United States District Court, N.D. Texas, Dallas Division
MATT MARTORELLO, et al.
LULA WILLIAMS, et al.
MEMORANDUM OPINION AND ORDER
GREN SCHOLER UNITED STATES DISTRICT JUDGE.
Order addresses Respondents Lula Williams, Gloria Turnage,
George Hengle, Dowin Coffy, and Marcella P. Singh's
(collectively, "Respondents") Motion to Transfer
the Motion to Quash Subpoena [ECF No. 2], For the following
reasons, the Court grants the Motion.
Matt Martorello, Liont, LLC, and Eventide Acquisitions,
LLC's (collectively, "Movants") Motion to Quash
stems from a case currently pending in the Eastern District
of Virginia. See Williams v. Big Picture Loans, LLC,
3:17-cv-00461-REP (E.D. Va.). The Williams
plaintiffs allege that two consumer-lending companies
wrongfully claim to be tribal entities to shield themselves
from enforcement of Virginia usury laws, Movants' Mot. to
Quash 2-3. In particular, the plaintiffs allege that
Martorello transferred his lending company to the Lac Vieux
Desert Band of Lake Superior Chippewa Indians to evade legal
liability, that the tribe rebranded the company, and that the
company continues to operate with only limited involvement
from the tribe. Id. at 3 (citing Movants' App.
1-41). The plaintiffs assert claims under the Racketeer
Influenced and Corrupt Organizations Act and Virginia usury
laws, along with a claim for unjust enrichment. Id.
December 18, 2018, the Williams plaintiffs served a
document subpoena on Martorello's personal bank, Tolleson
Private Bank ("Tolleson"). Id. at 4
(citing Movants' App. 42-47). The subpoena seeks, among
other things, bank statements, canceled checks, documents
relating to debits and credits, deposit slips, records
relating to wire transfers, account applications, and
communications between Martorello and Tolleson. Id.
at 5 (citing Movants' App. 42-47). On January 7, 2019,
Movants filed their Motion to Quash Subpoena in this Court.
See ECF No. 1. On January 25, 2019, Respondents
filed their Motion to Transfer, seeking to transfer the
Motion to Quash to the Eastern District of Virginia, which is
the court that issued the subpoena, See ECF No. 2.
Rule of Civil Procedure 45(f) provides: "When the court
where compliance is required did not issue the subpoena, it
may transfer a [subpoena-related] motion ... to the issuing
court if the person subject to the subpoena consents or if
the court finds exceptional circumstances." Tolleson
does not consent to the transfer of the Motion to Quash, as
evidenced by its Objection to Respondents'] Motion to
Transfer. See ECF No. 6. "In the absence of
consent, the court may transfer in exceptional circumstances,
and the proponent of transfer bears the burden of showing
that such circumstances are present." Fed.R.Civ.P. 45(f)
advisory committee's note to 2013 amendment. When
analyzing whether transfer is appropriate, the Court's
prime concern should be avoiding burdens on local nonparties
subject to subpoenas, and it should not be assumed that the
issuing court is in a superior position to resolve
subpoena-related motions. In some circumstances, however,
transfer may be 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 or the same issues are likely to arise in
discovery in many districts. Transfer is appropriate only if
such interests outweigh the interests of the nonparty served
with the subpoena in obtaining local resolution of the
Court finds that exceptional circumstances are present in
this case. First, transferring the Motion to Quash will avoid
inconsistent rulings on the disclosure of Martorello's
financial information and will promote judicial efficiency.
Indeed, the judge presiding over the underlying action, Judge
Robert E. Payne, stated that a party seeking to transfer a
subpoena-related motion could "represent that"
Judge Payne is "prepared to resolve all of these
questions so that they will be resolved consistently."
Resp'ts' Reply 4 (citation omitted). Second, Judge
Payne is thoroughly familiar with the facts of the
Williams case, which are complex. Third, similar
motions have either been transferred to or decided by the
court that issued the subpoena. See, e.g.,
Movants' Resp. 4 ("There have been at least Five
subpoena-related motions transferred to the Eastern District
of Virginia .. . .")• Fourth, transfer is warranted
to "avoid disrupting the issuing court's management
of the underlying litigation." Fed. R. ClV. P. 45(f)
advisory committee's note to 2013 amendment. Fifth, the
issuing court has been actively involved in the discovery
process. See Mot. to Transfer 7 (noting that the
issuing court "has held two substantive,
discovery-related hearings since Movants filed their Motion
Court must weigh the above exceptional circumstances against
the "burdens on local nonparties subject to
subpoenas." Chem-Aqua, Inc. v. Nalco Co., No.
3:14-mc-71-D-BN, 2014 WL 2645999, at *1 (N.D. Tex. June 13,
2014). Tolleson argues that it would be "overly
burdensome for Tolleson to now engage counsel from the
issuing court" and that, even if the issuing court
"proffers accommodations to offset this burden,
Tolleson's counsel would still be ethically obligated to
determine whether there are any substantive or procedural
legal issues that need to be addressed and briefed."
Tolleson's Obj. 2. Movants also argue that Tolleson
"is headquartered and based in Dallas, and any
responsive documents are located in Dallas."
Movants' Resp. 13.
Court finds that Movants and Tolleson will likely need to
make only minimal modifications, if any, to already-filed
briefs should the Court transfer the Motion to Quash. As to
the argument that Tolleson's counsel must determine
whether any legal issues need to be addressed and briefed,
"[a]lmost any subpoenaed party could make the same undue
burden argument." Chem-Aqua, 2014 WL 2645999,
at *3. Regarding the argument that Tolleson is based in
Dallas, the Court notes the regularity of telephonic
appearances and Rule 45(f)'s explicit efforts to minimize
the burdens on nonparties. See Fed. R. Civ. P. 45(f)
advisory committee's note to 2013 amendment ("If the
motion is transferred, judges are encouraged to permit
telecommunications methods to minimalize the burden a
transfer imposes on nonparties . . . .").
the Court concludes that the exceptional circumstances
outlined above outweigh the interests of Tolleson in
obtaining local resolution of the Motion.