Opinion
Civil Action 22-mc-00190-WJM-MEH
10-25-2022
B.V. REOMIE AUTHOMATERIAAL, Plaintiff, v. IDE INVEST AND REAL ESTATE, LLC, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant's Motion to Quash (ECF 1) the subpoena that Plaintiff issued to nonparty, Automattic, Inc. The Motion is ripe for review, and the Court finds that oral argument will not materially assist in its adjudication. For the reasons that follow, the Court respectfully recommends granting the Motion on the basis that there no longer may be need for the subpoena, thereby rendering it premature.
Plaintiff brought suit against Defendant in the District of Wyoming, claiming intentional interference with prospective economic advantage and intentional misrepresentation. After Defendant did not appear in that lawsuit, the presiding judge entered default judgment in Plaintiff's favor for nearly $5.8 million.
Plaintiff then commenced with post-judgment discovery to execute on that damages award. Knowing very little about Defendant, it began by subpoenaing the nonparty, Automattic, Inc. Plaintiff alleges that Defendant used Automattic, Inc. to run websites through which Defendant carried out the alleged fraud subject of its lawsuit. Plaintiff anticipates that it can learn the identities of individuals who acted on Defendant's behalf from their communications with Automattic, Inc. Plaintiff excludes from its request information about Automattic, Inc. itself or other nonparties.
Automattic, Inc. is a California corporation. The District of Wyoming issued the subpoena. The subpoena requested Automattic, Inc. to produce the information to Plaintiff's attorney in Fort Collins, Colorado, on August 15, 2022. Defendant reacted to the subpoena by filing a motion in the District of Wyoming case to quash it.
On September 8, 2022, U.S. Magistrate Judge Rankin for the District of Wyoming denied Defendant's Motion to Quash Subpoena for lack of jurisdiction. Finding that the subpoena “command[ed] production in Fort Collins, Colorado, a location within 100 miles of where Automattic, Inc. regularly transacts business as witnessed by its numerous employees along the Colorado Front Range,” Judge Rankin determined that enforcement jurisdiction lies with the District of Colorado rather than the District of Wyoming. ECF 6-2. The Motion's denial was without prejudice, and Judge Rankin gave Defendant leave to “refile[ it] in the district where compliance is required.” ECF 6-2 at 4. Twenty-two days later, on September 30, 2022, Defendant refiled its Motion in this Court.
Defendant complains that the subpoena is not as narrowly tailored as Plaintiff maintains. It contends that the request for Automattic, Inc. to “provide documents showing subscriber information for [the two identified domain names] including name, email address, telephone number, address, transaction and billing information, and log data including dates and times, and user's IP address when created and revised” within its scope “Defendant's private non-asset information.” However, Defendant does not explain how. Nevertheless, for purposes of this ruling, the Court assumes (without deciding) that Defendant has standing to object to the subpoena even though Plaintiff issued it to a third-party entity. Defendant also contends that Plaintiff knows more about it than it represents. Defendant says that Plaintiff already knows the identity and contact information for its corporate officer and its sole employee in the Netherlands.
Plaintiff argues that the Court should deny the Motion as untimely, having been filed forty-six days after the subpoena's return date of August 15, 2022. Plaintiff furthers that the twenty-two day span of time between the District of Wyoming's denial order and the filing of the Motion in the District of Colorado was unreasonably long. For purposes of this ruling, the Court assumes (without deciding) that the Motion is timely.
The Court need not resolve the standing and timeliness disputes because ultimately circumstances have changed that render the subpoena potentially premature. Defendant now has appeared in the District of Wyoming case, and it has asked the judge presiding over Plaintiff's case to lift the default against it. Should Defendant's request be granted, there no longer would be a default judgment for Plaintiff to execute.
Accordingly, the Court recommendsthat the Motion to Quash Subpoena [filed September 30, 2022; ECF 1] be granted on the procedural ground that the subpoena may be premature. The Court recommends further that Plaintiff be given leave to serve a new subpoena on Automattic, Inc. should the District of Wyoming deny Defendant's motion to lift the default entered against it.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply with the District Judge's practice standards for any specific requirements concerning the filing and briefing of objections.