Ordaz et al v. Ziggyz Online Inc et al

Filing 10

ORDER denying 7 Plaintiffs' Amended Motion to Enforce Subpoena Duces Tecum and Request for Expedited Ruling and Request to Order Shortened Response Time and Supporting Brief, quashing plaintiffs' Civil Subpoena Duces Tecum issued to the FBI, and remanding this matter back to state court for further proceedings between the named parties (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 1/17/2017. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
VICTOR ORDAZ and
TRICIA ORDAZ, as surviving parents
of DYLAN ORDAZ, deceased,
Plaintiffs,
v.
ZIGGYZ ONLINE, INC. d/b/a ZIGGYZ,
ROGER ZHU,
XIANG YU “JOHNNY” REN,
WEI YU “WENDY” REN, and
RENREN IRREVOCABLE TRUST,
Defendants.

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Case No. CIV-16-1435-M

ORDER
Before the Court is Plaintiffs’ Amended Motion to Enforce Subpoena Duces Tecum and
Request for Expedited Ruling and Request to Order Shortened Response Time and Supporting
Brief, filed December 19, 2016. On December 23, 2016, the United States filed its response.
Plaintiff filed no reply. Based on the parties’ submissions, the Court makes its determination.
On May 29, 2015, plaintiffs filed this action against defendants in the Oklahoma County
District Court, State of Oklahoma. On October 25, 2016, plaintiffs served a subpoena duces
tecum in state court on the Federal Bureau of Investigation (“FBI”). See Resp. Ex. 4, Civil
Subpoena Duces Tecum. The subpoena seeks information regarding the manufacturer/distributor
of the synthetic marijuana plaintiffs allege was sold to their decedent son by defendants and
contributed to his death after use. On November 17, 2016, plaintiffs filed their Motion to Enforce
Subpoena Duces Tecum in state court. See Resp. Ex. 7, Plaintiff’s [sic] Motion to Enforce
Subpoena Duces Tecum. On December 16, 2016, pursuant to 28 U.S.C. § 1442(a), the United
States removed this action to this Court. See [docket no. 1]. Subsequently, plaintiffs filed this

instant motion seeking an order from this Court enforcing its subpoena duces tecum issued to the
FBI.
Plaintiffs contend that, as there is no current criminal or civil case pending against
defendants Xiang Yu “Johnny” Ren or Wei Yu “Wendy” Ren, the United States should permit
their counsel
the opportunity to view and photograph all documents, contracts,
emails, text, shipping, details, shipping labels, receipts, package
inserts, shipping box inserts, containers, routing documents, bills
of lading, ledgers, and anything else that:
a)

Would identify the company or companies that
manufactured/shipped/distributed herbal incense
products to the subpoenaed store, identical, or
similar to the product depicted on Attachment A [of
the subpoena duces tecum]

b)

Would identify the company or companies that
manufactured/shipped/distributed herbal incense
products to the subpoenaed store, commonly
referred to as “fake”, “spice”, “K2”, and/or
“synthetic marijuana”.

Mot. to Enforce at 5. 1 Plaintiffs further contend that the requested information is not available
from another source. The United States asserts that based on its sovereign immunity, plaintiffs’
subpoena duces tecum should be quashed.
“It long has been established . . . that the United States, as sovereign, is immune from
suit save as it consents to be sued . . . .” United States v. Testan, 424 U.S. 392, 399 (1976). This
includes federal agencies such as the FBI. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).
Further, “the term ‘suit’ broadly comports with the core notion of sovereign immunity that in the
absence of governmental consent, the courts lack jurisdiction to ‘restrain the government from
1

The United States advises that the criminal complaint against Wendy Ren was
dismissed on October 13, 2016; however, the criminal investigation into other persons of interest
in the distribution of synthetic cannabinoids is ongoing.
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acting, or to compel it to act.’” United States v. Murdock Mach. & Eng'g Co. of Utah, 81 F.3d
922, 931 (10th Cir. 1996) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,
704 (1949)). Therefore, a subpoena deuces tecum served on the United States, “regardless of
whether it is a party to the underlying action, is a suit” and triggers the government’s sovereign
immunity. Bonnet v. Harvest (U.S.) Holdings, Inc., 741 F.3d 1155, 1160 (10th Cir. 2014).
Having carefully reviewed the parties’ submissions, the Court finds that it lacks
jurisdiction to enforce plaintiffs’ subpoena duces tecum against the FBI, and that plaintiffs’
subpoena duces tecum should be quashed. Accordingly, the Court DENIES Plaintiffs’ Amended
Motion to Enforce Subpoena Duces Tecum and Request for Expedited Ruling and Request to
Order Shortened Response Time and Supporting Brief [docket no. 7], QUASHES plaintiffs’
Civil Subpoena Duces Tecum issued to the FBI, and REMANDS this matter back to state court
for further proceedings between the named parties.
IT IS ORDERED this 17th day of January, 2017.

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