UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
October 30, 2006
MAID OF THE MIST CORPORATION AND MAID OF THE MIST STEAMBOAT COMPANY, LTD., PLAINTIFFS,
ALCATRAZ MEDIA, LLC, ALCATRAZ MEDIA INC. AND WILLIAM M. WINDSOR, DEFENDANTS.
The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
WHEREAS the parties to this matter are engaged in litigation in the U. S. District Court for the Northern District of Georgia, Atlanta Division (06-CV-0714-ODE, hereinafter "the underlying litigation") wherein plaintiffs seek injunctive relief claiming that defendants have been impermissibly selling tickets for plaintiffs' boat rides; and
WHEREAS, on September 28, 2006 defendant Windsor, pro se, obtained Subpoenas, issued by the U. S. District Court for the Western District of New York, to take deposition testimony of the following individuals and served them in the following manner: Ms. Gina Thomas and Ms. Sandra Carlson were personally served in Ontario, Canada; Mr. Vanik Aloian (identified in the subpoena as "Mr. Vanik"), Mr. Christopher Glynn and Mr. Robert Schul were personally served in Niagara Falls, New York; and
WHEREAS on October 4, 2006, defendant Windsor served a Notice of Deposition on opposing counsel indicating the dates and locations in this District for the proposed depositions of the above subpoenaed individuals. Each of the dates scheduled for the depositions was within twenty days of the date of the aforesaid Notice; and
WHEREAS plaintiffs have made a motion in this Court for a Protective Order and to Quash the Subpoenas and Notice of Depositions of the above individuals and for sanctions; and
WHEREAS this Court granted plaintiffs' ex parte motion for an expedited hearing of this motion, defendant Windsor has submitted a response to the motion and the parties have appeared before the Court for oral argument thereon; and
WHEREAS the grounds for plaintiffs' motion are two-fold. First, plaintiffs claim that defendant Windsor failed to comply with Rule 30(a) of the Local Rules of Civil Procedure for this District which requires that any Notice to depose a party or other witness in this District be served at least twenty days prior to the date set for the examination. Second, two of the subpoenaed witnesses, Ms. Gina Thomas and Ms. Sandra Carlson, are Canadian citizens who reside and work in Canada, were not personally served in New York, and therefore are not subject to jurisdiction here; and
WHEREAS the Local Rules of Civil Procedure for the Western District of New York apply to the subject Subpoenas issued in this District and Notices for depositions, no matter how captioned*fn1 , which are to be conducted here. This in no way affects the procedural rules to be followed in the underlying case in Georgia and only relates to compliance regarding subpoenas and depositions to be served and conducted here*fn2 ; and
WHEREAS defendant Windsor argues that plaintiffs lack standing to bring the motion because the subpoenaed individuals are non-party witnesses; and
WHEREAS the parties agree that the individuals subpoenaed are not parties to the underlying litigation and that they are employees of plaintiffs. Ms. Thomas, Ms. Carlson and Mr. Aloian are not officers, managers or directors of the plaintiff corporations. On the other hand, Mr. Glynn and Mr. Schul, as President and Comptroller respectively, are officers, managers or directors of one of the plaintiff corporations; and
WHEREAS the Court finds that plaintiffs lack standing to bring the motion on behalf of Mr. Aloian*fn3 ; and
WHEREAS the Court also finds that issue of standing with respect to the motion brought on behalf of Ms. Thomas and Ms. Carlson is immaterial*fn4 because these individuals are Canadian citizens who reside and work in Canada. The Subpoenas, were served upon them outside of the United States and are therefor unenforceable because this Court has no subpoena power or jurisdiction outside of the United States over these individuals*fn5 . The Subpoenas and Notice with respect to these individuals must therefore be quashed on this ground; and
WHEREAS the Court also finds plaintiffs have standing to make the motion on behalf of its officers Mr. Glynn and Mr. Schul and holds that the Notice of Depositions served by defendant Windsor failed to comply with Local Rule 30(a) and the Subpoenas and Notice of Deposition with respect to Mr. Glynn and Mr. Schul will also be quashed; and
WHEREAS the Court lastly finds that the plaintiffs' need to file this motion, as well as defendant Windsor's purported need to re-serve the Subpoenas and Notices and return to Buffalo for depositions are as much the result of plaintiffs not cooperating with defendants as they are defendants not cooperating with plaintiffs and neither sanctions nor costs will be awarded*fn6 ; it is accordingly
ORDERED that plaintiffs' motion is granted in part insomuch as the Subpoenas of Gina Thomas, Sandra Carlson, Robert Schul and Christopher Glynn and Notice of Deposition so far as it relates to them are hereby quashed, and in all other respects it is denied without costs or sanctions to either party.