United States District Court, D. Oregon
LORI WAKEFIELD, individually and on behalf of a class of others similarly situated, Plaintiffs,
VISALUS, INC., Defendant.
F. Kocher and Stephen J. Voorhees, Forum Law Group, Benjamin
H. Richman, Rafey S. Balabanian, Eve-Lynn J. Rapp, J. Aaron
Lawson, and Lily E. Hough, Edelson pc, Gregory S. Dovel,
Simon Franzinim, and Jonas Jacobson, Dovel & Luner LLP,
of Attorneys for Plaintiff and the Certified Class.
M. Sasaki and Nicholas H. Pyle, Miller Nash Graham & Dunn
LLP, John M. O'Neal and Zachary S. Foster, Quarles &
Brady LLP, of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, District Judge.
is set to begin in this case in 19 days. Plaintiff recently
served a trial subpoena on Defendant, a corporation, seeking
the appearance at trial of a “corporate
representative.” Defendant has moved to quash. Along
with her response to that motion, Plaintiff moved for leave
to take a “trial deposition” of Defendant's
corporate representative. For the reasons stated below,
Defendant's motion to quash is granted and
Plaintiff's motion for leave is denied.
Lori Wakefield brings two causes of action against Defendant
ViSalus, Inc. The first is an individual claim under the
general private right of action enforcement provision of the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227(c)(5), alleging that Defendant violated the
TCPA's implementing regulations, specifically 47 C.F.R.
§ 64.1200(c), by initiating more than one telemarketing
call within a 12-month period to Plaintiff's landline
telephone number that had been registered with the National
Do Not Call Registry for at least 30 days. Plaintiff's
second claim is a class claim, alleging that Defendant
violated § 227(b)(1)(A)(iii) and (b)(1)(B) of the TCPA by
improperly using an artificial or prerecorded voice in
telemarketing calls to people's residential landline or
cellular telephones without their prior express consent. This
case is scheduled for a jury trial, commencing on April 10,
anticipation of trial, on February 22, 2019, Plaintiff issued
a trial subpoena under Rule 45 of the Federal Rules of Civil
Procedure to Defendant “ViSalus, Inc. and a corporate
representative of ViSalus, Inc.” ECF 236-1. On February
28, 2019, Plaintiff issued a nearly identical trial subpoena,
with the only apparent difference being that Plaintiff
tendered a witness fee and mileage in the amount of $1, 040
with the second subpoena. ECF 236-1. On March 7, 2019,
Defendant moved to quash. ECF 236. On March 14, 2019,
Plaintiff filed her opposition to Defendant's motion to
quash. ECF 241. On that same day, Plaintiff filed her own
motion for leave to take trial deposition on a corporate
representative of Defendant, in the event that the Court
concludes that Defendant is beyond the Court's subpoena
power and grants Defendant's motion to quash. ECF 243.
A. Defendant's Motion to Quash Trial Subpoena to
45(c) of the Federal Rules of Civil Procedure provides, in
relevant part, as follows:
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena
may command a person to attend a trial, hearing, or
deposition only as follows:
(A) within 100 miles of where the person resides, is
employed, or regularly transacts business in person; or
(B) within the state where the person resides, is employed,
or regularly transacts business in ...