L-3 Communications Corporation et al v. Jaxon Engineering & Maintenance, Inc. et al

Filing 742

ORDER. ORDERED that the Motion to Quash Rule 45 Subpoena, and for a Protective Order for 3rd Party Manitou Motion Picture Company, Ltd. for Attorneys' Fees, Expenses, and Lost Earnings 740 is STRICKEN without prejudice to its refiling by and through an attorney admitted to appear in this court, by Magistrate Judge Kathleen M. Tafoya on 11/15/13.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10BcvB02868BMSKBKMT

L-3 COMMUNICATIONS CORPORATION, and
L-3 SERVICES, INC.,
Plaintiffs,
v.
JAXON ENGINEERING & MAINTENANCE, INC.,
JONI ANN WHITE,
RANDALL K. WHITE,
SCOTT WHITE,
SUSAN RETTIG,
CHARLES RETTIG,
JAMES YOUNGMAN,
JERRY LUBELL,
KELLY RICE,
JOHN MCCLURE, and
JOHN DOES 1-25, said names being fictitious as such names are unknown at this time,
Defendants.

ORDER

This matter is before the court on the “Motion to Quash Rule 45 Subpoena, and for a
Protective Order for 3rd Party Manitou Motion Picture Company, Ltd. for Attorneys’ Fees,
Expenses, and Lost Earnings.” (Doc. No. 740, filed Nov. 6, 2013.) The court is not
unsympathetic to Mountain Motion Picture Company’s (“MMPC”) position as Federal Rule of
Civil Procedure 45(c)(1) imposes an affirmative duty on the party or attorney responsible for
issuing and serving a subpoena to “avoid imposing undue burden or expense on a person subject

to the subpoena.” Further, Rule 45(c)(1) requires sanctions—including, but not necessarily
limited to, lost earnings and reasonable attorneys’ fees 1—on a party or attorney who fails to
comply with this duty.
Nevertheless, the court notes that MMPC’s motion was filed by its non-attorney
principal, Edward W. Flanagan. (See Mot. Quash at 2, 11.) It is well-established that a business
entity must be represented by an attorney to appear in federal court, Tal v. Hogan, 453 F.3d 1244,
1254 (10th Cir. 2006) (footnote and citations omitted), and an entity cannot appear through a
non-attorney business officer appearing pro se. Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556
(10th Cir. 2001). As such, the court cannot consider MMPC’s Motion.
Therefore, it is
ORDERED that the “Motion to Quash Rule 45 Subpoena, and for a Protective Order for
3rd Party Manitou Motion Picture Company, Ltd. for Attorneys’ Fees, Expenses, and Lost
Earnings” (Doc. No. 740) is STRICKEN without prejudice to its refiling by and through an
attorney admitted to appear in this court.
Dated this 15th day of November, 2013.

1

The court emphasizes this potential sanction because MMPC maintains that it is unable to
afford counsel. In the event that MMPC is correct that Plaintiffs have failed to comply with the
duty imposed by Rule 45(c)(1), MMPC would be entitled to recoup its reasonable attorneys’ fees
in contesting the subpoena, thereby defraying the cost of hiring an attorney to represent it.