Universitas Education, LLC v. Nova Group, Inc.

Filing 197

OPINION AND ORDER re: #102812 #119 MOTION to Quash Subpoena as to Malkin Properties, filed by Nova Group, Inc., Nova Group, Inc, #61 EMERGENCY MOTION for Protective Order Regarding Deposition Subpoena, filed by Richard S Order, #117 MOTION to Quash Subpoenas as to Avon Capital, LLC, Avon Insurance Trust, and Avon Insurance Welfare Benefit Plan and Grist Mill Capital, LLC, filed by Nova Group, Inc., Nova Group, Inc, #121 MOTION to Quash Subpoena as to Lincoln Financial Group and Lincoln National Life Insurance Company, filed by Nova Group, Inc., Nova Group, Inc, #74 MOTION to Quash Subpoena of Donald Trudeau, filed by Donald Trudeau, #127 MOTION to Quash Subpoena of Molly Carpenter, filed by Molly Carpenter, #107 MOTION to Quash Information Subpoena of Wayne H. Bursey, filed by Wayne Bursey, #72 MOTION to Quash Subpoena of Wayne Bursey, filed by Wayne Bursey, #125 MOTION to Quash Information Subpooena of Daniel Carpenter, filed by Daniel E Carpenter, #85 MOTION to Quash Rule 45 Subpoena and Post-Judgment Restraining Notice and Information Subpoena of Halloran & Sage, LLP, filed by Halloran & Sage, LLP, #129 MOTION to Quash Subpoena of Amanda Rossi, filed by Amanda Rossi, #123 MOTION to Quash Subpoena as to The Penn Mutual Life Insurance Company, filed by Nova Group, Inc., Nova Group, Inc, #70 MOTION to Quash Subpoena of Daniel Carpenter, filed by Daniel E Carpenter. Before this Court are various motions to quash subpoenas Universitas issued to individuals and entities associated with Nova Group. For the reasons stated herein, the motions to quash are denied. The pending motions to quash (Docket Nos. 61, 70, 72, 74, 85, 107, 117, 119, 121, 123, 125, 127 and 129) are denied. The subpoenaed parties shall comply with the subpoenas previously issued to them as directed in this Opinion and Order. (Signed by Magistrate Judge Henry B. Pitman on 1/4/2013) Copies Sent By Chambers. (ja) Modified on 1/18/2013 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
UNIVERSITAS EDUCATION, LLC,
Petitioner,

:
11 Civ. 1590 (LTS)(HBP)

:

-against-

:

OPINION
AND ORDER

:
NOVA GROUP, INC.,
:
Respondent.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

Universitas Education, LLC ("Universitas") commenced
this action against Nova Group, Inc. ("Nova Group") seeking to
confirm a multimillion dollar arbitration award in its favor
against Nova Group.

The award has since been confirmed and

Universitas has undertaken discovery in aid of execution pursuant
to Rule 69 of the Federal Rules of Civil Procedure.

Before this

Court are various motions to quash subpoenas Universitas issued
to individuals and entities associated with Nova Group.

For the

reasons stated below, the motions to quash are denied.

I.

Background

The facts underlying the arbitration award are set
forth in the Memorandum Order of the Honorable Laura Taylor

Swain, United States District Judge, dated June 5, 2012.
Universitas Educ., LLC v. Nova Group, Inc., 11 Civ. 1590
(LTS)(HBP), 2012 WL 2045942 (S.D.N.Y. June 5, 2012).

After Judge

Swain confirmed the arbitration award, judgment against Nova
Group was entered in the amount of $30,181,880 on June 7, 2012.
Nova Group has failed to pay the judgment, has not posted a
supersedeas bond and has resisted all efforts to enforce the
judgment.

The funds in issue are the proceeds of a life

insurance policy and there is no question that the funds were in
Nova Group's possession.

The funds were held for Universitas'

benefit in the Charter Oak Trust Welfare Benefit Plan ("Charter
Oak Trust").

Nova Group is the fiduciary, sponsor and trustee of

the Charter Oak Trust.
This case has been marked by Nova Group's diversionary
and dilatory motion and discovery practices, all of which are
aimed at frustrating any efforts by Universitas to enforce the
judgment.

Nova Group, after removing this action to federal

court, questioned whether the Court had diversity jurisdiction
and moved to dismiss for lack of subject matter jurisdiction
(Docket Nos. 52, 63, 114, and 152).1

1

While the motion to dismiss

Nova Group's initial motion to dismiss was terminated and
then reinstated. After the motion was reinstated, Nova Group
filed an amended motion to dismiss.
2

was pending, Nova Group sought to stay all discovery, but that
motion was denied (Docket No. 54).

On October 5, 2012 Judge

Swain denied Nova Group's amended motion to dismiss, finding
"Nova's motion wholly without merit" (Docket No. 161).
Since the confirmation of the arbitration award,
Universitas has subpoenaed various non-party individuals and
entities associated with Nova Group and the Charter Oak Trust.
In response to Universitas' subpoenas, Nova Group and the nonparties have filed a stream of motions to quash.

This Opinion

and Order resolves the currently pending motions to quash (Docket
Nos. 61, 70, 72, 74, 85 107, 117, 119, 121, 123, 125, 127, and
129).

II.

Legal Standard

"[B]road post-judgment discovery in aid of execution is
the norm in federal and New York state courts."

EM Ltd. v.

Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012).
Pursuant to Rule 69 of the Federal Rules of Civil Procedure,
"[i]n aid of the judgment or execution, the judgment creditor . .
. may obtain discovery from any person -- including the judgment
debtor -- as provided in these rules or by the procedure of the
state where the court is located."

Fed.R.Cicv.P. 69(a)(2);

Amaprop Ltd. v. Indiabulls Fin. Servs. Ltd., 10 Civ. 1853
3

(PGG)(JCF), 11 Civ. 2001 (PGG)(JCF), 2012 WL 4801452 at *11
(S.D.N.Y. Oct. 5, 2012) (Francis, M.J.) ("Rule 69(a)(2) allows a
judgment creditor to utilize discovery devices available under
both the Federal Rules of Civil Procedure and the laws of the
forum state.").

"In its efforts to enforce a judgment, 'the

judgment creditor must be given the freedom to make a broad
inquiry to discover hidden or concealed assets of the judgment
debtor.'"

GMA Accessories, Inc. v. Elec. Wonderland, Inc., 07

Civ. 3219 (PKC)(DF), 2012 WL 1933558 at *4 (S.D.N.Y. May 22,
2012) (Freeman, M.J.) (internal citation omitted).

"A district

court has broad latitude to determine the scope of discovery and
to manage the discovery process."

EM Ltd. v. Republic of

Argentina, supra, 695 F.3d at 207.
Rule 45 of the Federal Rules of Civil Procedure applies
in post-judgment discovery and authorizes a party's attorney to
issue both document and deposition subpoenas.

GMA Accessories,

Inc. v. Elec. Wonderland, Inc., supra, 2012 WL 1933558 at *4.
Rule 45 provides that "[a] party or attorney responsible for
issuing and serving a subpoena must take reasonable steps to
avoid imposing undue burden or expense on a person subject to the
subpoena."

Fed.R.Civ.P. 45(c)(1).

Rule 45 requires a court to

quash or modify a subpoena in certain circumstances, Fed.R.Civ.P.
45(c)(3)(A), and permits it to do so in other circumstances,
4

Fed.R.Civ.P. 45(c)(3)(B).

The movant bears the burden of

persuasion on a motion to quash.

John Wiley & Sons, Inc. v. Doe

Nos. 1-30, 284 F.R.D. 185, 189 (S.D.N.Y. 2012) (Cott, M.J.).
Motions to quash under Rule 45 are "'entrusted to the sound
discretion of the district court.'"

In re Fitch, Inc., 330 F.3d

104, 108 (2d Cir. 2003), quoting United States v. Sanders, 211
F.3d 711, 720 (2d Cir. 2000).

III.

Analysis

A.

Mr. Order's Motion
to Quash is Denied

Pursuant to Federal Rules of Civil Procedure 26(c) and
45(c), Richard Order, Esq. has moved for a protective order with
respect to the deposition subpoena served on him by Universitas
(Docket No. 61).2

Mr. Order is a principal at the law firm of

Updike, Kelly & Spellacy, P.C. and represented Nova Group during
its arbitration with Universitas (Docket No. 62 ¶ 3).

Mr.

Order's motion is without merit and is therefore denied in its
entirety.

2

Although Mr. Order has styled his motion as one for a
protective order under Rule 26, his argument is based on
provisions of Rule 45. Accordingly, I analyze his motion under
Rule 45 and consider it to be a motion to quash.
5

Mr. Order first argues that the subpoena is unduly
burdensome because, according to MapQuest's driving directions,
it would require him to travel 96 miles from his office in
Hartford, Connecticut or 103 miles from his home in Simsbury,
Connecticut to be deposed in White Plains, New York.

Rule 45 of

the Federal Rules of Civil Procedure provides that a court is
required to quash or modify a subpoena if it requires a non-party
to travel more than 100 miles from where that non-party resides,
is employed or regularly transacts business or if it subjects a
person to an undue burden.

Fed.R.Civ.P. 45(c)(3)(A)(ii), (iv).

Neither of these conditions apply to the subpoena served on Mr.
Order.

First, the 100 mile radius in Rule 45 is measured in a

straight line, i.e., "as the crow flies," and not by the usual
driving route.

QBE Ins. Corp. v. Interstate Fire & Safety

Equipment Co., No. 07 Civ. 1883 (SRU), 2011 WL 692982 at *6 (D.
Conn. Feb. 18, 2011); Schwartz v. Marriot Hotel Servs., 186 F.
Supp. 2d 245, 251 (E.D.N.Y. 2002); James v. Runyon, No. 91 Civ.
246, 1993 WL 173468 at *2 (N.D.N.Y. 1993); United States v. Int'l
Business Machs. Corp., 90 F.R.D. 377, 383 n.9 (S.D.N.Y. 1981)
(Edelstein, D.J.); SCM Corp. v. Xerox Corp., 76 F.R.D. 214, 21516 (D. Conn. 1977).

I take judicial notice of the fact that,

measured in a straight line, both Simsbury, Connecticut and
Hartford, Connecticut are approximately 75 miles from White
6

Plains, New York.

Accordingly, the subpoena, on its face, does

not require me to quash it.

Second, the subpoena does not

subject Mr. Order to an undue burden.

Though he claims that the

time required to travel and sit for the deposition will be an
"inconvenience" and will "take away from obligations [he has] for
other clients" (Docket No. 62 ¶ 7), these burdens are neither
unique nor undue.

Any subpoenaed witness is subject to these

same inconveniences.

Mr. Order has not set forth any particular

facts which suggest why this deposition imposes on him in a more
significant way than it would on any other witness.
Mr. Order next claims that he has no information that
could reasonably lead to the discovery of Nova Group's assets and
that any questions posed to him will be objectionable on the
grounds of attorney-client privilege.

With respect to the former

claim, it is undermined by Mr. Order's previous representations.
During the arbitration, Universitas sought injunctive relief to
require Nova Group to place the insurance proceeds in escrow.

At

oral argument, the arbitrator asked Mr. Order whether Nova Group
had sufficient assets to cover the $35 million award sought by
Universitas.

Mr. Order represented that it did and, accordingly,

in denying Universitas' motion, the arbitrator specifically noted
that:

"While [Nova Group's] counsel's [Mr. Order] unwillingness

to divulge the location and amount of Trust assets is of concern,
7

counsel did state that the Trust would be able to satisfy any
award to [Universitas]" (Docket No. 77, Ex. B).

This statement

demonstrates that Mr. Order does have knowledge about Nova
Group's assets.

The factual bases underlying this representation

are directly relevant to Universitas' efforts to track and locate
those assets.

Finally, Mr. Order's preemptive assertion of

attorney-client privilege also does not warrant the quashing of
the subpoena.

Rule 45(d)(2)(A) requires that the party asserting

the privilege both "(i) expressly make the claim; and (ii)
describe the nature of the withheld . . . communications . . . in
a manner that, without revealing information itself privileged or
protected, will enable the parties to assess the claim."
Fed.R.Civ.P. 45(d)(2)(A).

Mr. Order's unadorned assertion that

"other questions [Universitas' counsel] may ask may very well be
protected from discovery by the attorney-client privilege"
(Docket No. 62 ¶ 9) does not satisfy this standard.

See Freydl

v. Meringolo, 09 Civ. 7196 (BSJ)(KNF), 2011 WL 1344368 at *4
(S.D.N.Y. Mar. 31, 2011) (Fox, M.J.) (non-party's claim that
subpoena would "most likely reveal information protected by the
attorney-client privilege" was insufficient to satisfy Rule
45(d)(2) (internal alterations in original)); see also In re
Parmalat Sec. Litig., 04 MD 1653 (LAK)(HBP), 2006 WL 3592936 at
*3 (S.D.N.Y. Dec. 1, 2006) (Pitman, M.J.) (party asserting
8

privilege bears burden of demonstrating that documents in
question are privileged and "mere conclusory or ipse dixit
assertions" do not suffice (quoting In re Bonanno, 344 F.2d 830,
833 (2d Cir. 1965)).

Accordingly, Mr. Order's motion to quash is

denied.
Mr. Order also requests that, in the event the
deposition proceeds, Universitas compensate him for the time
spent traveling to and testifying at the deposition at his usual
billable rate of $460 per hour (Docket No. 62 ¶ 13).
request is similarly without merit and is denied.

This

Rule 45(c)

permits a court to require the serving party, in certain
circumstances, to ensure that the witness will be reasonably
compensated beyond the fees for attendance and mileage required
under Rule 45(b), but none of those circumstances are present
here.

Fed.R.Civ.P. 45(c)(3)(B).

Mr. Order's request for

additional compensation is therefore denied.

Accordingly, Mr.

Order is directed to comply with Universitas' deposition subpoena
within 14 days of this Opinion and Order.

B.

Mr. Trudeau's Motion
to Quash is Denied

Donald J. Trudeau -- the President of Benistar Admin
Services Inc. (Docket No. 87, Ex. P), the entity that administers

9

the Charter Oak Trust (Docket No. 87, Ex. Q) -- has also moved to
quash the deposition subpoena Universitas served on him (Docket
No. 74).

He argues (1) that his deposition is premature given

Universitas' formerly pending motion to dismiss for lack of
subject matter jurisdiction; (2) that Universitas should first
seek discovery from Nova Group; (3) the subpoena is unlawful
because Universitas failed to register its judgment in
Connecticut; and (4) that the subpoena may not have been served
properly.

Mr. Trudeau's motion to quash is also without merit

and is, therefore, denied.
Any argument about the prematurity of his deposition is
now moot given Judge Swain's denial of Nova Group's motion to
dismiss on October 5, 2012.

There is now no question that this

action and its concomitant discovery, including the deposition of
Mr. Trudeau, should proceed.

Moreover, his argument that

Universitas should first seek discovery from Nova Group itself is
disingenuous.

Universitas has sought discovery directly from

Nova Group (see, e.g., Docket No. 80).

Moreover, given Mr.

Trudeau's close involvement with the Charter Oak Trust, he should
have knowledge concerning the finances of this entity and his
testimony is reasonably calculated to lead to the discovery of
Nova Group's and Charter Oak Trust's assets, including the
disposition of the insurance proceeds.
10

There is similarly no merit to Mr. Trudeau's third
argument.

As a factual matter, Universitas has registered its

judgment in the District of Connecticut (Docket No. 87, Ex. T).
As a legal matter, the registration of the judgment is immaterial
to Universitas' subpoena to Mr. Trudeau.

After judgment has been

entered, a federal court retains jurisdiction, including its
subpoena power, to enforce that judgment.

Fed.R.Civ.P. 69(a);

see Zeiler v. Deitsch, 500 F.3d 157, 170 (2d Cir. 2007) ("Once
confirmed, [arbitration] awards become enforceable court orders,
and when asked to enforce such orders, a court is entitled to
require actions to achieve compliance with them.").

In other

words, the court's subpoena power in post-judgment discovery is
not limited to the jurisdiction in which the judgment creditor
has registered the judgment.

Therefore, Universitas'

registration of the judgment has no impact on the effectiveness
of the subpoena, nor on Mr. Trudeau's obligation to comply with
it.
Finally, Mr. Trudeau's suggestion that service of the
subpoena was not effectuated properly (Docket No. 75 at 1 n.1) is

11

unsupported by any factual evidence.3

It therefore provides no

basis to quash the subpoena.
Mr. Trudeau's motion to quash (Docket No. 74) is denied
and he is directed to comply with the subpoena previously issued
to him within 14 days of date of this Opinion and Order.

C.

Motions to Quash the
Subpoenas Served on the
Subpoenaed Entities are Denied

Next, Universitas has served document subpoenas on the
following non-parties:

(1) Avon Capital, LLC; (2) Grist Mill

Capital, LLC; (3) Malkin Properties; (4) Lincoln Financial Group
and Lincoln National Life Insurance Company; and (5) Penn Mutual
Life Insurance Company (collectively, the "Subpoenaed Entities").
Avon Capital, LLC and Grist Mill Capital, LLC have the same
office address as Nova Group and are allegedly secured creditors
of Nova Group; Universitas has sought documents related to
transactions they engaged in with Nova Group, the Charter Oak
Trust, and individuals associated with these entities (Docket No.
118, Ex. A at 6-15, 20-29).

Malkin Properties is the leasing

agent for the building in which Nova Group leases its offices,

3

In any event, Mr. Trudeau's unsubstantiated hints at
invalid service are undermined by the fact that he did actually
receive the subpoena as evidenced by his filing of the instant
motion to quash.
12

and Universitas has sought documents related to rent payments for
that office (Docket No. 120, Ex. A).

Finally, Lincoln Financial

Group, Lincoln National Life Insurance Company, and Penn Mutual
Life Insurance Company are insurance carriers for policies for
which Charter Oak Trust is the named beneficiary, and Universitas
has sought documents concerning any payments made between them
and Nova Group, Charter Oak Trust, and other associated entities
(Docket No. 122, Ex. A; No. 124, Ex. A).
Universitas also served restraining notices on Avon
Capital, LLC; Avon Insurance Trust; and Avon Insurance Welfare
Benefit Plan (collectively, the "Restraining Notices Entities")
(Docket No. 118, Ex. A at 2, 16).

The latter two entities,

however, were not served with document subpoenas.
Nova Group has moved to quash the document subpoenas
served on the Subpoenaed Entities and has also included Avon
Insurance Trust and Avon Insurance Welfare Benefit Plan in these
motions (Docket Nos. 117, 119, 121, and 123).

Nova Group,

however, has not moved for any relief with respect to any of the
restraining notices issued to the Restraining Notice Entities.
As an initial matter, because Universitas has not
served either Avon Insurance Trust or Avon Insurance Welfare
Benefit Plan with document subpoenas, there is no subpoena for me
to consider, and thus any relief Nova Group seeks with respect to
13

Avon Insurance Trust and Avon Insurance Welfare Benefit Plan is
denied.

With respect to the Restraining Notice Entities, Nova

Group has not sought any relief, and I accordingly grant none.
Next, there is no basis to grant Nova Group's motions
to quash the document subpoenas to the Subpoenaed Entities.

Nova

Group has submitted virtually identical memoranda of law with
respect to each of the Subpoenaed Entities that argue that the
subpoenas are premature given Nova Group's then-pending motion to
dismiss and that the subpoenas are unduly burdensome because they
seek "private, confidential, and commercially sensitive" and
"irrelevant" information related to its "financial records and
dealings with a panoply of entities" (Docket No. 118 at 2; No.
120 at 1-2; No. 122 at 2; and No. 124 at 1-2).
As an initial matter, it is doubtful whether Nova Group
even has standing to move to quash the subpoenas on behalf of the
Subpoenaed Entities.

A party lacks standing to challenge

subpoenas issued to non-parties on the grounds of relevancy or
undue burden.

See Estate of Ungar v. Palestinian Auth., 400 F.

Supp. 2d 541, 554 (S.D.N.Y. 2005) (McMahon, D.J.); US Bank Nat'l
Assoc. v. PHL Variable Ins. Co., 12 Civ. 6811 (CM)(JCF), 2012 WL
5395249 at *2 (S.D.N.Y. Nov. 5, 2012) (Francis, M.J.) (citing
cases).

Instead, a non-subpoenaed party has standing only if it

has a privilege, privacy or proprietary interest in the documents
14

sought.

See Catskill Dev., L.L.C. v. Park Place Entm't Corp.,

206 F.R.D. 78, 93 (S.D.N.Y. 2002) (McMahon, D.J.); see also Solow
v. Conseco, Inc., 06 Civ. 5988 (BSJ)(THK), 2008 WL 190340 at *3
(S.D.N.Y. Jan. 18, 2008) (Katz, M.J.) ("[C]ourts have recognized
that parties with a privacy interest in subpoenaed documents have
standing to oppose the subpoena." (citing cases)).

Here, Nova

Group has made no attempt to establish any proprietary or other
confidentiality-related interest it may have in the requested
documents beyond a conclusory assertion that the subpoenas seek
documents that are "private, confidential, and commercially
sensitive."

This bald statement, by itself, is insufficient to

confer Nova Group with standing, and, accordingly, its motions to
quash are denied.
Even assuming that Nova Group does have standing, its
motions to quash with respect to the Subpoenaed Entities should,
nevertheless, be denied.

First, as previously explained, Nova

Group's argument that the subpoenas are premature is now moot.
Second, whatever privacy interests Nova Group may have in its
"financial records and dealings with a panoply of entities"
simply do not carry the same force in discovery proceeding under
Rule 69.

Because the scope of Rule 69 discovery includes any

information reasonably calculated to lead to the discovery of a
judgement debtor's assets, it may necessarily be aimed at non15

parties who have information, including financial records,
related to those assets.

See EM Ltd. v. Republic of Argentina,

supra, 695 F.3d at 207 ("It is not uncommon to seek asset
discovery from third parties, including banks, that possess
information pertaining to the judgment debtor's assets." (citing
cases)).

Moreover, Nova Group, aside from a perfunctory protest

that the subpoenas seek irrelevant documents, has not provided
any explanation for this assertion.

Indeed, from my review of

the subpoenas, Universitas appropriately seeks documents that are
reasonably calculated to assist it in collecting its judgment.
Therefore, Nova Group's motions to quash with respect
to the Subpoenaed Entities (Docket Nos. 117, 119, 121, and 123)
are denied.

The Subpoenaed Entities are directed to comply with

Universitas' previously issued document subpoenas within 14 days
of this Opinion and Order.

D.

Motions to Quash
Subpoenas Served on
Individual Non-Parties are Denied

Universitas has also served information subpoenas on
Wayne Bursey and Daniel Carpenter and deposition subpoenas on
Molly Carpenter and Amanda Rossi (collectively, the "Individual
Non-Parties").

Mr. Bursey is the trustee of the Charter Oak

Trust (Docket No. 136, Ex. A at 3).
16

Mr. Carpenter was previously

the chairman of Nova Group (Docket No. 87, Ex. J).

Ms. Carpenter

and Ms. Rossi are, respectively, the treasurer and secretary of
Nova Group (Docket No. 136, Ex. B).

The Individual Non-Parties'

motions to quash (Docket Nos. 107, 125, 127, and 129) are denied.
The Individual Non-Parties all claim that the subpoenas
are premature.

However, as previously explained in this Opinion

and Order, this argument is now moot in light of Judge Swain's
denial of Nova Group's motion to dismiss.

The Individual Non-

Parties are directed to comply with the subpoenas Universitas
previously served on them within 14 days of the date of this
Opinion and Order.
Mr. Carpenter and Mr. Bursey additionally argue that
the information subpoenas served upon them should be quashed
because the subpoenas' service did not comply with applicable New
York state law.

There is no dispute that Rule 69 expressly

authorizes Universitas, as a judgment creditor, to rely on
federal discovery procedures, as well as on New York state
discovery procedures, including information subpoenas.
Fed.R.Civ.P. 69(a)(2) ("[T]he judgment creditor . . . may obtain
discovery . . . as provided . . . by the procedure of the state
where the court is located"); N.Y. C.P.L.R. § 5224(a)(3)(i)
(authorizing a judgment creditor to serve information subpoenas).
However, with respect to the service of these state law discovery
17

requests, the Federal Rules of Civil Procedure, not the C.P.L.R.,
controls.

See Estate of Ungar v. Palestinian Auth., supra, 400

F. Supp. 2d at 548 ("The Second Circuit has held that the Federal
Rules of Civil Procedure 'govern' the enforcement of judgments
under Rule 69, and therefore take precedence over New York law
where applicable."), citing Schneider v. Nat'l R.R. Passenger
Corp., 72 F.3d 17, 19-20 (2d Cir. 1995) (quashing service of
process which complied with state law but not with Rule 4).

Rule

45 permits a subpoena to be served outside the district of the
issuing court so long as the subpoena is served "within 100 miles
of the place specified for the deposition, hearing, trial,
production, or inspection."

Fed.R.Civ.P. 45(b)(2)(B).

The

method of service is governed by Rule 5 which permits service by
mailing the subpoena to the person's last known address.
Fed.R.Civ.P. 5(b)(2)(C).
Here, service of the information subpoenas on Mr.
Carpenter and Mr. Bursey complied with the Federal Rules.

Both

were served at their places of residence in Connecticut. (Docket
No. 108, Ex. A, No. 126, Ex. A).

The information subpoenas

served upon them require only written responses.

They,

therefore, do not require either Mr. Carpenter or Mr. Bursey to
travel any distance to comply with the subpoenas, much less to
travel outside of the 100 mile limit in Rule 45.
18

Accordingly,

service was valid under the Federal Rules and Mr. Carpenter's and
Mr. Bursey's motions to quash the information subpoenas based on
invalid service are denied (Docket Nos. 107 and 125).

Mr.

Carpenter and Mr. Bursey are ordered to comply with the
information subpoenas within 14 days of the date of this Opinion
and Order.

E.

Halloran & Sage, LLP's
Motion to Quash is Denied

Non-party law firm Halloran & Sage, LLP ("Halloran &
Sage") has moved to quash the document subpoena, information
subpoena and the restraining notice Universitas served on it
(Docket No. 85).

It claims that (1) the information subpoena and

restraining notice were improperly served on it in Hartford,
Connecticut; (2) the restraining notice is ineffective because it
does not owe a debt to Nova Group and is not in possession or
custody of property in which Nova Group has an interest; and (3)
the document subpoena should be quashed because it is designed to
harass, subjects Halloran & Sage to an undue burden and it seeks
irrelevant and potentially privileged documents.
First, Halloran & Sage's argument concerning service is
without merit.

As explained above with respect to Mr. Carpenter

19

and Mr. Bursey,4 Universitas, as a judgment creditor proceeding
under Rule 69, need only to comply with Rule 45's service
provisions, not those in the C.P.L.R.

Here, Universitas served

the information subpoena and restraining notice on Halloran &
Sage at its New Haven, Connecticut office, which is within 100
miles of Universitas' counsel's office in New York, New York and
this Court.

Thus, service was proper under Rule 45 and there is

no basis to quash the restraining notice or the information
subpoena.
Second, with respect to the effectiveness of the
restraining notice, the dispositive issue is whether Halloran &
Sage owed any debt to Nova Group or if it had any monies of Nova
Group in its possession when the restraining notice was served.
N.Y. C.P.L.R. § 5222(b); see Verizon New England Inc. v. IDT
Domestic Telecom, Inc., 98 A.D.3d 203, 204, 948 N.Y.S.2d 245, 246
(1st Dep't 2012) (affirming that "a restraining notice is
effective only if, at the time of service, the third party on
whom the notice is served owes a debt to, or is in possession of
property of, the judgment debtor").

"Restraining notices will be

vacated where they fail to allege with sufficient specificity the

4

I note that the service arguments Mr. Bursey, Mr. Carpenter
and Halloran & Sage present in their memoranda of law, all
prepared by Halloran & Sage, are virtually identical (Docket No.
86 at 6-7, No. 108 at 3, No. 126 at 3).
20

alleged interest that the judgment debtor has in the assets
sought to be restrained."

JSC Foreign Economic Ass'n

Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 295 F.
Supp. 2d 366, 392 (S.D.N.Y. 2003) (Koeltl, D.J.).
Halloran & Sage maintains that it does not owe a debt
to Nova Group and has no property in which Nova Group has an
interest and has attached to its motion papers several emails and
a letter it sent to Universitas' counsel stating the same.
Universitas claims the opposite.

It points out that Halloran &

Sage represents the Charter Oak Trust in a currently pending
litigation (Docket No. 98, Ex. A), and also represents Mr. Bursey
and Mr. Carpenter, both of whom are closely associated with Nova
Group, and therefore, Universitas infers, it must be receiving
payment from Nova Group.

Despite the emails and letters from

Halloran & Sage, Universitas' inference is not unreasonable given
the intertwined relationship between Halloran & Sage, Nova Group
and individuals associated with the judgment debtor.

Accord-

ingly, I decline to vacate or quash the restraining notice, but
without prejudice to Halloran & Sage's renewal of its motion to
quash if it can provide a sworn declaration from an individual
with personal knowledge that, at the time of service of the
restraining notice, Halloran & Sage did not have any property in

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which Nova Group had an interest and did not owe any debts to
Nova Group.
Finally, Halloran & Sage's third argument in support of
its motion to quash is unsupported by any factual basis.

Judg-

ment creditors are given a wide berth in discovery under Rule 69
to locate and identify the judgment debtor's assets.

Banco

Central De Paraguay v. Paraguay Humanitarian Foundation, Inc., 01
Civ. 9649 (JFK), 2006 WL 3456521 at *9 (S.D.N.Y. Nov. 30, 2006)
(Keenan, D.J.) ("[E]ven if the discovery request is a 'fishing
expedition' . . . this Court recognized long ago that 'a judgment
creditor is entitled to fish for assets of the judgment debtor.'"
(internal citations omitted)).

Halloran & Sage's accusation that

Universitas' document subpoena is designed to harass is undercut
by the fact that Universitas has been consistently been rebuffed
in its discovery efforts by Nova Group and individuals and
entities associated with it, including Halloran & Sage's clients.
Halloran & Sage has also failed to meet its burden to show that
the document subpoena should be quashed because of undue burden,
irrelevancy or privilege.

It has made no attempt to elaborate on

these claims, but rather has only conclusorily asserted that the
requests "have nothing to do with the location of [sic] amount of
Nova's or Charter Oak Trust's assets" (Docket No. 86 at 9).
Moreover, I have examined the requests in the document subpoena
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and note that they seek disclosure of documents relevant to
Universitas' efforts to satisfy its judgment and to locate the
assets of Nova Group.

The requests seek documents that could

explicate Nova Group's assets and liabilities.

Halloran & Sage

represents the Charter Oak Trust and individuals associated with
it and Nova Group.

It is reasonable to infer that it would have

documents that may shed light on the disposition of the insurance
proceeds or otherwise elucidate the trust's financial transactions.
With respect to privilege, I have already rejected Nova
Group's attempt to quash the subpoena served on Halloran & Sage
on privilege grounds in my August 17, 2012 Order (Docket No. 133
("Respondent's motions to quash petitioner's subpoenas issued to
. . . Halloran & Sage LLP . . . are denied.

The witness' obliga-

tion to comply with the subpoenas is adjourned, sine die, pending
discovery from other non-attorney witnesses . . . .").

Even

absent the August 17 Order, Halloran & Sage's assertion that the
requests "might turn up privileged documents" (Docket No. 86 at
9) does not satisfy Rule 45(d) as previously explained in this
Opinion and Order.

Accordingly, Halloran & Sage is directed to

comply with the information and document subpoenas previously
issued to it within 14 days of date of this Opinion and Order.
To the extent that Halloran & Sage withholds any documents on the
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ground of attorney-client or other privilege, it is directed to
submit to Universitas an index that complies with the requirements of Rule 45(d)(2).

F.

Motions to Quash Resolved
by September 20, 2012 Order

Finally, several of the pending motions to quash have
already been resolved by this Court's order entered on September
20, 2012 (Docket No. 156).

Mr. Carpenter and Mr. Bursey both

filed motions to quash Universitas' deposition subpoenas (Docket
Nos. 70, 72).

The September 20 Order directed that "[t]he

depositions of Messrs. Carpenter and Bursey shall be conducted at
the Courthouse on a mutually convenient date, said date to be no
later than October 19, 2012" (Docket No. 156).

Accordingly, the

September 20 Order denied Mr. Carpenter's and Mr. Bursey's
motions to quash.

The Clerk of the Court is directed to close

docket entries 70 and 72.

IV.

Conclusion

For all the foregoing reasons, the pending motions to
quash (Docket Nos. 61, 70, 72, 74, 85, 107, 117, 119, 121, 123,
125, 127 and 129) are denied.

The subpoenaed parties shall

24

comply with the subpoenas previously issued to them as directed
in this Opinion and Order.
Dated: New York, New York
January 4, 2013
SO ORDERED

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HENRY
United States Magistrate Judge
Copies transmitted to:
Paula K. Colbath, Esq.
Michael S. Barnett, Esq.
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Bryan I. Reyhani, Esq.
Reyhani Nemirovsky LLP
200 Park Avenue, 17th Floor
New York, New York 10166
Joseph M. Pastore, III, Esq.
Pastore Shofl & Daily, LLP
4 High Ridge Park
Stamford, Connecticut 06905
Jack E. Robinson, Esq.
Benistar
2187 Atlantic Street
Stamford, Connecticut 062902

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