Free Motion to Quash - District Court of Delaware - Delaware

Case 1:07-cv-00034-SLR

Document 6

Filed 02/15/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE ) ) ) ) )

In re: DAVID J. BUCHANAN, Appellant.

07-34-SLR Bankruptcy Appeal Bkrptcy Case No.: 04-12419

MOTION TO QUASH SUBPOENA COMES NOW Movants Thomas E. Gay, Esquire, and the law firm of Stumpf Vickers & Sandy, P.A., (hereinafter collectively "SVS" unless otherwise disambiguated), and pursuant to Fed. Rr. Civ. P. 26(c) and 45(C)(3)(a) requests this Honorable Court for a Order quashing a subpoena filed by Appellant David J. Buchanan in this matter and states in support thereof the following, to wit: 1. Appellant is the Plaintiff in a separate and unrelated matter captioned David J.

Buchanan v. Thomas E. Gay, et al., Civ. A. No. 06-711-SLR, in which SVS has appeared and is defending. 1. In Civil Action No. 06-711-SLR, on January 24, 2007, SVS received in the mail

from Appellant a document styled Request for Discovery seeking in thirty-two numbered paragraphs certain documents. Those discovery requests were the subject of a Motion to Stay Discovery filed by SVS on January 30, 2007, and accompanied by a Motion for Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6). (06-cv-711 D.I. ## 13, 15). 2. Appellant has now filed a subpoena against Thomas E. Gay, Esquire, in this

Bankruptcy appeal, seeking: "All billing and payment information of any account subject to Barbara H. Buchanan, showing amounts charged, paid, and discounts applied. The address and phone number of Ronald Irlick (person subject to financial affidavit in family court). A record

Case 1:07-cv-00034-SLR

Document 6

Filed 02/15/2007

Page 2 of 7

of any phone call placed to Dr. E. Wilson, III, PhD. office, home, cell phone and/or beach house in the past 5 years [sic]." (Exhibit A hereto is a copy of the Subpoena pursuant to D. Del. LR 37.1). 3. The information sought is already the subject of Appellant's Request for

Discovery subject to the pending Motion for Protective Order Staying Discovery in Case No. 06711-SLR. 4. As Appellant makes clear in his Answer Opposing Motion to Stay Discovery and

Motion to Compel Discovery filed on February 7, 2007, in 06-711-SLR, (D.I. # 34), the information he seeks is related to "an appeal for Bankruptcy before the same court Case No. 0734-SLR", (Plaintiff's Motion at ¶4), and "will also be used to defend criminal matters pertaining to financial spawned from Mr. Gay's litigation and brought before the District of Columbia Superior Court Case No. D.C. 2006-CF2-027494, and in the State of Main FORDC-CR-2006590 . . . [sic]." (Plaintiff's Motion at ¶5). 5. On an appeal from a Bankruptcy Court decision, "the court applies a clearly

erroneous standard to the Bankruptcy Court's findings of fact and a plenary standard to its legal conclusions." Osmar Sylvania, Inc. v. SLI, Inc., 2004 U.S. Dist. LEXIS 20600, Jordan, J., Mem. Op. at *6 (Oct. 5, 2004). See also, Green v. O'Neill, 2004 U.S. Dist. LEXIS 5910, Jordan, J., Mem. Op. at **5 (March 31, 2004). 6. In other words, Appellant's appeal is on the record created before the Bankruptcy

Court and he has no right of discovery against any person for any purpose. See also, Fed. R. Civ. P. 52(a) "In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 . . . . Findings of fact shall not be set aside unless clearly erroneous, and due

Case 1:07-cv-00034-SLR

Document 6

Filed 02/15/2007

Page 3 of 7

regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."). WHEREFORE Thomas E. Gay, Esquire, and Stumpf Vickers & Sandy, P.A., request this Honorable Court for an ORDER quashing Plaintiff's subpoena attached as Exhibit A hereto and staying all discovery in this matter pending resolution of the Motion for Dismissal, and such other relief as the Court finds mete and just. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN /s/Joseph Scott Shannon Joseph Scott Shannon, Esquire (I.D. No. 3434) 1220 North Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899 ­ 8888 tel.: 302.552.4329 fax.: 302.651.7905 e-mail: [email protected] Counsel for Thomas E. Gay, Esquire, and the Law Firm of Stumpf Vickers & Sandy, P.A. Dated: February 15, 2007

Case 1:07-cv-00034-SLR

Document 6

Filed 02/15/2007

Page 4 of 7

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE ) ) ) ) )

In re: DAVID J. BUCHANAN, Appellant.

07-34-SLR Bankruptcy Appeal Bkrptcy Case No.: 04-12419

ORDER ON THE MOTION OF DEFENDANTS THOMAS E. GAY AND STUMPF VICKERS & SANDY, P.A. QUASHING PLAINTIFF'S SUBPOENA AND NOW the Court, having heard and considered the Motion of Movants Thomas E. Gay, Esquire, and the law firm of Stumpf Vickers & Sandy, P.A., for an Order quashing Plaintiff's subpoena, does hereby FIND and ORDER: The Motion of Thomas E. Gay, Esquire and the law firm of Stumpf Vickers & Sandy, P.A., is hereby GRANTED.

_____________________________________ The Honorable Sue L. Robinson cc: Clerk of the Court David J. Buchanan, pro se James B. Tyler, III, Esquire Joseph Scott Shannon, Esquire

Case 1:07-cv-00034-SLR

Document 6

Filed 02/15/2007

Page 5 of 7

CERTIFICATE OF SERVICE Joseph Scott Shannon, Esquire, hereby certifies that on February 15, 2006, he caused true and correct copies of the attached Defendants Thomas E. Gay's and Stumpf Vickers & Sandy, P.A.'s Motion to Quash Subpoena to be served upon the following persons in the manner indicated: David J. Buchanan 34806 Hudson Road Laurel, DE 19947 Via 1st Class U.S. Mail Postage Prepaid James B. Tyler, III, Esquire 211 E. Market Street P.O. Box 555 Georgetown, DE 19947 Via 1st Class U.S. Mail, postage prepaid

MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN /s/Joseph Scott Shannon Joseph Scott Shannon, Esquire (I.D. No. 3434) 1220 North Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899 ­ 8888 tel.: 302.552.4329 fax.: 302.651.7905 e-mail: [email protected] Counsel for Thomas E. Gay, Esquire, and the Law Firm of Stumpf Vickers & Sandy, P.A.

Case 1:07-cv-00034-SLR

Document 6

Filed 02/15/2007

Page 6 of 7

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE ) ) ) ) )

In re: DAVID J. BUCHANAN, Appellant.

07-34-SLR Bankruptcy Appeal Bkrptcy Case No.: 04-12419

STATEMENT OF COUNSEL PURSUANT TO D. Del. LR 7.1.1 COMES NOW Counsel for Movants Thomas E. Gay, Esquire, and Stumpf Vickers & Sandy, P.A., and pursuant to D. Del. LR 7.1.1 hereby states as follows: 1. Prior to filing the original Motion to Stay Discovery Pursuant to Fed. R. Civ. P.

26(c), on January 30, 2007, (D.I. # 15), addressing Appellant's efforts to obtain the same information through premature discovery in the unrelated matter of Buchanan v. Gay, et al., Civil Action No. 06-711-SLR, Counsel placed a telephone call to Appellant pro se David Buchanan at the telephone number listed on the Court's Docket for the purpose of reviewing Plaintiff's discovery requests and left a message identifying myself and requesting Plaintiff give me a call. 2. To date, that phone message has not been returned or responded to by Plaintiff,

except for his filing in Case No. 06-711-SLR, after receipt of the Motion to Stay Discovery an Answering Brief Opposing Motion to Stay and Motion to Compel Discovery, (D.I. # 34), along with the subpoena served directly on my Clients in this Bankruptcy Appeal, and which is the subject of the instant Motion to Quash Subpoena. 3. Counsel's reasonable efforts to pursue an agreement on staying discovery further

to the Court's Rules having been rebuffed by Plaintiff, the attached Motion to Quash Subpoena is being presented for the Court's consideration.

Case 1:07-cv-00034-SLR

Document 6

Filed 02/15/2007

Page 7 of 7

MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN /s/Joseph Scott Shannon Joseph Scott Shannon, Esquire (I.D. No. 3434) 1220 North Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899 ­ 8888 tel.: 302.552.4329 fax.: 302.651.7905 e-mail: [email protected] Counsel for Thomas E. Gay, Esquire, and the Law Firm of Stumpf Vickers & Sandy, P.A. Dated: February 15, 2007

Case 1:07-cv-00034-SLR

Document 6-2

Filed 02/15/2007

Page 1 of 2

Case 1:07-cv-00034-SLR

Document 6-2

Filed 02/15/2007

Page 2 of 2