Racher et al v. Lusk et al

Filing 176

ORDER denying 166 plaintiffs' Motion to Compel Lusk to Personally Appear at Trial gut granting plaintiffs leave to take a video trial deposition of Lusk to be used during the trial of this case (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 1/5/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DORIS RACHER,
SANDRA CISPER, and
EARLENE ADKISSON, Co-Personal
Representatives of the ESTATE OF
ERYETHA MAYBERRY, DECEASED,
and
JAMES KINGSBURY, Personal
Representative of the Estate of and Next of
Kin to Rachel Mary Kingsbury, Deceased,
Plaintiffs,
vs.
RON LUSK, an individual;
WESTLAKE MANAGEMENT
COMPANY, a Texas Corporation; and
WESTLAKE NURSING HOME
LIMITED PARTNERSHIP, an Oklahoma
limited partnership, formerly d/b/a Quail
Creek Nursing and Rehabilitation Center,
Defendants.

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Case No. CIV-13-665-M

ORDER
Before the Court is plaintiffs’ Motion to Compel Lusk to Personally Appear at Trial, filed
December 30, 2015. On January 4, 2016, defendant Ron Lusk (“Lusk”) filed his response. Based
upon the parties’ submissions, the Court makes its determination.
Plaintiffs’ counsel recently learned from defendants’ counsel that Lusk may not appear at
the trial of this case.1 Lusk owns 100% of defendant Westlake Management Company and 99% of
defendant Westlake Nursing Home Limited Partnership.2 Additionally, Lusk is the sole witness to

1

This case is scheduled to start trial on January 12, 2016.

2

Defendant Westlake Management Company owns the other 1% of defendant Westlake
Nursing Home Limited Partnership. Defendant Westlake Management Company has no employees,

the allegedly fraudulent transfers at issue in this case. However, Lusk is located more than 100
miles from this Court. In light of the above, plaintiffs now move this Court to enter an order
compelling Lusk to personally appear at the trial of this case.
Plaintiffs assert that Lusk’s personal appearance at trial is necessary for a fair, full, and
complete adjudication of this case. Specifically, plaintiffs assert that Lusk’s testimony is necessary
to explain the evidence and his absence would create many questions for the jury and would cause
confusion. Further, plaintiffs assert they were not allowed to fully depose Lusk because there were
several times Lusk refused to answer questions and Lusk’s depositions were discovery depositions
and not trial depositions. Plaintiffs, therefore, contend that this Court should use its inherent powers
to order Lusk’s appearance at trial.
Plaintiffs also assert that based upon previous correspondence between counsel, plaintiffs
understood that Lusk would be appearing at trial.3 Plaintiffs further contend that Lusk’s inconsistent
position concerning his refusal to personally appear at the trial of this case has placed plaintiffs at
a significant disadvantage and equitable estoppel precludes Lusk from refusing to personally appear
at trial to testify. Finally, plaintiffs assert that the current version of Federal Rule of Civil Procedure
45 requires Lusk to personally appear at trial. Specifically, plaintiffs assert that the current business
of defendants in Oklahoma is to defend and resolve any pending litigation that is related or incident
thereto or connected with the nursing home and Lusk, therefore, is required to personally appear at

and Lusk is its only officer and agent.
3

Lusk also personally and voluntarily attended the four-day trial in the related case of
Racher, et al. v. Westlake Nursing Home Limited Partnership, et al., Case No. CIV-13-364-M.
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trial because all defendants, including Lusk, “regularly transact business in person” in the State of
Oklahoma.
Lusk asserts that Rule 45(c)(1) does not permit the Court to order him to personally appear
at trial, as he is located more than 100 miles from this District. Lusk further asserts that it is
improper for this Court to rely on its inherent powers to compel his attendance at trial because it
would be in direct contravention of Rule 45(c) and would make the restrictions in Rule 45(c)
meaningless. Additionally, Lusk asserts that he does not regularly transact business in person in
Oklahoma. Specifically, Lusk contends that defending litigation is not “transacting business” and
the small number of times he has been in Oklahoma does not constitute “regularly” transacting
business. Further, Lusk contends that none of the alleged “business” was done by him in his
personal capacity, but it was done in his capacity as an officer of defendant Westlake Management
Company. Finally, Lusk asserts that equitable estoppel does not apply to the instant circumstances.
Rule 45(c)(1) provides:
A subpoena may command a person to attend a trial, hearing, or
deposition only as follows:
(A)
within 100 miles of where the person resides, is
employed, or regularly transacts business in person;
or
(B)
within the state where the person resides, is
employed, or regularly transacts business in
person, if the person
(i)
is a party or a party’s officer; or
(ii)
is commanded to attend a trial and would not
incur substantial expense.
Fed. R. Civ. P. 45(c)(1).
Having carefully reviewed the parties’ submissions, the Court finds that Rule 45 does not
require Lusk to personally appear at trial. First, Lusk resides in Texas, and this Court is not within

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100 miles of where Lusk resides. Second, this Court finds that Lusk does not regularly transact
business in Oklahoma. Specifically, the Court finds “defending litigation” does not equate to
“transacting business,” and even if it did, the small number of times Lusk has been in Oklahoma
defending litigation does not constitute “regularly” transacting business.4 Additionally, the Court
finds that it would be inappropriate for this Court to use its inherent powers to compel Lusk to
personally appear at the trial in this case because doing so would directly contravene the plain
language of Rule 45(c)(1).
However, the Court finds that plaintiffs would be significantly prejudiced if Lusk did not
personally appear and testify at trial and they were required to rely on the depositions taken thus far
in this case. The Court, therefore, finds that the equities of this case require the Court to take some
action regarding Lusk’s appearance at trial, albeit action short of compelling Lusk to personally
appear at the trial. Accordingly, if Lusk does not agree to personally appear at trial, the Court grants
plaintiffs leave to take a video trial deposition of Lusk to be used during the trial of this case. The
Court will not continue this case from the Court’s January trial docket but realizes that the parties
may not be able to take the deposition prior to the January 12, 2016 start date of the trial. Jury
selection will still be held on January 12, 2016, but if the parties have not taken Lusk’s deposition
by that date, the presentation of evidence will not begin until a later date in January. At the pretrial
conference scheduled for January 6, 2016 at 2:00 p.m., the parties shall advise the Court whether

4

The Court further finds that applying the prior version of Rule 45 that was in effect when
this case was filed would not alter the Court’s conclusion. While courts had ruled that the 100 mile
rule did not apply to a party in a case, those rulings do not appear to logically follow from the text
of Rule 45.
4

Lusk will be personally appearing at the trial and if not, when the trial deposition will be taken and
when trial will be able to commence.
For the reasons set forth above, the Court DENIES plaintiffs’ Motion to Compel Lusk to
Personally Appear at Trial [docket no. 166] but GRANTS plaintiffs leave to take a video trial
deposition of Lusk to be used during the trial of this case.
IT IS SO ORDERED this 5th day of January, 2016.

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