Misusing subpoenas in a telemarketing case - a cautionary tale
- Peter Schneider
- Feb 25
- 11 min read
Updated: Jul 22
I just wrote a different post on who bears the expense of responding to subpoenas, and someone pointed me to the story of a pro-se TCPA plaintiff hit with an eleven thousand and change sanction over some subpoenas he issued. This happened to an experienced telephone consumer protection act plaintiff Craig Cunningham in Cunningham v. Jordon, et al. Case No. 22-cv-01419, Doc. No. 80 (N.D. Ga. Feb. 21, 2025).
This post isn't judging him, but to look at what happened to avoid a similar outcome to anyone else. And understanding what happened here will involve browsing through some court filings to understand the subpoena issue. The first domino to fall was the court granting a motion for summary judgment for a number of defendants, and oddly, Cunningham didn't respond to their motion [we will come back to this later].
I'll use the court's own words to describe the nature of the case:
This case arises out of telemarketing calls Plaintiff received on his cellphone. Plaintiff alleges the Defendants called his cellphone multiple times soliciting donations. He further alleges that these calls were placed using spoofed caller IDs, a prerecorded message, and an automated dialing system. Plaintiff claims that he made a donation in response to one of these calls and observed that an entity “MJ Spreading” charged his credit card. From this, Plaintiff alleges that the MJ Ministries Defendants placed a portion of the calls he received. Plaintiff also asserts that both the MJ Ministries Defendants and Serving Hands Defendants use their business entities to launder the money they receive from their automated calls. In response, Plaintiff filed this action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. §227, et seq. (“TCPA”) and the Texas Business & Commerce Code §§ 302.101 and 305.0533 (“TBCC”).
Manasseh Jordan Ministries is a well known TCPA defendant. The root of the motion was their claim that Cunningham didn't have any evidence to support his claim that they placed the calls at issue. Apparently because "Plaintiff failed to conduct any discovery over the eleven-month discovery period."
Furthermore, the Defendants assert that Plaintiff has not sent them a single discovery request throughout the eleventh-month discovery period in this case. Plaintiff has since filed a second lawsuit in the United States District Court for the Eastern District of Texas bringing nearly identical claims. In that suit, Plaintiff concedes that he does not know the identities of the callers. Defendants assert that Plaintiff has filed this second suit based on calls from the same phone numbers as the calls that gave rise to the suit before this Court. Plaintiff has not responded to this assertion nor continued to litigate this case through the discovery period. Because of this, the Court finds that Plaintiff has failed to establish that the Defendants are the persons or entities that placed the calls that gave rise to Plaintiff’s claims.
Telemarketers are notoriously bad at proving a pro-se plaintiff's case without prompting so no surprise here. I would never recommend losing a motion for summary judgment before starting discovery, but it worked for Mr. Cunningham! The court threw him a huge bone I've not seen others get:
Before the Court is Plaintiff Craig Cunningham’s Motion for Extension of Time to Complete Discovery. Plaintiff’s Motion makes several requests. First, Plaintiff requests that the Court order the Clerk to issue Plaintiff ten subpoenas so that he may obtain evidence from third-party phone service providers. Plaintiff explains that pursuant to Federal Rule of Civil Procedure 45’s method for obtaining documents from non-parties, he cannot obtain necessary phone records from the third-party providers without subpoenas. So that Plaintiff has the opportunity to obtain the records that he claims he needs, the Court DIRECTS the Clerk to make available ten subpoenas for Plaintiff to serve on third parties. Plaintiff’s Motion also asks the Court to stay its consideration of Defendants’ Motion for Summary Judgment . . . if after serving his subpoenas Plaintiff develops evidence indicating that Defendants made the phone calls that he alleges, Plaintiff may, within 90 days of the date of this Order, file a motion for reconsideration of the Court’s Order granting Defendants’ Motion for Summary Judgment.
Most mortals would be given 14 days, and told to piss off if they wanted to come to court with evidence they could have had prior to the close of discovery. Frankly, what if the shoe was on the other foot - Cunningham waited till the close of discovery, filed a motion for summary judgement (which I talked about how to defeat here) and suddenly it was the defendants that came to life wanting more time. All the time writing a motion wasted.
The court's order was dated 11/30/2023, and on 2/19/2024, the defendants filed an emergency motion to quash Cunningham's issued subpoenas (and for contempt and for sanctions):
Plaintiff issued subpoenas without any notice to Defendants in plain violation of Rule 45 and this Court’s last order. And he did so to avoid Defendants’ inevitable objections to his requests. Plaintiff’s subpoenas did not seek “evidence from third-party phone service providers” the only topic the Court permitted Plaintiff to explore before possibly moving for reconsideration of its order granting Defendants summary judgment. Instead, Plaintiff’s subpoenas sought private banking records. The only reason Defendants even learned about the subpoenas is that they received a letter from their bank (days after the documents were apparently already produced).
The defendants hammered him with his own words because Cunningham had told the court he was going to subpoena phone records and for not giving notice of the subpoenas as required under FRCP 45(a)(4):
Notice to Other Parties Before Service. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.
To say the court wasn't happy is putting it mildly. Out of the gate the court "further finds that Plaintiff’s noncompliance with Rule 45(a)(4) justifies quashing any remaining subpoenas that have been, or will be, served on companies that are not phone service providers.".
The court wanted to hold a hearing and the court used judge speak to warn Cunningham:
The Court cautions Plaintiff that if he does not attend the scheduled hearing, he risks being sanctioned and held in contempt. Plaintiff is also hereby ORDERED to file a response to Defendants’ Emergency Motion to Quash Plaintiff’s Third-Party Subpoenas and for Contempt and Sanctions [Doc. 58] in all respects, addressing every issue raised in Defendants’ Motion.
Remember how the court said Cunningham didn't respond to the defendants' motion for summary judgement, and after losing the MSJ Cunningham filed a motion to reconsider. Well suddenly that motion to reconsider showed up on the docket. I don't think it is all that relevant to the subpoena issue but for completeness it is offered here.
and denied here:
In his Motion, Plaintiff primarily rehashes details of other litigation with Defendants, complains that he should have been issued the subpoenas much earlier in the discovery process, argues about rulings on past issues, and requests even more time from the Court. [Doc. 68]. Essentially, Plaintiff’s Motion attempts to “instruct the court on how the court ‘could have done it better’ the first time[,]” while also “repackag[ing] familiar arguments” this Court has already decided on. Plaintiff filed this Motion for Reconsideration despite the fact that he has yet to subpoena any of the third-party service providers and, thus, cannot provide any evidence that Defendants were the perpetrators of the phone calls. In addition to failing to provide any of this “newly-discovered evidence,” Plaintiff did not provide evidence of a “development or change in controlling law”, nor evidence that there was a “clear error of law or fact” that would otherwise entitle him to potential relief under Local Rule 7.2(E). Bryan, 246 F. Supp. 2d at 1258. Even construing this filing as liberally as possible, Plaintiff has not provided any basis that would enable this Court to reconsider its prior ruling. Regardless, even if Plaintiff had included such evidence, the Court could still deny his Motion because he filed it outside of the 90-day period as required by the November 2023 Order. Plaintiff’s requests for more time to gather this evidence are unpersuasive. The Court’s initial grant of 90 days tripled the typical period for a motion for reconsideration; so, he was already given the extended timeline he now desires.2 Further, because Plaintiff has had no problem serving subpoenas on other parties3 during the 90-day period, he could have easily served subpoenas on the right parties during this time.
Not hacking off the judge beyond what is required is a skill. One to keep in mind.
Mr. Cunningham needed a fantastic rebuttal to the defendants on the subpoena issue. In a different universe with better timing and where he didn't hack off the judge, this might have worked.
The bank records showed the defendants were using YTEL, another notorious friend of telemarketers. See this court opinion for more on that.
But Cunningham did hack off the judge to the tune of $11,467.50, about 66% less than the defendant asked for.
The Court granted Plaintiff’s Motion and directed the Clerk to make available ten subpoenas for Plaintiff to serve specifically on the third-party phone service providers . . . the Court granted sanctions against Plaintiff for his intentional failure to comply with the Court’s Order and the Federal Rules of Civil Procedure when he served subpoenas on improper parties and without notice.
And another $1325 to another defendant.
Oddly enough, if you prevail in court on your claims, the court won't help you collect. But if you are awarded financial sanctions, the court may help you collect those. Mr. Cunningham didn't pay the sanctions and the defendants moved the court to hold him in contempt.
The court granted the motion and awarded the defendants their fees in bringing the contempt motion:
Under these circumstances, and considering Plaintiff’s history of non-compliance with this Court’s orders, monetary sanctions are not only warranted but necessary to deter future misconduct. For these reasons, the Court hereby grants Defendants’ Motion for Contempt and Sanctions in full. The Court hereby finds Plaintiff in civil contempt of the Court’s November 1, 2024 Order, and awards the MJ Ministries Defendants the fees and costs associated with their Motion and the hearing thereon. Within fourteen (14) days hereof, the MJ Ministries Defendants shall submit paperwork detailing: (1) their fees and costs incurred in connection with their Motion; and (2) any other relief they believe is appropriate under the circumstances.
That's a lot of history and documents to understand a $15k award of sanctions for issuing subpoenas. What are the take-aways?
Mr. Cunningham let the defendants control the narrative. They say he didn't conduct discovery. He says he did but they obstructed him. The court record doesn't show Mr. Cunningham pushing the court to deal with the obstructions and in all of the documents above, the court adopted the defendant's no-discovery narrative. If there is one take away from this case, control the narrative. If the defendants obstruct discovery, bring it to the court's attention.
A close second is don't break the rules. Even if the defendants do and are rewarded for it, don't break the rules. I don't know, but I assume Mr. Cunningham's plan was find the defendants' secret telemarketer (YTEL) and subpoena them next for the calling records. That plan might have worked but for that meddling bank, but breaking the rules tends to get caught up with sooner or later and once the train starts derailing, usually the courts start piling on.
A third is accept that courts are very biased, you might lose on the first go around, and have to take your chances on appeal. From Mr. Cunningham's responses, it seems he deposed the defendants and they lied to him about who their telemarketing provider was. It seems this was Mr. Cunningham's motivation for getting the banking records, to see who they were paying to make the calls.
Mr. Cunningham's writing style is painful. Take his docket 63. It's not organized. I can see the outline of a defense - their banking records show the defendants lied in discovery. But it was easy for the judge to not see it, it has inflammatory language courts don't like, and cites facts not easily found on the record. Judges generally don't like pro-se's, don't like telemarketing lawsuits, and don't like pro-se's with telemarketing lawsuits. There should be no fat in court documents. Sentences should support the specific purpose of the document, or be removed. Writing should be clearly organized - tell them what you are going to say, say it, tell them what you said. Factual allegations should clearly cite to the record. Legal propositions should clearly cite to authority. It is better to say the same thing in half the words so the judge spends twice as long reading it.
See ¶14 of docket 63:
The Plaintiff is no stranger to these defendants and how they operate and their litigation tactics, which in the prior Texas case included multiple counts of perjury in written discovery and boldly lying to the court in sworn declarations and interrogatory responses by Luther Mckinstry, CEO and CFO of MJ Ministries Spreading the Gospel and Wayne Taylor corporate officer. Plaintiff notes that both Luther Mckinstry and Steven Sledge are convicted felons including arrests for crimes relating to violence for both individuals Additionally, Luther Mckinstry was convicted of multiple counts of felony fraud in his past.
This might all be actually true but courts don't like this style of accusations from pro-se's. Judges often don't want pro-se's to win, and they definitely don't want to read page after page of character assassination (even when it's true). Good writing goes a long ways.
Mr. Cunningham didn't pay any of the contempt award [and it also appears he didn't respond to any of this in the court], so on April 7, 2025, the judge awarded another $6,887 in fees, and another $2,500 for non-compliance, and another $300 per day until he complies [up to $15,000]:
It appears the court offered Mr. Cunningham a carrot: Plaintiff may purge himself of contempt by paying the amount this Court previously awarded to MJ Ministries Defendants, $11,467.50 by May 7, 2025. And a stick:
Additionally, IT IS HEREBY ORDERED that Plaintiff appear before this Court for a hearing to show cause as to why he should not be incarcerated in relation to his repeated and blatant contemptuous acts. The hearing in this case is set for Monday, May 19, 2025, at 9:30 a.m. in Courtroom 1705 of the Richard B. Russell Federal Building located at 2211 United States Courthouse, 75 Ted Turner Drive, S.W., Atlanta, Georgia 30303-3309.
May 19 came and went, and Mr. Cunningham was a no-show.
The Plaintiff did not appear. Court heard from counsel for Defendant as to the latest Order. The Court DISMISSES Plaintiff's Case as MOOT. Any Defendants not yet served are DISMISSED without prejudice. The Court will issue no further Order and the Clerk of Court is directed to terminate this action based on this minute order.
It appears Mr. Cunningham won't be jailed or further sanctioned even though he blew off the court. This might have been what the defendants wanted - they might have figured they weren't going to get blood out of a turnip and just be done with it.
Maybe Mr. Cunningham had other options to find their secret robocaller, maybe he didn't. The overall record made it easy for the court to paint him as a passive plaintiff. If he didn't, he had to make it the courts problem if they won't let him issue needed subpoenas earlier in the case. Much of what you do it court is building a record for an appeal if the court abuses its discretion. Constantly squeaking to the court without squeaking to much might seem hard [because it is] but being in this situation is harder.
Fortunately in the federal courts I practice in, pro-se plaintiffs don't seem to have much difficulty in getting the court clerk to issue blank subpoenas. Maybe Mr. Cunningham's difficulty is some longer running beef with the court.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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