Cfa Institute v. American Society of Pension Professionals & Actuaries ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CFA INSTITUTE,
Plaintiff,
v.
AMERICAN SOCIETY OF PENSION Case No. 1:20-mc-00018 (TNM)
PROFESSIONALS & ACTUARIES,
Defendant,
v.
JAMES APISTOLAS,
Movant.
CFA INSTITUTE,
Plaintiff,
v.
AMERICAN SOCIETY OF PENSION Case No. 1:20-mc-00019 (TNM)
PROFESSIONALS & ACTUARIES,
Defendant,
v.
ANA LEIRNER,
Movant.
MEMORANDUM ORDER
CFA Institute and the American Society of Pension Professionals & Actuaries are
engaged in a civil suit in the Western District of Virginia. See No. 3:19-cv-12 (W.D.Va). Near
the scheduled close of discovery, CFA Institute issued subpoenas to take depositions of third
parties James Apistolas and Ana Leirner. Apistolas and Leirner both moved to quash the
subpoenas in this district, “where compliance [with the subpoenas] is required.” Fed. R. Civ. P.
45(d)(3); see Mem. in Supp. of Mot. to Quash (“Apistolas’ Mot.”), No. 20-mc-18, ECF No. 1-1;
Mem. in Supp. of Mot. to Quash (“Leirner’s Mot.”), No. 20-mc-19, ECF No. 1-1. For the
reasons below, the Court finds that exceptional circumstances warrant a transfer of these motions
to the issuing court in the Western District of Virginia.
I.
Apistolas and Leirner—who are represented by the same counsel—invoke nearly
identical arguments to quash their respective subpoenas. Compare Apistolas’ Mot. with
Leirner’s Mot. They argue first that they were given only six days’ notice before their scheduled
depositions, which they claim was not “allow a reasonable time to comply.” Apistolas’ Mot. at 7
(quoting Fed. R. Civ. P. 45(d)(3)); Leirner’s Mot. at 8 (same); 1 see Apistolas’ Mot. at 5–6;
Leirner’s Mot. at 6–7. 2 More, Apistolas and Leirner argue that the subpoenas cannot be
modified because the discovery period closed on the date they were scheduled to be deposed.
Apistolas’ Mot. at 8; Leirner’s Mot. at 9. Second, Apistolas and Leirner argue that CFA Institute
failed to exercise appropriate diligence when it waited until near the close of discovery to issue
their subpoenas. Apistolas’ Mot. at 8; Leirner’s Mot. at 9–10. Finally, Apistolas and Leirner
argue that compliance with their subpoenas will impose an undue burden. Apistolas’ Mot. at 8–
10; Leirner’s Mot. at 10–12.
Likewise, CFA Institute’s responses to the two motions are functionally the same. See
Pl.’s Opp’n to Mot. to Quash (“Opp’n to Apistolas’ Mot.”), No. 20-mc-18, ECF No. 7; Pl.’s
1
All page citations refer to the Court’s CM/ECF pagination.
2
Leirner also argues as a separate basis to quash that CFA Institute failed to offer her reimbursement for mileage.
Leirner’s Mot. at 8–9.
2
Opp’n to Mot. to Quash (“Opp’n to Leirner’s Mot.”), No. 20-mc-19, ECF No. 5. CFA Institute
argues that the Court should deny the motions as untimely and compel Apistolas and Leirner to
testify. See generally Opp’n to Apistolas’ Mot.; Opp’n to Leirner’s Mot. If nothing else, CFA
Institute asks the Court to fashion an appropriate modification “to reschedule the deposition[s] to
a mutually agreeable time and place rather than quash the subpoena[s] outright.” Opp’n to
Apistolas’ Mot. at 20; Opp’n to Leirner’s Mot. at 19.
After receiving Apistolas’ and Leirner’s replies, see Reply (“Apistolas’ Reply”), No. 20-
mc-18, ECF No. 9; Reply (“Leirner’s Reply”), No. 20-mc-19, ECF No. 8, the Court’s initial
impression of the parties’ arguments led the Court to believe that the issuing court in the Western
District of Virginia would be better suited to decide the motions. The Court directed Apistolas,
Leirner, and CFA Institute to file their positions about a transfer to the issuing court in
accordance with Federal Rule of Civil Procedure 45(f). Minute Order (4/2/2020), No. 20-mc-18;
Minute Order (4/2/2020), No. 20-mc-19. CFA Institute supports a transfer. Pl.’s Transfer Br.
(Apistolas), No. 20-mc-18, ECF No. 10; Pl.’s Transfer Br. (Leirner), No. 20-mc-19, ECF No. 9.
Apistolas and Leirner oppose. Apisolas’ Transfer Br., No. 20-mc-18, ECF No. 11; Leirner’s
Transfer Br., No. 20-mc-18, ECF No. 10. But after considering Apistolas’ and Leirner’s
objections, the Court finds that the facts of this case present an exceptional circumstance that
justifies a transfer to the issuing court in the the Western District of Virginia.
II.
Federal Rule of Civil Procedure 45(f) states that “When the court where compliance is
required did not issue the subpoena, it may transfer a motion under this rule to the issuing court
if the person subject to the subpoena consents or if the court finds exceptional circumstances.”
The Advisory Committee Note counsels that the Court’s “prime concern should be avoiding
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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.” Fed. R. Civ. P. 45(f)
advisory committee’s note.
But there are also countervailing reasons for ordering a transfer, “in order to avoid
disrupting the issuing court’s management of the underlying litigation . . . if such interests
outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of
the motion.” Id.; see Flynn v. FCA US, 216 F. Supp. 3d 44, 46 (D.D.C. 2016). Courts in this
Circuit “have considered the complexity, procedural posture, duration of pendency, and the
nature of the issues pending before, or already resolved by, the issuing court in the underlying
litigation,” as well as “the goals of judicial economy and the avoidance of inconsistent results.”
Flynn, 216 F. Supp. 3d at 46 (quotations and citations omitted).
III.
Exceptional circumstances exist here. First, Apistolas and Leirner have couched a large
part of their motion on CFA Institute’s untimely subpoenas, which they claim cannot be
modified to fit within the issuing court’s now-expired discovery schedule. Apistolas’ Mot. at 8;
Leirner’s Mot. at 9–10. The fact that the discovery period has now closed makes this is a
question better left to the issuing court, “in order to avoid disrupting [its] management of the
underlying litigation[.]” Fed. R. Civ. P. 45(f) advisory committee’s note. And as CFA Institute
has suggested, the issuing court, “versed as it is in the nuances of the underlying trademark
infringement action and the discovery already produced” in the case, is better positioned to
assess whether the value to be gained from Apistolas and Leirner justifies a discovery
modification. See Pl.s’ Transfer Br. (Apistolas) at 2; Pl.’s Transfer Br. (Leirner) at 2.
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Second, resolution of this dispute in the Western District of Virginia will impose an
insignificant burden on Apistolas and Leirner, who are represented by the same Washington,
D.C. law firm that has been representing the Defendants in the underlying case. See Docket,
CFA Institute, No. 3:19-cv-12 (W.D.Va). And even if they were not, litigating this issue in
nearby Charlottesville would not unduly burden Apistolas and Leirner. Cf. Flynn, 216 F. Supp.
3d at 48 (“no undue burden would be imposed upon [movant] if its motion were transferred to
the Southern District of Illinois”). Weighed against this small burden, the exceptional
circumstances of this case support a transfer. See Fed. R. Civ. P. 45(f) advisory committee’s
note.
IV.
For the foregoing reasons, it is hereby
ORDERED that the pending Motions to Quash shall be TRANSFERRED to the issuing
court in the Western District of Virginia.
SO ORDERED.
2020.04.07
16:12:52 -04'00'
Dated: April 7, 2020 TREVOR N. McFADDEN
United States District Judge
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