Filing 3

DECISION AND ORDER: the Petition to Perpetuate Testimony under Fed. R. Civ. P. 27 (ECF No. 1) is DENIED. The Clerk of Court is directed to close this case.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/29/17. (SCE)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
IN RE: AGNES HOLMES,

Case # 15-MC-56-FPG
Petitioner.

DECISION AND ORDER

Petitioner Agnes Holmes (“Petitioner”), represented by counsel, brings this Petition to
obtain Court authorization for the deposition Dr. Hatim Hamad under Fed. R. Civ. P. 27. ECF No.
1. For the following reasons, the Petition is DENIED.
BACKGROUND
Petitioner expects to be a party to a federal lawsuit in this Court regarding violations of the
Fair Debt Collection Practices Act (“FDCPA”) and Section 349 of the New York General Business
Law, but alleges that she presently lacks sufficient information to file that action. Petitioner’s
daughter was contacted in April 2015 by Brian Davidson of Eagle Capital Enterprises regarding a
debt allegedly owed by Petitioner to Dr Hatim Hamad and/or Advanced Endodontics of Buffalo,
P.C. Petitioner alleges that Davidson left threatening messages on her daughter’s voicemail
regarding the alleged debt.
Petitioner received a letter dated April 21, 2015 from Eagle Capital Enterprises, which was
signed by Brian Davidson. The letter (which is attached to the Petition) states that Eagle Capital
Enterprises is “representing the legal interest of Advanced Endodontics of Buffalo, PC” and
“unless the full balance of $342.00 is received upon receipt of this letter or arrangements are made
with the undersigned, we would have no other recourse but to report your account to the various
credit reporting agencies and to exercise whatever rights and remedies necessary under the law to
enforce full restitution.” The letter directed Petitioner to make her check payable to Eagle Capital

Enterprises, and listed a mailing address of P.O. Box 7, Ronkonkoma, New York 11779. The
letter also listed a phone and fax number for Eagle Capital Enterprises.
Petitioner alleges that Eagle Capital Enterprises is not registered with the New York
Secretary of State, and also alleges that Brian Davidson is not admitted to practice law in New
York. In Petitioner’s opinion, Eagle Capital Enterprises does not appear to be a legitimate business
entity, nor does there appear to be a Brian Davidson who lives on Long Island, NY. Petitioner and
her counsel sent a letter to Dr. Hatim Hamad on June 24, 2015, and requested the true legal name
and true address of Brian Davidson d/b/a Eagle Capital Enterprises. In response to his letter,
counsel received a phone call from Brian Davidson on July 6, 2015. Davidson identified himself
as an attorney, shouted obscenities, and threatened to come to the home of Petitioner’s counsel if
he sent another letter to Dr. Hamad. The call ended when Petitioner’s counsel asked Davidson if
he was off his meds, and Davidson terminated the call.
Petitioner has not commenced an action against Brian Davidson or Eagle Capital
Enterprises. Instead, she has filed the present Fed. R. Civ. P. 27 Petition seeking to take the
deposition of Dr. Hatim Hamad, so she can question Dr. Hamad about the business relationship
between Dr. Hamad and/or Advanced Endodontic of Buffalo, P.C. and Brian Davidson d/b/a Eagle
Capital Enterprises, and to learn any contact information possessed by Dr. Hamid for Davidson.
DISCUSSION
In relevant part, Rule 27 provides that:
A person who wants to perpetuate testimony about any matter cognizable in a
United States court may file a verified petition in the district court for the district
where any expected adverse party resides. The petition must ask for an order
authorizing the petitioner to depose the named persons in order to perpetuate their
testimony. The petition must be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an action cognizable in a
United States court but cannot presently bring it or cause it to be brought;
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(B) the subject matter of the expected action and the petitioner's interest;
(C) the facts that the petitioner wants to establish by the proposed testimony
and the reasons to perpetuate it;
(D) the names or a description of the persons whom the petitioner expects
to be adverse parties and their addresses, so far as known; and
(E) the name, address, and expected substance of the testimony of each
deponent.

In order to prevail on this Rule 27 petition, Petitioner must satisfy three elements. “First,
they must furnish a focused explanation of what they anticipate any testimony would demonstrate.
Such testimony cannot be used to discover evidence for the purpose of filing a complaint. Second,
they must establish in good faith that they expect to bring an action cognizable in federal court,
but are presently unable to bring it or cause it to be brought. Third, petitioners must make an
objective showing that without a Rule 27 hearing, known testimony would otherwise be lost,
concealed or destroyed.” In re Petition of Allegretti, 229 F.R.D. 93, 96 (S.D.N.Y. 2005)
Rule 27 affords relief only to those petitioners seeking to “perpetuate testimony,” and in
this context, to perpetuate means to preserve known testimony. In other words, Rule 27 may not
be used as a vehicle for discovery prior to filing a complaint. See Ash v. Cort, 512 F.2d 909, 912
(3d Cir.1975) (“Rule 27 is not a substitute for discovery. It is available in special circumstances to
preserve testimony which could otherwise be lost.”); Shuster v. Prudential Securities Inc., No. 91
Civ. 0901, 1991 WL 102500, at *1 (S.D.N.Y. June 6, 1991); Petition of the State of North
Carolina, 68 F.R.D. 410, 412 (S.D.N.Y.1975); In re Checkosky, 142 F.R.D. 4, 7 (D.D.C.1992); In
re Boland, 79 F.R.D. 665, 668 (D.D.C.1978); In Matter of Gurnsey, 223 F.Supp. 359, 360
(D.D.C.1963) (“It [Rule 27] is not a method of discovery to determine whether a cause of action
exists; and, if so, against whom the action should be instituted.”).
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Here, Petitioner is not seeking to perpetuate known testimony, but is attempting to secure
pre-complaint discovery. Such a use is not permitted under the Rule, and the Petition must be
denied.
CONCLUSION
For the foregoing reasons, the Petition to Perpetuate Testimony under Fed. R. Civ. P. 27
(ECF No. 1) is DENIED. The Clerk of Court is directed to close this case.

IT IS SO ORDERED.
DATED:

September 29, 2017
Rochester, New York

____________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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