Case 11-13511-KJC Doc 2904 Filed 04/01/14 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ------------------------------------------------------- x In re FILENE S BASEMENT, LLC, et al., Reorganized Debtors. 1 ------------------------------------------------------- x ASG EQUITIES SECAUCUS LLC, Movant, -against- 99 HUDSON, LLC, Respondent. ------------------------------------------------------- x Chapter 11 Case No. 11-13511 (KJC) Jointly Administered Re Docket No. 2892 Hearing Date April 2, 2014, at 200 p.m. (ET) MOTION OF ASG EQUITIES SECAUCUS LLC TO QUASH SUBPOENA AD TESTIFICANDUM ASG Equities Secaucus LLC ( ASG ) submits this motion (the Motion ) for an order pursuant to Rule 45(d)(3) of the Federal Rules of Civil Procedure ( Fed. R. Civ. P. ) and Rule 9016 of the Federal Rules of Bankruptcy Procedure ( Fed. R. Bank. P. ), substantially in the form of Exhibit A, quashing the Subpoena ad Testificandum (the 1 The Reorganized Debtors and the last four digits of their respective taxpayer identification numbers are as follows Filene s Basement, LLC (8277), Syms Corp. (5228), Syms Clothing, Inc. (3869), and Syms Advertising Inc. (5234). The Reorganized Debtors address is One Syms Way, Secaucus, New Jersey 07094. {BAY02476390v1}
Case 11-13511-KJC Doc 2904 Filed 04/01/14 Page 2 of 5 Subpoena ), dated March 31, 2014 [D.I. 2892], filed by 99 Hudson, LLC ( 99 Hudson ). In support of its Motion, ASG respectfully represents Summary of Argument 1. As described more fully below, 99 Hudson s failure to comply with the basic requirements of Fed. R. Civ. P. 45 renders the Subpoena ineffective on its face. The Subpoena (i) requires Mr. Gindi to comply beyond the 100 mile geographical limit specified in the Rule, and (ii) was served improperly, without tender of the required witness fees. A non-compliant and improperly served subpoena that fails to satisfy Fed. R. Civ. P. 45 should require no order quashing it. Nevertheless, out of an abundance of caution, ASG files this motion as a protective measure in the event 99 Hudson attempts to remedy any service defect between the time of this writing and the April 2, 2014 hearing ( April 2 Hearing ). Pertinent Facts 2. At 1000 a.m. (ET) yesterday morning, counsel to 99 Hudson emailed ASG s counsel seeking confirmation that Mr. Raymond Gindi, one of ASG s business principals, would attend the April 2, 2014 hearing See E-mail from Heath Rosenblat to Judy Liu, dated March 31, 2014, attached hereto as Exhibit B. Less than one hour later, ASG s counsel promptly replied that, in compliance with this Court s direction at the telephonic status conference on March 28, 2014, an appropriate ASG decision-maker would represent ASG at the April 2 Hearing. See E-mail from Judy Liu to Heath Rosenblat, dated March 31, 2014, attached hereto as Exhibit C. 3. ASG has since determined that Mr. Ezra Sultan will attend the April 2 Hearing on ASG s behalf. Indeed, Mr. Sultan, an Executive Vice President of ASG, has decision-making authority and possesses extensive knowledge about not only the Secaucus {BAY02476390v1} 2
Case 11-13511-KJC Doc 2904 Filed 04/01/14 Page 3 of 5 ground lease, but also the circumstances surrounding ASG s formulation of its offer one that nets the Reorganized Debtors creditors and shareholders materially more value than anything 99 Hudson and its affiliates have thus far put on the table. 4. Apparently unsatisfied with the answer it received from ASG s counsel yesterday morning, counsel to 99 Hudson did not attempt to contact the undersigned attorneys or even reply with a simple follow-up email. Instead, several hours later in the day, counsel to 99 Hudson proceeded to file on this Court s docket a copy of the Subpoena that purports to require Mr. Gindi to appear at the April 2 Hearing, along with a Notice of Issuance for the Subpoena. 2 The Subpoena Contains Numerous Procedural Defects That Render It Ineffective 5. Fed. R. Civ. P. 45(c)(1)(A) provides a subpoena may command a person to attend a trial or hearing only within 100 miles of where the person resides, is employed, or regularly transacts business in person. Fed. R. Civ. P. 45(c)(1)(A); see also Fed. R. Bank. P. 9016. 6. Mr. Gindi resides in Brooklyn, New York. He is employed in New York City. He does not regularly transact business in Delaware. Notably, at least 122 miles separate New York City and the Bankruptcy Court well beyond the 100 mile geographical limit set forth in Fed. R. Civ. P. 45(c)(1)(A). See Google Maps Result Distance between New York City and Wilmington, attached hereto as Exhibit D. 2 Upon electronic receipt of the Subpoena, the undersigned attorneys promptly telephoned and left three voice messages with Mr. Todd Schiltz, Mr. Heath Rosenblat and Ms. Kristen Going to no avail. Mr. Schiltz finally returned the call this morning, but declined to withdraw the Subpoena after the conversation pending further internal discussions. Thereafter, he sent an email to the undersigned attorneys with numerous questions to be answered to allow him to evaluate ASG s request. In view of the impending April 2 Hearing, and uncertainty as to whether the Subpoena would be withdrawn, ASG was constrained to file this protective motion. {BAY02476390v1} 3
Case 11-13511-KJC Doc 2904 Filed 04/01/14 Page 4 of 5 7. Moreover, although 99 Hudson purports to have served the Subpoena Via First-Class Mail, Postage Pre-Paid (Subpoena at 2), Fed. R. Civ. P. 45(b)(1) clearly requires delivering a copy to the named person... Fed. R. Civ. P. 45(b)(1). 99 Hudson cannot dispute the Subpoena has not been personally served on Mr. Gindi. Even with proper service, however, the Subpoena would still be ineffective under the Federal Rules for failure to comply with the 100 mile limitation. See Fed. R. Civ. P. 45(c)(1)(A). 8. Although the Subpoena attempts to command Mr. Gindi s attendance at the April 2 Hearing, Fed. R. Civ. P. 45(b)(1) requires 99 Hudson [tender] the fees for 1 day s attendance and the mileage allowed by law. Fed. R. Civ. P. 45(b)(1). 99 Hudson has done neither of those things. The Subpoena also fails to show the names of the persons served and does not include a certification by the server. Fed. R. Civ. P. 45(b)(4); See Subpoena at 2. 99 Hudson simply left those boxes blank. Finally, while the Subpoena contains the signature of an Issuing Officer, it provides an unidentified conformed signature for the server without any address or date. Id. 3 9. If 99 Hudson insists on pursuing the Subpoena, ASG reserves all rights to seek an appropriate sanction for the imposition of undue burden and expense, including, but not limited to, lost earnings and reasonable attorneys fees, in accordance with Fed. R. Civ. P. 45(d)(1). 10. For these and all the aforementioned reasons, the Court should quash the Subpoena in the event 99 Hudson properly serves it on Mr. Gindi. 3 Given Mr. Sultan s attendance at the April 2 Hearing will not prejudice 99 Hudson in any way, 99 Hudson s unsubstantiated insistence on Mr. Gindi s attendance has only one plausible basis harassment. {BAY02476390v1} 4
Case 11-13511-KJC Doc 2904 Filed 04/01/14 Page 5 of 5 WHEREFORE ASG requests an order (i) quashing the Subpoena and (ii) granting ASG such other and further relief as is just. Dated April 1, 2014 Wilmington, Delaware BAYARD, P.A. /s/ Justin R. Alberto Neil B. Glassman (No. 2087) Justin R. Alberto (No. 5126) 222 Delaware Avenue, Suite 900 P.O. Box 25130 Wilmington, Delaware 19899 Telephone 302.655.5000 Facsimile 302.658.6395 -and- Martin J. Bienenstock Judy G.Z. Liu Vincent Indelicato PROSKAUER ROSE LLP Eleven Times Square New York, New York 10036 Telephone 212.969.3000 Facsimile 212.969.2900 Co-Attorneys for ASG Equities Secaucus LLC {BAY02476390v1} 5
Case 11-13511-KJC Doc 2904-1 Filed 04/01/14 Page 1 of 3 Exhibit A Proposed Order {BAY02476390v1}
Case 11-13511-KJC Doc 2904-1 Filed 04/01/14 Page 2 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ---------------------------------------------------------------- x In re FILENE S BASEMENT, LLC, et al., Reorganized Debtors. 1 ---------------------------------------------------------------- x Chapter 11 Case No. 11-13511 (KJC) Jointly Administered Re Docket No. ORDER QUASHING SUBPOENA AD TESTIFICANDUM Upon consideration of the Notice of Issuance of Subpoena ad Testificandum, dated March 31, 2014 [D.I. 2892] and the Subpoena, 2 dated March 31, 2014 [D.I. 2892-1], filed by 99 Hudson, LLC, and the Motion, dated March 31, 2014, of ASG Equities Secaucus LLC for an order pursuant to Rule 45(d)(3) of the Federal Rules of Civil Procedure and Rule 9016 of the Federal Rules of Bankruptcy Procedure quashing the Subpoena; and it appearing that this Court has subject matter jurisdiction to consider the Motion pursuant to 28 U.S.C. 1334; and consideration of the Motion being a core proceeding pursuant to 28 U.S.C. 157(b); and it appearing that due notice of the Motion has been given, and that no other or further notice need be given; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED that the Motion is granted as may be modified herein; and it is further ORDERED that the Subpoena is quashed pursuant to Fed. R. Civ. P. 45(d)(3); and it is further 1 The Reorganized Debtors and the last four digits of their respective taxpayer identification numbers are as follows Filene s Basement, LLC (8277), Syms Corp. (5228), Syms Clothing, Inc. (3869), and Syms Advertising Inc. (5234). The Reorganized Debtors address is One Syms Way, Secaucus, New Jersey 07094. 2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Motion. {BAY02476390v1}
Case 11-13511-KJC Doc 2904-1 Filed 04/01/14 Page 3 of 3 ORDERED that the terms and conditions of this Order shall be immediately effective and enforceable upon its entry; and it is further ORDERED that this Court shall retain jurisdiction with respect to all matters arising from or relating to the interpretation or implementation of this Order. Dated, 2014 Wilmington, Delaware THE HONORABLE KEVIN J. CAREY UNITED STATES BANKRUPTCY JUDGE {BAY02476390v1} 2
Case 11-13511-KJC Doc 2904-2 Filed 04/01/14 Page 1 of 2 Exhibit B E-mail from Heath Rosenblat to Judy Liu {BAY02476390v1}
Case 11-13511-KJC Doc 2904-2 Filed 04/01/14 Page 2 of 2 From "Rosenblat, Heath D." <Heath.Rosenblat@dbr.com> DateMarch 31, 2014 at 95950 AM EDT T o"jliu@proskauer.com" <jliu@proskauer.com> Cc"Going, Kristin K." <Kristin.Going@dbr.com> S ubjectinrefilene'sbasem ent,l L C,etal.-CaseN o.11-13511 (KJC)(DistrictofDelaw are) Ms. Liu, Please confirm by reply email that Ray Gindi will be present at the April 2, 2014 Hearing. Regards, Heath Heath D. Rosenblat Drinker Biddle & Reath LLP 1177 Avenue of the Americas, 41st Floor New York, NY 10036-2714 (212) 248-3248 office (212) 248-3141 fax Heath.Rosenblat@dbr.com www.drinkerbiddle.com
Case 11-13511-KJC Doc 2904-3 Filed 04/01/14 Page 1 of 2 Exhibit C E-mail from Judy Liu to Heath Rosenblat {BAY02476390v1}
Case 11-13511-KJC Doc 2904-3 Filed 04/01/14 Page 2 of 2 From Liu,Jud y G.Z. Sent M on d ay,m arch 31,20141042 A M To Rosen blat,h eath D. Cc Goin g,kristin K. Subject ReIn re Filen e'sb asem en t,llc,etal.-c ase No.11-13511 (KJC )(Districtof Delaw are) Incom pliancew ithjudgecarey'sdirection,w eintendtohaveanappropriatepersonrepresentingas G inattendanceattheapril2 hearing. S entfrom m y ip hone 917-608-9511
Case 11-13511-KJC Doc 2904-4 Filed 04/01/14 Page 1 of 2 Exhibit D Google Maps Result Distance between New York City and Wilmington {BAY02476390v1}
Case 11-13511-KJC Doc 2904-4 Filed 04/01/14 Page 2 of 2 Distance between New York City and Wilmington