In Re: Speer

Filing 15

ORDER: The bankruptcy court order appealed from is hereby affirmed. See attached for details. Signed by Judge Robert N. Chatigny on 7/13/2016.(Panchenko, I)

July 13, 2016
In re Sheri Speer, No. 3:16-cv-311(RNC)
ORDER
Bankruptcy debtor Sheri Speer, proceeding pro se, appeals
from an order of the bankruptcy court denying a motion under
Federal Rule of Civil Procedure 60(b) for relief from earlier
orders denying a motion to quash a subpoena directed to non-party
Liberty Bank and an order denying reconsideration of that
decision. Seaport Capital Partners, LLC (“Seaport”), the
plaintiff in an adversary proceeding against Ms. Speer, issued
the subpoena in order to obtain documents related to bank
accounts held by Ms. Speer and several non-debtor limited
liability companies in which she might have an interest. The
question on appeal is whether the bankruptcy court abused its
discretion in concluding that Ms. Speer failed to establish
extraordinary circumstances justifying relief. See Transaero,
Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.
1998) (Rule 60(b) motions are reviewed for abuse of discretion).
Ms. Speer argues that Seaport failed to provide her with
notice before service of the subpoena and thus violated the
advance notice requirement of Federal Rule of Civil Procedure
45(a)(4). Seaport responds that because the subpoena related to
a deposition, the reasonable notice requirement of Federal Rule
of Civil Procedure 30(b)(1) applied. The parties’ dispute
concerning the applicable standard need not be resolved because
Ms. Speer has failed to show prejudice. See Zinter Handling,
Inc. v. Gen. Elec. Co., No. 04CV500(GLS/DRH), 2006 WL 3359317, at
*2 (N.D.N.Y. Nov. 16, 2006). Ms. Speer contends that she was
prejudiced because the failure to give her advance notice
resulted in production of the documents. Before the documents
were produced, however, Ms. Speer challenged the subpoena by
filing a motion to quash and, when that was denied, a motion for
reconsideration. As a result, her claim of prejudice is
unavailing. See Malinowski v. Wall St. Source, Inc., No. 09 CIV
9592 JGK JLC, 2010 WL 4967474, at *2 (S.D.N.Y. Nov. 23, 2010)
(“[T]he intent of the prior notice requirement has been
effectuated because Plaintiff has filed his motion to quash.”);
Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, No. 03
CIV. 5560(RMB)HBP, 2008 WL 4452134, at *3 (S.D.N.Y. Oct. 2, 2008)
(no prejudice when litigant objected to subpoena and filed motion
to quash); Zinter, 2006 WL 3359317, at *2 (no prejudice when
“[n]otice of the subpoenas was given within one day after their
service, affording . . . adequate time to state . . . objections
and move to quash.”).

Ms. Speer also argues that the subpoena is overly broad.
This argument was raised in her original motion to quash and, it
appears, in her motion for reconsideration. Thus, her Rule 60(b)
motion sought to relitigate a matter already decided. Morever,
given the scope of discovery permitted by Federal Rule of Civil
Procedure 26, the bankruptcy court’s denial of the motion to
quash did not constitute error, much less clear error warranting
relief under Rule 60(b).
Accordingly, the bankruptcy court’s order is hereby
affirmed. The Clerk may close the case.
So ordered.
/s/ RNC
Robert N. Chatigny
United States District Judge

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