Case of the Day: Probulk Carriers v. Marvel International

The case of the day is Probulk Carriers Ltd. v. Marvel International Management and Transportation (S.D.N.Y. 2016). The underlying case was for breach of a charter party. Arbitration in London yielded an award in favor of Probulk, and the court in New York had entered a default judgment recognizing and enforcing the award and providing for damages of more than $12 million. Marvel was a Turkish firm; one of its principals was the father of Tolga Karacelik, a Turkish citizen who lived in Turkey.

Probulk served a subpoena, issued by the court in New York, on Karacelik in aid of execution of its judgment. The subpoena was served while Karacelik was in Boston for a film festival. It called for him to testify and to produce documents in Boston. Karacelik moved to quash the subpoena in New York. 1

The judge correctly rejected his argument that the subpoena was improper in light of the Hague Evidence Convention. The judge focused on the point that the Convention is not exclusive. But more to the point, I think, the discovery was to be taken in the United States on account of a subpoena served in the United States, so talk of the Convention is neither here nor there. The judge also rejected Karacelik’s clearly erroneous argument that Rule 45 does not allow service of a subpoena on a foreign non-party witness.

But Karacelik had one good argument: under FRCP 45(c)(1)(A), the subpoena could only command Karacelik’s attendance “within 100 miles of where [he] resides, is employed, or regularly transacts business in person.” This would seem to be fatal to the subpoena. But the judge thought the plain reading of the rule absurd:

Applied literally, however, they could well have the effect of preventing, for example, the enforcement of a subpoena (a) duly served on a foreign national (b) on the steps of the issuing courthouse (c) calling for a deposition within 100 yards of the place of service (d) during the witness’s otherwise planned stay in the United States because that foreign national—although physically present quite near the place of the deposition—neither resides, nor is employed, nor regularly transacts business there. Thus, there is substantial reason to believe that the Rule should not be construed to require that absurd result.

But he “saved” the subpoena by modifying it, pursuant to FRCP 45(d)(3), to provide that the deposition would take place at a mutually agreeable location or else in Istanbul.

I am not sure this is right. I wouldn’t see a fundamental problem if a New York court issued a subpoena that was served in Massachusetts on a resident of, say, California and then modified the subpoena to require the deposition to take place in California rather than in Massachusetts, because the subpoena (probably) could have called for the deposition to take place in California in the first instance even if served in Massachusetts. The problem here is that I’m not sure a subpoena could call for the deposition to take place in Turkey in the first instance. This seems to me to be both a question of territorial jurisdiction and also a matter with international law implications, since the US court has to consider whether the foreign state’s law permits US-style depositions. I don’t know the situation in Turkey, but suppose the witness was a German.

Notes:

  1. As an aside, I believe he probably moved to quash in the wrong court. Under FRCP 45(d)(3), such motions are to be heard in the court where compliance with the subpoena is required, which here would be the District Court in Boston. That court would have discretion to transfer the motion to New York if Karacelik consented or in extraordinary circumstances, see FRCP 45(f).

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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