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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JASON LEE VAN DYKE,

Plaintiff,

V.

THOMAS CHRISTOPHER RETZLAFF

ET AL,

Defendants.

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No. 1:20-MC-657 (LY-ML)

ORDER

Before the court are Emergency Motion to Quash Subpoena (Dkt. #1), Plaintiff’s Response 

in Support of Motion to Quash (Dkt. #2), United States’ Amended Motion to Quash Subpoena of 

FBI Witness James McGibney and Motion to Transfer (Dkt. #5), Defendant’s Notice of Filing 

Subpoena Request (Dkt. #10), Defendant’s Emergency Notice of Deprivation of Due Process by 

Failure to Serve (Dkt. #11), Motion to Strike (Dkt. #13), Motion to Quash Subpoena (Dkt. #14), 

Motion for Sanctions (Dkt. #19) and Motion to Strike Nonparty Movant James McGibney’s 

Motion to Quash (Doc.1) (Dkt. #21). Having considered the parties’ written submissions, the 

applicable law, the case file as a whole, and after determining that a hearing on the matter is not 

necessary, the court makes the following findings.

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1 On June 24, 2020, United States District Judge Yeakel specifically referred the motion (Dkt. #5) to the 

undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) or 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(c) 

or Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

Dkt. #6. On June 30, 2020, this referral was later expanded to a case referral pursuant to 28 U.S.C. § 636(b)(1)(A), 

Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules (Dkt. #20).

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I. BACKGROUND

The background of this case is set forth in the United States’ motion and the corresponding 

responses. A detailed reiteration of that background is unnecessary to resolve the issues before the 

court.

In summary, the United States and the subject of a third-party subpoena, James McGibney

(McGibney), seek to either quash McGibney’s subpoena duces tecum or transfer the motion to 

quash to the Eastern District of Texas for resolution. The third-party subpoena was issued at the 

request of Thomas C. Retzlaff (Defendant Retzlaff), a defendant in a civil defamation case pending 

before United States District Judge Amos L. Mazzant in the Eastern District of Texas, Sherman 

Division. Van Dyke v. Retzlaff et al., Cause No. 4-18-CV-247. The subject of the subpoena, 

McGibney, resides in the Austin Division of the Western District of Texas.

II. ANALYSIS

The court’s analysis in deciding disputes regarding out-of-district subpoenas is governed 

by Rule 45. Paws Up Ranch, LLC v. Green, 2013 WL 6184940, *1 (D. Nev. Nov. 22, 2013). 

Generally speaking, Rule 45 requires that disputes related to non-party subpoenas be resolved 

locally, to avoid imposing undue travel or expense burdens on non-parties who are challenging a 

subpoena. See, e.g., FED. R. CIV. P. 45(d)(2)(B)(i) (directing that motions to compel be filed in 

“the district in which compliance is required”). Effective December 1, 2013, however, a 

significant change was made to Rule 45 through the addition of a new subsection, which reads:

(f) Transferring a Subpoena-Related Motion. 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.

FED. R. CIV. P. 45(f). The Advisory Committee’s comments to the amendment indicate that “[t]o 

protect local non-parties, local resolution of disputes about subpoenas is assured by the limitations 

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of [Rule 45] . . . that motions be made in the court in which compliance is required under Rule 

45.” FED. R. CIV. P. 45, Advisory Committee Notes to 2013 Amendments, Subdivision (f). The 

Notes state further, however, that “transfer to the court where the action is pending is sometimes 

warranted,” and “the prime concern should be avoiding burdens on local nonparties.” Id. The 

Committee counsels that transfer is appropriate when the interests in having the issuing court 

decide the discovery dispute “outweigh the interests of the party served with the subpoena in 

obtaining local resolution of the motion.” Id. The Committee note to Rule 45(f) explains that in 

“some circumstances . . . 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.” Id.

Rule 45(f) authorizes transfer if the individual subject to the subpoena consents to the 

transfer. The court notes that McGibney has filed a notice indicating his consent to the transfer of 

this matter to the Eastern District of Texas, Sherman Division for resolution. Dkt. #17.

Rule 45(f) also authorizes transfer given exceptional circumstances. In this case, 

exceptional circumstances exist to warrant transfer. This is case of exceptional circumstances for 

all of the reasons set forth in the parties’ motions to quash and the corresponding responses. In 

summary, these circumstances include but are not limited to the following:

1. The existence of a complex defamation lawsuit that has been pending in the 

United States District Court for the Eastern District of Texas- Sherman Division 

since April 10, 2018.

2. Defendant Retzlaff, Plaintiff Van Dyke and McGibney have a lengthy 

tortured history.

3. The United States is conducting an independent federal criminal 

investigation against Defendant Retzlaff. 

4. The subject of the third-party subpoena, McGibney, is a cooperating FBI 

witness in the independent federal criminal investigation.

5. The presiding judge in the pending civil litigation in the Eastern District of 

Texas has recently ruled on a similar subpoena request by Defendant Retzlaff. In 

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that instance, the District Judge quashed a subpoena based on the existence of a law 

enforcement privilege.

6. The hysterical nature of the pleadings that have been filed by Plaintiff Van 

Dyke and Defendant Retzlaff in this case.

Accordingly, the court will order the motions to quash McGibney’s subpoena be transferred to the 

United States District Court for the Eastern District of Texas, Sherman Division.

Defendant Retzlaff has also sought and obtained the issuance of a subpoena directed to 

GoDaddy.com (Dkt. #10 and #12) in conjunction with his efforts to subpoena McGibney. Plaintiff 

Van Dyke asks this court to quash that subpoena because (a) discovery has closed in the underlying 

civil litigation pending in the Eastern District of Texas; (b) Defendant Retzlaff is proceeding pro 

se in this matter in the Austin Division although represented by counsel in the Eastern District of 

Texas civil litigation, and (c) Defendant Retzlaff’s earlier effort to obtain the same subpoena to 

GoDaddy.com was quashed by a state district judge in a related matter (Cause No. 20-2579-431 

out of the 431st Judicial District Court of Denton County, Texas). Ruling on Plaintiff Van Dyke’s 

motion to quash the GoDaddy.com subpoena is not necessary.

Since this court has ordered the transfer of the parties’ motions to quash, the court finds 

that Defendant Retzlaff’s GoDaddy.com subpoena is unnecessary to the disposition of any matters 

pending in the Western District of Texas, Austin Division. The court accordingly sua sponte

quashes the subpoena to GoDaddy.com issued by the Western District of Texas. Like the subpoena 

directed to McGibney, the propriety of Defendant Retzlaff’s relentless efforts to subpoena 

GoDaddy.com are best left to the sound discretion of the United States District Court for the 

Eastern District of Texas, Sherman Division. 

III. PLAINTIFF VAN DYKE

Plaintiff Van Dyke is either representing himself pro se in this cause or he is representing 

himself in his capacity as an attorney. Either way, he appears to be taking advantage of his ability 

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to access the CM/ECF system. This appears to be in direct violation of sanctions and suspension 

orders that have been issued in other forums.

2 As a consequence, this court denies Plaintiff Van 

Dyke’s Motion to Strike (Dkt. #13) and Motion for Sanctions (Dkt. #19). Similarly, the court finds 

that Motion to Quash Subpoena (Dkt. #14) is rendered moot by the findings outlined above.

Similarly, Defendant Retzlaff’s Motion to Strike Nonparty Movant James McGibney’s Motion to 

Quash (Doc.1) (Dkt. #21) is denied. This court declines to wade into the vitriol lodged by Plaintiff 

Van Dyke and Defendant Retzlaff against each other.

IV. CONCLUSION

Accordingly, for the reasons stated above, the court GRANTS United States’ Amended 

Motion to Quash Subpoena of FBI Witness James McGibney and Motion to Transfer (Dkt. #5).

The Clerk’s office is ORDERED to transfer this entire matter to the Eastern District of Texas, 

Sherman Division.

The court further ORDERS that the subpoena issued to GoDaddy.com at the request of 

Defendant Retzlaff be QUASHED without prejudice to renew that request in an appropriate forum

(Dkt. #10 and 12). Plaintiff Van Dyke’s motions entitled Motion to Strike (Dkt. #13), Motion for 

Sanctions (Dkt. #19), and Motion to Strike Nonparty Movant James McGibney’s Motion to Quash 

(Doc.1) (Dkt. #21) are DENIED. 

Given the above orders, Plaintiff Van Dyke’s motion entitled Motion to Quash Subpoena

(Dkt. #14) is MOOT.

2 For example, see Order issued by United States District Judge Jeremy D. Kernodle, Cause no. 6:20-MC-009:

Finally, the Court notes that Mr. Van Dyke is currently representing himself as a pro se plaintiff in 

two matters pending in this District: (1) Case No. 4:18-cv-247, Van Dyke v. Retzlaff and (2) Case No. 4:19-

cv-786, Van Dyke v. Shackleford. Docket No. 2 at 2. Mr. Van Dyke may retain his existing ECF login 

solely for purposes of docketing filings in these two cases as a pro se litigant. Any other use of his existing 

ECF login may result in additional sanctions. Dkt. #6 at 6.

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The court also ORDERS that a copy of this order be delivered to Thomas C. Retzlaff by 

certified mail at his last known address and GoDaddy.com at the address listed in the 

aforementioned subpoena.

SIGNED July 1, 2020.

_______________________________

MARK LANE

UNITED STATES MAGISTRATE JUDGE

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