UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CFA INSTITUTE , Plaintiff,

v. AMERICAN SOCIETY OF PENSION PROFESSIONALS & ACTUARIES , Defendant ,

v. JAMES APISTOLAS , Movant

. Case No. 1: 20

- mc - 00018 (TNM)

CFA INSTITUTE, Plaintiff,

v. AMERICAN SOCIETY OF PENSION PROFESSIONALS & ACTUARIES , Defendant ,

v. ANA LEIRNER , Movant. Case No. 1:20

- mc - 00019 (TNM)

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 subpoe nas to take depositions of third2 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. t o 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.” Apis tolas’ 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 t hey 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. Apist olas’ 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

– 9.3 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 s hould 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 Apist olas’ and Leirner’s replies , s ee Reply (“Apistolas’ Reply ”), No. 20

-

mc - 18, ECF No. 9 ; Reply ( “ Leirner’s Reply ”), No. 20

- mc - 19, ECF No. 8 , t he Court’s initial impression of the parties’ arguments led the Court to believe that the issuing court in the Wester n District of Virginia would be better suited to decide the motions. T he 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 O rder (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 . Apis olas’ 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 t he 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 avoiding4 burdens on local nonparties subject to subpoenas, and it should not be assume d 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). C ourts in this
C ircuit “ 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 avoida nce 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 discov ery period has now closed makes t his 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 w he ther the value to be gained from Apistolas and Leirner justifies a discovery

m odification

. See Pl.s’ Transfer Br. (Apistolas) at 2; Pl.’s Transfer Br. (Leirner) at 2.5 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 W ashington, 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 an d Leirner. Cf

. Flynn , 216 F. Supp. 3d at 4 8 (“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

.

Dated: April 7 , 20 20 TREVOR N. M c FADDEN United States District Judge