West Bay One, Inc. v. Does 1 - 1,653 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WEST BAY ONE, INC.,
Plaintiff,
v. Civil Action No. 10-481 (RMC/JMF)
ENID EDDINGS; CRYSTAL PABREZIS;
and DOES 1-726,
Defendants.
MEMORANDUM ORDER
Fran Laker (“Laker”) has become aware of the existence of a subpoena served upon an
Internet Service Provider (“ISP”) that might disclose whether he1 downloaded illegally a film.
Plaintiff is the copyright owner of this film and served that subpoena.
As the matter now stands, Laker has not yet been named as a defendant but has moved to
quash the subpoena on the grounds that (1) the subpoena was not served on him; (2) he lives
more than 100 miles from the District of Columbia; (3) the subpoenas “imposed an undue
burden on Movants that raises significant constitutional questions;” and (4) the underlying case
must be dismissed for lack of personal jurisdiction, lack of subject matter jurisdiction and
mootness. Motion to Quash Subpoens [sic] [#100] at 1. According to Laker, “[i]t is improper to
impose on a third party the burden of any subpoena . . . in aid of a case that does not belong in
this Court in the first place.” Id.
1
“Fran” may be a man or woman’s name. I am guessing a man and apologize if I have guessed
wrong.
First, Laker relies on Rule 45 of the Federal Rules of Civil Procedure, but the rights
granted by that Rule may be asserted only by the person subject to the subpoena, unless a
privilege in the matters to be disclosed is asserted by a third party. Novak v. Capital Mgmt. &
Development Corp., 241 F.R.D 389, 394 (D.D.C. 2007). The only possible “privilege” that
Laker could claim is in the disclosure by the ISP of his identity.2 But, that ship has sailed; Laker
has identified himself on the public record, obviating any concern about his “privacy”.
Second, Laker has not been served with the subpoena and it does not impose any burden
on him whatsoever. If Laker is trying to move to dismiss the case for lack of jurisdiction over
his person or the subject matter, he will have to wait until he is in fact named as a defendant. As
Judge Collyer has pointed out,3 the defenses he may have to liability are not at issue merely
because a subpoena was served on an ISP.
It is therefore, hereby,
ORDERED that the Motion to Quash Subpoens [sic] [#100] is DENIED. I note that
Laker, if named as a defendant, reserves all of the defenses he may have to this action.
SO ORDERED.
Digitally signed by John M. Facciola
DN: c=US, st=DC, ou=District of
Columbia,
email=John_M._Facciola@dcd.uscou
rts.gov, o=U.S. District Court, District
of Columbia, cn=John M. Facciola
Date: 2012.01.19 10:04:16 -05'00'
_____________________________
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
2
Judge Collyer has concluded, as have many other judges, that there is no such privilege. West
Bay One, Inc. v. Does 1-1,653, 270 F.R.D. 13, 15 (D.D.C. 2010).
3
See Memorandum Opinion [#36] at 5.
2
3