Hughes v. Sanders

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
NEAL H. SANDERS, II,
DEBTOR
MISCELLANEOUS PROCEEDING NO.
S-05-00001-5-MP
RANDOLPH HUGHES,
Plaintiff
v.
NEAL H. SANDERS, II,
Defendant.
BANKR. C.D. CA. CASE NO.
ND 04-1149RR
BANKR. C.D. CA. AP NO.
04-1163
ORDER DENYING MOTION FOR FINDING OF CONTEMPT
AND ORDERING APPEARANCE FOR DEPOSITION
Pending before the court is the motion filed by Randolph Hughes,
the plaintiff in an adversary proceeding pending before the Bankruptcy
Court for the Central District of California in the case of Neal H.
Sanders, II, for a finding of contempt against Judith Kiss, a resident
of this district, on grounds that she failed to appear at a deposition.
A hearing was held in Raleigh, North Carolina on August 11, 2005.
Mr. Hughes, who obtained a substantial judgment against Mr.
Sanders in an Ohio state court, wants to depose Ms. Kiss to, among
other things, learn details of Mr. Sanders financial affairs. Counsel
for Mr. Hughes, Teresa Cunningham, who is a member of the Kentucky bar
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and who was admitted pro hac vice in California in connection with Mr.
Sanders’ bankruptcy case, prepared a subpoena requiring that Ms. Kiss
appear for a deposition to be held in Raleigh, North Carolina on March
16, 2005. Having been admitted pro hac vice in the California case,
Ms. Cunningham was authorized under Rule 45(a)(2) and (3) of the
Federal Rules of Civil Procedure to issue a subpoena under the auspices
of that court commanding attendance at a deposition in this district.
Ms. Cunningham arranged to have a process server serve the subpoena on
Ms. Kiss on March 7, 2005, but Ms. Kiss disputes that she was even
served.
Ms. Cunningham filed an affidavit of service and proceeded with
arrangements for the deposition under the assumption that Ms. Kiss had
been properly served. Ms. Kiss did not appear for the deposition, but
neither did Ms. Cunningham, who elected to appear telephonically.
However, Ms. Cunningham did not obtain the written consent of either
Mr. Sanders or Ms. Kiss to take the deposition by telephone as required
by Rule 30(b)(7) of the Federal Rules of Civil Procedure (Bankruptcy
Rule 7030). Consequently, sanctions against Ms. Kiss would not be
approved for failure to appear, and the court need not decide whether
or not she was properly served with the subpoena.
Ms. Cunningham stated that she has attempted to have Ms. Kiss
served with subpoenas for attendance at a deposition at least six or
seven times since June, and that Ms. Kiss has avoided service.
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To avoid this problem in the future, Ms. Kiss is ORDERED to appear
for a deposition in connection with the pending bankruptcy case within
20 days of the date of entry of this order, on the date and at the time
and place agreed to by Ms. Cunningham and Ms. Kiss’ counsel, Kevin
Sink.
Any motion to quash will be scheduled for hearing on an expedited
basis and counsel may appear by telephone.
SO ORDERED.
DATED: August 17, 2005
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