United States District Court, D. Idaho
J2 CLOUD SERVICES, INC., and ADVANCED MESSAGING TECHNOLOGIES, INC., Plaintiffs,
FAX 87, FARJAD FANI, MATT JOHNSON FINANCE, INC., ELNAZ FANI, ONE VOIX, MIRALUNA CABERTE YARDAN, STEVEN THONG WAY SEN, ROBERT BEAULIEU, CHARLES MONTGOMERY, ONLINEFAXES, SOLIDFAX, FAXVISION, EFAX4LESS, MYPHONEFAX, RESELLFAX, AND DOES 1-10, Defendants.
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale United States Magistrate Judge.
March 17, 2017, Defendant MyPhoneFax (MPF) filed a motion for
protective order pursuant to Fed. Rule Civ. P. 26 regarding
the scheduling by Plaintiffs j2 Cloud Services, Inc., and
Advanced Messaging Technologies, Inc., of a Rule 45
deposition of non-party witness Derek Layton. Plaintiffs
served a notice of deposition on March 20, 2017, and the
deposition is set for March 24, 2017, in Boise, Idaho.
matter was filed as a miscellaneous action here in the
District of Idaho, and is related to ongoing litigation in
the United States District Court for the Central District of
California, 2:13-cv-05353-DDP-AJW, pending before Judge
Pregerson. MPF's protective order seeks to vacate
the deposition, and requests that it be postponed until Judge
Pregerson rules on a pending motion to vacate default
judgment, which was entered against MPF in the California
action. That motion is scheduled for oral argument on Monday,
March 27, 2017.
March 22, 2017, Layton filed a motion to quash the third
party subpoena and requested a stay. Like MPF, Layton
requested the deposition be stayed until a ruling is issued
on MPF's motion to vacate default judgment.
the deposition is set for March 24, 2017, the Court conducted
a telephonic hearing with the parties on March 22, 2017, at
4:00 p.m. After carefully considering the parties'
respective arguments, the relevant authorities, and reviewing
the docket and related filings in the underlying California
litigation, the Court will deny both motions. The deposition
may proceed as scheduled, for the reasons explained below.
j2 provides Internet fax services to customers in the United
States and around the world. On March 29, 2011, j2 sued
defendants Farjad Fani, Fax87, and Matt Johnson Finance, Inc.
(“MJF”), for infringing two patents related to
Plaintiff's internet fax services. (Dkt. No. 1). Mr. Fani
was the President, Vice President, Secretary and sole officer
and director of MJF, which was doing business as Fax87 and
selling internet fax services. (Dkt. No. 156-2, F. Fani
Response to RFA Nos. 32-33, 35).
parties later settled the 2011 lawsuit. (Dkt. Nos. 43-15,
43-16). Defendants promised to make quarterly payments and
provide royalty reports; accordingly, j2 dismissed the 2011
litigation and granted the defendants a license. (Dkt. No.
43-16, License Agreement).
present lawsuit arose when Defendants stopped making payments
and providing royalty reports after the fourth quarter of
2012, and committed several other alleged breaches of the
license agreement. In 2013, Mr. Fani informed j2 that
he/Defendant MJF “sold Fax87.com on December 31, 2012,
and have nothing to do with Fax87.com since then.”
(Dkt. No. 168-2). He did not identify the purported buyer.
filed this second lawsuit on July 24, 2013, in the United
States District Court for the Central District of California,
(the California action), initially naming as defendants
Fax87.com, Mr. Fani, MJF and Does 1 & 2. (Dkt. No. 1).
With the court's permission, j2 filed the First Amended
and Supplemental Complaint (“FAC”) on April 15,
2016, adding various claims and related parties, including
Defendant MyPhoneFax (MPF), that were identified through
j2's extensive investigation efforts. (Dkt. No. 43). j2
served all defendants with the FAC. (Dkt. Nos. 46, 48-50,
80). MPF was served at what Plaintiffs believed to be its
principal place of business in the Philippines. (Dkt. No.
court granted Plaintiffs j2 Cloud Services, Inc.'s and
Advanced Messaging Technologies, Inc.'s motion for
default judgment against MPF on December 15, 2016, and issued
a judgment that same day. (Dkt. 196, 197.) On December 19,
2016, MPF (noted by MPF to have been sued incorrectly as
MYPHONEFAX.COM) entered a special appearance for the limited
purpose of challenging jurisdiction and the entry of default
judgment against MPF. (Dkt. 198.) MPF claimed to be the
entity that purchased Fax87's assets.
December 21, 2016, MPF filed an ex parte application to stay
the case pending enforcement of a default judgment. (Dkt.
206.) On December 28, 2016, MPF filed a motion to vacate the
default judgment. (Dkt. 212.) The motion to vacate is
predicated upon lack of service of legal process on MPF. In
support of both motions, MPF included a declaration from Mr.
Joffe. (Dkt. Nos. 206-2, 212-1). Upon consideration of the
motions, on December 29, 2016, the court granted MPF's
motion for stay of execution on the default judgment. (Dkt.
215.) MPF's motion to vacate the default judgment is
scheduled to be heard before District Judge Pregerson on
Monday, March 27, 2017.
filings with the court, Mr. Joffe claims to be “the
individual with signing authority for [MyPhoneFax] in [his]
capacity as president of International Company Management
Services Ltd., the manager of [MyPhoneFax].” (Dkt. No
206-2 ¶ 2). Mr. Joffe testified also that
“MPF's principal place of business is located in
Colombia.” (Dkt. No. 212-1 ¶ 2). He contends MPF
does not have any facilities in the Philippines.
(Id. ¶ 8). Among other things, his declarations
and court filings provide information as to MPF's
customer base, the alleged irreparable harm that the company
would suffer from an injunction, as well as an explanation
about how to port fax numbers. (See generally Dkt.