                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 FAITH SATELLITE RADIO, LLC,

    Plaintiff,

      v.                                                   Civil Action No. 10-1373 (CKK)
 LUTHERAN CHURCH MISSOURI
 SYNOD, et al.,

    Defendants.


                                 MEMORANDUM OPINION
                                    (October 4, 2010)

       This action was removed from the Superior Court of the District of Columbia on August

16, 2010 by Defendant Lutheran Church Missouri Synod (“LCMS”). Defendants Reverend John

Loum (“Loum”) and Reverend Yohannes Mengsteab (“Mengsteab”) consented to removal on

August 18, 2010. See [3] Notice of Consent to Removal. On September 7, 2010, Defendants

LCMS and Mengsteab filed a [13] Motion to Dismiss for Lack of Personal Jurisdiction and

Improper Venue, and Alternative Motion to Transfer Venue. On September 13, 2010, Defendant

Loum filed a [16] Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative,

Motion to Transfer Venue. Plaintiff Faith Satellite Radio, LLC (“FSR”) opposes the motion filed

by Defendants LCMS and Mengstead but consents to Defendant Loum’s motion. Accordingly,

the Court shall grant Defendant Loum’s [16] Motion to Dismiss; the dismissal shall be without

prejudice. The Court shall address Defendants LCMS and Mengsteab’s motion to dismiss at a

future date.

       Presently pending before the Court is Defendants LCMS and Mengsteab’s [19] Motion

for Protective Order and Motion to Quash. In their motion, Defendants move the Court to stay

discovery pursuant to Federal Rule of Civil Procedure 26(c) and Local Civil Rule 16.3 and to
quash subpoenas issued by FSR to third parties under Rule 45(c). In addition, Defendants seek

to recover expenses they incurred in drafting their motion pursuant to Rule 26(c) and sanctions

imposed on FSR for failing to provide Defendants with notice of the third-party subpoenas under

Rule 45(b)(1). For the reasons explained below, the Court shall grant Defendants’ motion.

       A.      Timing of Discovery

       “[U]nder the Federal Rules of Civil Procedure, parties to an action ‘may not seek

discovery from any source before the parties have conferred as required by’ the Federal Rules,

unless the parties agree to take discovery.” Wada v. U.S. Secret Serv., 525 F. Supp. 2d 1, 11

(D.D.C. 2007) (quoting Fed. R. Civ. P. 26(d)) (emphasis added). Both the Federal Rules of Civil

Procedure and the Local Rules of this Court require parties to meet at least twenty-one (21) days

before a scheduling conference is held or a scheduling order is due to the Court, and the parties

must confer regarding a number of issues. See Fed. R. Civ. P. 26(f); LCvR 16.3. This Court has

not held an initial scheduling conference because of the pending motions to dismiss, and the

Court has not entered a scheduling order. Moreover, it is clear from the averments of

Defendants’ counsel and the correspondence attached to their motion that the parties have not

held a meeting as required by the rules and have not agreed to conduct discovery prior to the

issuance of a scheduling order. See Defs.’ Mot. at 3 & Ex. A (Emails between counsel for

Defendants and counsel for Plaintiff). Therefore, any efforts to obtain discovery from any source

are premature. See Wada, 525 F. Supp. 2d at 11. Accordingly, the Court shall grant Defendants’

motion for a protective order and stay discovery pending the resolution of Defendants’ motion to

dismiss.

       B.      Subpoenas

       Defendants have produced evidence indicating that FSR has issued third-party subpoenas

to various entities seeking the production of documents in this action. See Defs.’ Mot., Ex. C. In

addition, it appears that counsel for FSR has conceded that in serving such subpoenas, he failed


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to comply with Rule 45(b)(1), which provides in pertinent part that prior to service of a subpoena

commanding the production of documents, notice must be served on each party. See Defs.’ Mot.,

Ex. A at 3 (Email from T. Mensah to E. Todd) (“I consent that Plaintiff did not fully comply with

FRCP 45(B) . . . .”). Accordingly, Defendants move to quash these subpoenas as improper

discovery.

       Rule 26(c)(1) provides in pertinent part that the Court may, for good cause, issue an order

forbidding discovery to protect a party or a person from annoyance, embarrassment, oppression,

or undue burden or expense. See Fed. R. Civ. P. 26(c)(1)(A). Rule 45(c)(3)(iv) provides that a

court “must quash or modify a subpoena that . . . subjects a person to undue burden.” Because

efforts to obtain discovery from any source are premature, the subpoenas issued by FSR place an

undue burden on the subpoenaed entitites and are prejudicial to Defendants. Therefore, the Court

shall grant Defendants’ motion to quash the subpoenas issued by FSR in this matter.

       C.      Request for Sanctions

       Defendants request that the Court order FSR to pay the cost of the attorneys’ fees incurred

by Defendants in filing their motion for a protective order. Defendants rely primarily on Rule

26(c)(3), which incorporates Rule 37(a)(5) and states that if a party’s motion for a protective

order is granted, “the court must, after giving an opportunity to be heard, require the party . . .

whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay

the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”

Defendants also request sanctions for FSR’s failure to provide prior notice of the subpoenas

duces tecum issued to third parties in violation of Rule 45(b)(1). Because the Court has not yet

given FSR an opportunity to be heard on Defendants’ request for sanctions, the Court shall hold

in abeyance Defendants’ motion for sanctions and order FSR to file a response on this issue.

       D.      Conclusion

       For the foregoing reasons, the Court shall GRANT Defendant Reverend John Loum’s


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[16] Motion to Dismiss for Lack of Personal Jurisdiction as consented to and dismiss Defendant

Loum as a party without prejudice. The Court shall GRANT Defendants LCMS and

Mengsteab’s [19] Motion for Protective Order and Motion to Quash with respect to their request

for a protective order and an order quashing the third-party subpoenas issued by FSR and HOLD

IN ABEYANCE Defendants’ request for sanctions. An appropriate Order accompanies this

Memorandum Opinion.




                                                    /s/
                                                   COLLEEN KOLLAR-KOTELLY
                                                   United States District Judge




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