms, LLC v. Rural Cmty. Ins.
Co., 301 F.R.D. 426, 429-30 (N.D. Cal. 2014) (collecting
cases and noting that attempting to circumvent the authority
of the presiding judge in the underlying action is an
exceptional circumstance contemplated by Rule 45).
the principal issues in the Motion to Quash is whether the
defendants in the underlying actions are “arms”
of a sovereign Tribe and whether Petitioner-the Tribe's
counsel-can avoid responding to the subpoena through an
extension of the Tribe's sovereign immunity. (Doc. 2,
Mot. to Quash at 9-12.) Respondents point out that the Judge
presiding over the underlying actions has already ruled that
the defendants do not qualify as arms of the Tribe and cannot
rely on the doctrine of sovereign immunity.
the question of the scope of the Tribe's sovereign
immunity from subpoenas-and its law firm's immunity by
extension-may be distinct from the question of the
defendants' sovereign immunity, the two are related in
the underlying actions. Because this Court may not be able to
resolve the issue of Petitioner's sovereign immunity from
the subpoena without resolving questions at issue in the
Eastern District of Virginia, the risk of inconsistent
rulings is real. As a result, the Court finds that this is
one of the exceptional circumstances contemplated by Rule
45(f) warranting transfer to the Eastern District of
Virginia, the court that is presiding over the underlying
actions and issued the subpoena. See Moon Mountain
Farms, 301 F.R.D. at 429-30; Cont'l Auto.
Sys., 2014 WL 2808984, at *2.
Court could stay these proceedings and wait for the Eastern
District of Virginia's final rulings-as well as any
rulings on appeal-on the relevant issues. But the Court finds
that any prejudice to Petitioner in having to appear in the
Eastern District of Virginia in support of its Motion to
Quash is minimal, because Petitioner has a law office in that
District and, in any event, Respondents already filed a
Motion to Compel the same subpoena in that District. The
issues in the Motion to Quash are so wrapped up in the issues
before the court in the Eastern District of Virginia that
they are best resolved by that court.
Court finds that an award of attorneys' fees and costs is
not warranted and will therefore deny Respondents'
request for that award.
Petitioner has demonstrated good cause for an Order nunc
pro tunc to correct the filing date in this matter, and
that request is unopposed by Respondents, so the Court will
grant Petitioner's Motion (Doc. 7).
THEREFORE ORDERED granting Petitioner's Motion for Order
Nunc Pro Tunc to Correct Filing Date (Doc. 7).
Petitioner's Motion to Quash (Doc. 2) is deemed filed
with this Court at 1:23 p.m. on December 12, 2018.
FURTHER ORDERED granting in part Respondents'
“Opposition to Motion to Quash Subpoena Underlying
Actions [sic]: Williams v. Big Picture Loans,
LLC, 3:17cv461 (E.D. Va.); and Galloway v. Big
Picture Loans, LLC, 3:18cv406 (E.D. Va.) and Request for
Award of Attorneys Fees & Costs as Sanctions” (Doc.
8). Respondents' request to transfer this matter to the
Eastern District of Virginia is granted, and Respondents'
request for an award of sanctions is denied.
FURTHER ORDERED that the Clerk of Court shall take all
necessary steps to ensure the prompt transfer of this action
to the United States ...