AUGUSTIN v. NEW CENTURY TRS HOLDING INC

Filing 8

ORDER OF DISMISSAL, ADOPTING 6 REPORT AND RECOMMENDATION. Signed by CHIEF JUDGE ROBERT L HINKLE on 12/09/2008. (krb)

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

PIERRE RICHARD AUGUSTIN, Plaintiff, v. NEW CENTURY TRS HOLDING INC., NEW CENTURY LIQUIDATING TRUST, Defendants. ______________________________________/ ORDER OF DISMISSAL This matter is before the court on the magistrate judge's report and recommendation (document 6) and the objections (document 7). I have reviewed de novo the issues raised by the objections. This matter began in this district with the filing of an "emergency motion to request the issuance of notices to produce documents & subpoena duces tecum re deposition to non-parties witnesses in case 07-10416-KJC in Delaware Bankruptcy Court." (Document 1 (capitalization altered).) The movant, Pierre Richard Augustin, specifically directed the motion to a district judge, thus seeking a ruling from the court, not simply the issuance of a subpoena by the clerk of the court. The magistrate judge construed the filing as an attempt to state a claim in this CASE NO. 4:08mc30-RH/WCS

Page 2 of 3

district and recommended that it be dismissed as frivolous. As an attempted claim, the filing is indeed frivolous. The report and recommendation will be accepted, and this case will be dismissed. Mr. Augustin apparently is a party to a proceeding pending in the United States Bankruptcy Court for the District of Delaware. If that is so, this ruling will not prevent Mr. Augustin from conducting a deposition in this district, or from obtaining documents in this district, as part of the ongoing discovery in the Delaware proceeding. Mr. Augustin may be able to do so by complying with any scheduling orders or other procedures applicable in the Delaware proceeding and by following the applicable rules for the scheduling of a deposition and the issuance of a subpoena in a district other than the district where a case is pending. See Fed. R. Bankr. P. 9016 (making Fed. R. Civ. P. 45(a)(3) applicable to bankruptcy proceedings). But Mr. Augustin may not achieve this result by filing an original proceeding before a judge in the Northern District of Florida--and this is especially so when he has not given notice to the other parties to the Delaware case. For these reasons, IT IS ORDERED: The report and recommendation is ACCEPTED and adopted as the opinion of the court. This proceeding is dismissed. The clerk must enter judgment and
Case No: 4:08mc30-RH/WCS

Page 3 of 3

must close the file. SO ORDERED on December 9, 2008. s/Robert L. Hinkle Chief United States District Judge

Case No: 4:08mc30-RH/WCS