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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re:
Philadelphia Newspapers, LLC, et al.,1
Debtors.
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Chapter 11
Case No. 09-11204 (SR)
Jointly Administered
DEBTORS’ AND NON-PARTY BRIAN P. TIERNEY’S
JOINT MOTION TO QUASH SUBPOENA AD TESTIFICANDUM
Pursuant to Fed. Bankr. R. 9016, Debtors and Debtors in Possession PMH Acquisition,
LLC, Broad Street Video, LLC, Philadelphia Newspapers, LLC (“PNL”), Philadelphia Direct,
LLC, Philly Online, LLC, PMH Holdings, LLC, Broad Street Publishing, LLC, Philadelphia
Media, LLC, and Philadelphia Media Holdings, LLC (collectively, “Debtors”) and non-party
Brian P. Tierney (together with Debtors, “Movants”) respectfully move this Court for an Order
quashing a subpoena ad testificandum that seeks to compel Mr. Tierney to appear and testify at
the confirmation hearing scheduled for June 24, 2010 (and June 25 and 28, 2010, if necessary).
A copy of the subpoena to Mr. Tierney is attached as Exhibit A hereto.
In support of this Motion, Movants state as follows:
BACKGROUND
1.
The confirmation hearing in these cases is currently scheduled for June 24, 2010,
with additional dates of June 25, 2010 and June 28, 2010, if necessary.
2.
In preparation for the confirmation hearing, on June 4, 2010, Obermayer,
Rebmann, Maxwell & Hippel, LLP, on behalf of its clients Vahan Gureghian, Danielle
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The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, are: Philadelphia Media Holdings, LLC (4680), PMH Acquisition, LLC (1299), Broad Street Video, LLC
(4665), Philadelphia Newspapers, LLC (3870), Philadelphia Direct, LLC (4439), Philly Online, LLC (5185), PMH
Holdings, LLC (1768), Broad Street Publishing, LLC (4574), and Philadelphia Media, LLC (0657).
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Gureghian and Charter School Management, Inc. (collectively, “the Gureghians”), served a
Notice of Rule 30(b)(6) Deposition seeking testimony from a representative of the Debtors
knowledgeable on the topics of Sections 10.01 and 10.02 of the Debtors’ Plan.
3.
The Gureghians are plaintiffs in a state court action brought against certain of the
Debtors, certain employees of the Debtors, and Brian Tierney.
4.
On June 16, 2010, the Debtors produced their general counsel, Scott Baker, for
deposition.
5.
Mr. Baker was a participant, along with Mr. Tierney, in the negotiations that
resulted in the settlement that was put on the record before the Court on May 12, 2010, which
resolved certain outstanding issues between the Debtors and the winning bidder at the auction,
PN Purchaser.
6.
Pursuant to that settlement, on May 21, 2010, Mr. Tierney resigned as Chief
Executive Officer of the Debtors.
7.
Joseph Bondi, the Debtors’ former financial advisor, has now assumed the role of
Chief Executive Officer for the Debtors and has day-to-day control over their operations.
8.
The Debtors intend to proffer the testimony of Mr. Bondi at the confirmation
hearing and will make him available for cross-examination on why the plan should be confirmed.
9.
Notwithstanding that Mr. Tierney is no longer the Debtors’ CEO and has no
greater knowledge regarding negotiation of the provisions in Sections 10.01 and 10.02 of the
Plan, on June 18, 2010, the Gureghians unsuccessfully attempted to serve Mr. Tierney with a
subpoena to testify at the confirmation hearing.
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The attempted service was made by handing a copy of the subpoena to Mr.
Tierney’s niece who was at Mr. Tierney’s residence while he was in Europe, traveling with his
family.
11.
Mr. Tierney is not scheduled to return from Europe until the early evening of June
28, 2010 – after the scheduled conclusion of the confirmation hearing.
THE SUBPOENA SHOULD BE QUASHED BECAUSE
IT WAS NOT PERSONALLY SERVED ON MR. TIERNEY.
12.
Fed. Bankr. R. 9016 makes Fed. R. Civ. P. 45 applicable to cases under the
Bankruptcy Code.
13.
Service of a subpoena under Rule 45 requires “delivery of a copy to the named
person ….” Fed. R. Civ. P. 45(b)(1). District courts within the Third Circuit Court of Appeals
apply the “majority rule” that requires personal service of a subpoena. See, e.g., Parker v. John
Does #1-200, Civ. A. No. 02-7215, 2002 WL 32107937 at *3 (E.D. Pa. Nov. 21, 2002) (holding,
in accordance with “a majority of courts,” that “Rule 45 requires personal service of
subpoenas”); Vitale v. Repetti, Civ. A. No. 05-5685, 2007 WL 1752040 at *1, 2 (D.N.J. June
18, 2007) (enforcing the personal service requirement of Rule 45).
14.
The Gureghians did not personally serve Mr. Tierney with a copy of their
subpoena as is required by Rule 45. Rather, they merely left the subpoena with Mr. Tierney’s
niece who was at his residence.
15.
Such attempted service does not comply with Rule 45 and, therefore, the
subpoena must be quashed.
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MR. TIERNEY’S TESTIMONY IS UNNECESSARY TO PLAN CONFIRMATION
ISSUES AND, THEREFORE, IT WOULD BE UNDULY BURDENSOME TO REQUIRE
HIM TO RETURN FROM EUROPE EARLY.
16.
The subpoena must also be quashed because it would subject Mr. Tierney to an
undue burden under Rule 45(c)(3)(iv).
17.
Requiring Mr. Tierney to testify at the confirmation hearing would be unduly
burdensome because he is, and will be during the dates of the confirmation hearing, traveling in
Europe with his family.
18.
Mr. Tierney is not scheduled to return from Europe until early evening, June 28,
2010. Requiring him to testify at the confirmation hearing would require that he return early and
would also disrupt his family’s vacation.
19.
Requiring Mr. Tierney’s return is especially unduly burdensome because he has
no unique factual knowledge regarding the issues involved in plan confirmation or the
Gureghians’ objection to the plan.
20.
Mr. Tierney is no longer an officer of the Debtors, such responsibilities having
been transferred to Mr. Bondi as of May 21, 2010. Prior to that time, Mr. Bondi was a financial
advisor to the Debtors and, as such, has first hand knowledge regarding significant aspects of the
Debtors’ Plan.
21.
The Debtors intend to proffer the testimony of Mr. Bondi and to make him
available for cross-examination at the confirmation hearing.
22.
Moreover, the Debtors have also made the Debtors’ general counsel, Scott Baker,
available for deposition on topics relating specifically to Sections 10.01 and 10.02 of the Plan,
the provisions on which the Gureghians’ objection is premised. Mr. Baker was involved in all of
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the negotiations with the Prepetition Secured Lenders and the Official Committee of Unsecured
Creditors regarding such provisions and testified at length regarding the same.
23.
In light of the Debtors’ intention to proffer the testimony of Mr. Bondi and their
making Mr. Baker available for deposition, there is simply no reason for testimony from Mr.
Tierney, especially since the Gureghians’ objection to Sections 10.01 and 10.02 are largely legal
issues, not factual issues.
24.
In light of these facts, it is apparent that the Gureghians’ subpoena to Mr. Tierney
is merely another attempt to harass him regarding the underlying lawsuit that they have brought
against him. The specific allegations of the suit, however, are not at all relevant to the issues
involved in the plan confirmation hearing.
25.
Accordingly, since there is no real need for Mr. Tierney’s testimony on plan
confirmation and because he is out of the country, this Court should quash the Gureghians'
subpoena.
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WHEREFORE, for all the foregoing reasons, Movants respectfully request that this
Court enter an Order in the form attached hereto and grant such other relief as the Court deems
just and appropriate.
Respectfully Submitted,
/s/ Lawrence G. McMichael
Lawrence G. McMichael
Christie Callahan Comerford
DILWORTH PAXSON LLP
1500 Market St., Suite 3500E
Philadelphia, PA 19102
(215) 575-7000 (telephone)
(215) 575-7200 (facsimile)
-andMark K. Thomas
Paul V. Possinger
PROSKAUER ROSE LLP
Three First National Plaza
70 West Madison, Suite 3800
Chicago, IL 60602-4342
(312) 962-3550 (telephone)
(312) 962-3551 (facsimile)
Dated: June 22, 2010
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Co-Counsel for Debtors and Debtors in Possession
and for Non-Party Brian Tierney
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Exhibit A Page 1 of 3
EXHIBIT A
[SUBPOENA]
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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re:
Philadelphia Newspapers, LLC, et al. , I
Debtors.
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)
)
)
)
)
)
Chapter 11
Case No. 09-11204 (SR)
Jointly Administered
ORDER GRANTING DEBTORS' AND NON-PARTY BRIAN P. TIERNEY'S
JOINT MOTION TO QUASH SUBPOENA AD TESTIFICANDUM
Upon consideration of the Debtors' and Non-Party Brian P. Tierney's Joint Motion to
Quash Subpoena Ad Testificandum (the "Motion") and the objections thereto, it is hereby:
ORDERED, that the Motion is GRANTED; and it is further
ORDERED, that this Court shall retain jurisdiction to hear and determine all matters
arising from the implementation of this Order.
Date: June __, 2010
Philadelphia, Pennsylvania
Stephen Raslavich
Chief United States Bankruptcy Judge
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification
number, are: Philadelphia Media Holdings, LLC (4680), PMH Acquisition, LLC (1299), Broad Street Video, LLC
(4665), Philadelphia Newspapers, LLC (3870), Philadelphia Direct, LLC (4439), Philly Online, LLC (5185), PMH
Holdings, LLC (1768), Broad Street Publishing, LLC (4574), and Philadelphia Media, LLC (0657).
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