FOR THE DISTRICT OF DELAWARE JMO WIND DOWN, INC., NON … · 1800, Wilmington, Delaware 19801 [Doc. 405]. A true and correct copy of the Notice of Deposition is attached hereto as

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

JMO WIND DOWN, INC.,

Debtor.

Chapter 11

Case No. 16-10682 (BLS)

Re: DI 408

NON-PARTY DANIEL MATTES' MOTION TO QUASH SUBPOENA OF EDUARDO SAVERIN

Daniel Mattes, a non-party to the above-referenced bankruptcy case ("Bankruptcy Case"),

through his undersigned counsel, hereby submits this motion (the "Motion") for entry of an order

quashing Creditor and Interested Party Eduardo Saverin's ("Saverin") Subpoena to Appear and

Testify at a Hearing or Trial in a Bankruptcy Case (Or Adversary Proceeding) (the "Subpoena")

and stating that he is not required to attend a deposition scheduled for October 14, 2016 at 10:00

A.M. pursuant to a Notice of Deposition ("Notice of Deposition") served by Saverin on October

12, 2016. In support of this Motion, Mr. Mattes respectfully states as follows:

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157 and

1334. Venue of the Debtor's Chapter 11 case in this district is proper pursuant to 28 U.S.C. §§

1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b).

2. The statutory predicates for the relief sought herein are Rules 26, 30 and 45 of the

Federal Rules of Civil Procedure ("Federal Rules"), Rules 7026, 7030, and 9016 of the Federal

Rules of Bankruptcy Procedure ("Bankruptcy Rules"), Rule 7030-1 of the Local Rules of the

United States Bankruptcy Court for the District of Delaware ("Local Bankruptcy Rules" or

"LBR"), and Section 105(a) of the Bankruptcy Code.

Case 16-10682-BLS Doc 426 Filed 10/13/16 Page 1 of 6

II. PROCEDURAL STATUS

3. On March 21, 2016 (the "Petition Date"), the Debtor filed a voluntary petition for

relief pursuant to Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for

the District of Delaware (the "Bankruptcy Court").

4. The Debtor continues to operate its business as debtor-in-possession pursuant to

Sections 1107(a) and 1108 of the Bankruptcy Code. The U.S. Trustee appointed a Committee of

Equity Security Holders ("Committee") in this case on April 15, 2016 [Doc. 132].

III. FACTUAL BACKGROUND

5. On September 1, 2016, Debtor JMO Wind Down, Inc. (the "Debtor") filed its

Amended Plan of Liquidation of JMO Wind Down, Inc. Pursuant to Chapter 11 of the

Bankruptcy Code [Doc. 345] (the "Plan"). On September 1, 2016, the Debtor also filed its

Disclosure Statement for the Amended Plan of Liquidation of JMO Wind Down, Inc. Pursuant to

Chapter 11 of the Bankruptcy Code [Doc. 347] (the "Disclosure Statement"). The hearing on the

confirmation of the Debtor's Plan and the approval of its Disclosure Statement is set for October

17, 2016 in the Bankruptcy Court. [Doc. 344].

6. On October 11, 2016, Ampalu Investment GmbH ("Ampalu") and Samirana

Investment Corp. ("Samirana") filed their Objection to Debtor's Amended Plan of Liquidation

and Disclosure Statement for the Amended Plan of Liquidation [Doc. 399] ("Objection"). Mr.

Mattes was not a party to the Objection, although he did file a Declaration in support of the

Objection. [Doc. 400].

7. On October 12, 2016, counsel for Saverin served Mr. Mattes with the Notice of

Deposition, seeking to compel Mr. Mattes to appear for a deposition on Friday, October 14, 2016

at 10:00 AM in the offices of Landis Rath & Cobb LLP, located at 919 Market Street, Suite


1800, Wilmington, Delaware 19801 [Doc. 405]. A true and correct copy of the Notice of

Deposition is attached hereto as Exhibit 1.

8. On October 11, 2016, counsel for Saverin also served Mr. Mattes with the

Subpoena, commanding him to appear at the hearing on the confirmation of the Debtor's Plan

and the approval of the Disclosure Statement on October 17, 2016 at 10:00 A.M. in the

Bankruptcy Court. A true and correct copy of the Subpoena is attached hereto as Exhibit 2.

9. On October 13, 2016, Connor Bifferato, counsel for Mr. Mattes, informed

Michelle Smith, counsel for Saverin, that Mr. Mattes lives in Austria and will be unable to

participate in a deposition on October 14th. A true and correct copy of Mr. Bifferato's October

13, 2016 email to Ms. Smith is attached hereto as Exhibit 3.

V. RELIEF REQUESTED

10. Mr. Mattes respectfully requests that this Court quash the Subpoena and instruct

Mr. Mattes that he is under no obligation to appear for a deposition pursuant to the Notice of

Deposition for two reasons. First, Mr. Mattes received less than seven days notice of the

deposition and therefore was not provided reasonable notice under the Local Bankruptcy Rules.

Second, Mr. Mattes is not a party to the Objection and therefore has not personally submitted

himself to the jurisdiction of the Bankruptcy Court. Because Mr. Mattes is a non-party and not a

citizen or resident of the United States, he cannot be served under Bankruptcy Rule 9016, which

incorporates Federal Rule of Civil Procedure 45. Rather, he must be served through letters

rogatory issued through formal diplomatic channels.

VI. BASIS FOR RELIEF

A. Saverin Failed to Provide Reasonable Notice of the Deposition Under the Local Rules


11. The Notice of Deposition is improper because it failed to provide Mr. Mattes with

reasonable notice. Under the Federal Rules of Civil Procedure, "[a] party who wants to depose a

person by oral questions must give reasonable written notice to every other party." FED. R. CIV.

P. 30(b)(1). Unless otherwise ordered by the Court, "'reasonable notice' for the taking of

depositions . . . shall not be less than seven (7) days." LBR 7030-1.

12. In the present case, Saverin served Mr. Mattes with the Notice of Deposition on

Wednesday, October 12, 2016 for a deposition on Friday October 14, 2016. Thus, Mr. Mattes

only received two days, or less than 48 hours, advanced notice of the deposition. Such notice is

unreasonable under any circumstance pursuant to the Local Bankruptcy Rules, however it is

particularly unreasonable because Mr. Mattes lives in Vienna, Austria and cannot easily travel

across the globe on two days notice to sit for a deposition in Wilmington, Delaware.

13. Because it is unreasonable to demand that Mr. Mattes travel from Vienna, Austria

to Delaware on less than 48 hours notice to appear at a deposition, the Court should quash the

subpoena and state that Mr. Mattes is under no legal obligation to appear at the deposition on

Friday, October 14, 2016.

B. The Notice of Deposition and the Subpoena Were Not Properly Served on Mr. Mattes

14. The Notice of Deposition should be disregarded and the Subpoena should be

quashed for the additional reason that they were not properly served on Mr. Mattes. Mr. Mattes

is a resident of Austria and a non-party to the Bankruptcy Case. Although Mr. Mattes submitted

a declaration in support of the Objection filed by Ampalu and Samirana, he has not personally

objected to either the Plan or the Disclosure Statement. As such, service of a subpoena on Mr.

Mattes under Bankruptcy Rule 9016 is improper.


15. Bankruptcy Rule 9016, which incorporates Federal Rule 45, governs service of a

subpoena in a bankruptcy case. However, Bankruptcy Rule 9016 only pertains to individuals

located within the United States or "to a United States national or resident who is in a foreign

country." FED. R. CIV. P. 45(b)(3). See also 28 U.S.C. § 1783(a) ("A court of the United States

may order the issuance of a subpoena requiring the appearance as a witness before it, or before a

person or body designated by it, of a national or resident of the United States who is in a foreign

country.").

16. For non-United States citizens residing in foreign countries, such as Mr. Mattes,

the service provisions of Federal Rule 45 and Bankruptcy Rule 9016 are inapplicable. Rather,

service is dictated by any agreements in place between the United States and the relevant

country. In this case, Austria is not a party to any international service of process treaties, so Mr.

Mattes can only be served by making a request through letters rogatory using formal diplomatic

channels. See FED. R. BANKR. P. 7004(f)(2)(b); 22 C.F.R § 92.54 ("In its broader sense in

international practice, the term letters rogatory denotes a formal request from a court in which an

action is pending, to a foreign court to perform some judicial act. Examples are . . . the serving

of a summons, subpoena, or other legal notice.").

17. Because Saverin has neither sought nor obtained letters rogatory, service of both

the Notice of Deposition and the Subpoena on Mr. Mattes were improper.

VII. CONCLUSION

18. For the reasons set forth herein, Mr. Mattes respectfully requests that the Court

enter an order, substantially in the form submitted herewith, quashing the Subpoena and ordering

that Daniel Mattes is under no legal obligation to appear for the deposition set on October 14,


2016 at 10:00 A.M. in Wilmington, Delaware pursuant to the Notice of Deposition, and granting

such other and further relief as may be just and equitable.

Dated: October 13, 2016. THE BIFFERATO FIRM, P.A.

/s/ Thomas F. Driscoll III Ian Connor Bifferato (DE Bar No. 3272) Thomas F. Driscoll III (DE Bar No. 4703 1000 N. Orange Street 4th Floor, The Mill Wilmington, Delaware 19801 Telephone: (302) 225-7600 Facsimile: (302) 792-7470 [email protected] [email protected] -and- Charles E. Dorkey III Gary W. Marsh Bryan E. Bates Matthew M. Weiss DENTONS US LLP 1221 Avenue of the Americas New York, New York 10020 Telephone: (212) 768-6700 Facsimile: (212) 768-6800 [email protected] [email protected] [email protected] [email protected] Attorneys for Daniel Mattes


Case 16-10682-BLS Doc 426-1 Filed 10/13/16 Page 1 of 10










PROPOSED ORDER


IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re:

JMO WIND DOWN, INC.,

Debtor.

Chapter 11

Case No. 16-10682 (BLS)

ORDER QUASHING SUBPOENA OF EDUARDO SAVERIN

Upon consideration of Non-Party Daniel Mattes' Motion to Quash Subpoena of Eduardo

Saverin (the "Motion");1 and upon consideration of the proceedings before the Court related to

the Motion; and the Court having found that (i) the Court has jurisdiction over this matter

pursuant to 28 U.S.C. §§ 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. §

157(b); (iii) venue is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409; (iv) the

Motion is in full compliance with all applicable provisions of the Bankruptcy Code, Bankruptcy

Rules, Local Bankruptcy Rules of the District of Delaware, and orders and procedures of this

Court; (v) proper and adequate notice of the Motion, the deadline to file any objections to the

Motion, and any hearing thereon was given, and no other or further notice is necessary; and (vi)

the legal and factual bases set forth in the Motion establish just cause for the relief granted

herein; and after due deliberation and sufficient cause appearing therefor;

IT IS HEREBY ORDERED THAT:

1. The Motion is granted in its entirety.

2. Creditor and Interested Party Eduardo Saverin's ("Saverin") Subpoena is hereby

quashed.

1 Capitalized terms used herein but not otherwise defined shall have the meaning ascribed to them in the Motion.


- 2 -

MWEISS\101710842\V-2

3. Daniel Mattes is under no legal obligation to appear for the deposition set on

October 14, 2016 at 10:00 A.M. in Wilmington, Delaware pursuant to the Notice of Deposition.

4. The terms and conditions of this Order shall be immediately effective and

enforceable upon its entry.

5. This Court shall retain jurisdiction to resolve all matters arising out of or related

to the Motion or this Order.

SIGNED this ___ day of October, 2016.

THE HONORABLE BRENDAN LINEHAN SHANNON

UNITED STATES BANKRUPTCY JUDGE


CERTIFICATE OF SERVICE

I, Thomas F. Driscoll III, hereby certify that on this 13th day of October, 2016, a copy of

the foregoing Non-Party Daniel Mattes' Motion to Quash Subpoena of Eduardo Saverin was

caused to be served on the attached service list via CM/ECF and U.S. Mail.

/s/ Thomas F. Driscoll III

Thomas F. Driscoll III (#4703)



ADAM LANDIS, ESQ. KERRI MUMFORD, ESQ. JAMES GREEN, ESQ. LANDIS RATH & COBB LLP 919 MARKET STREET, SUITE 1800 P.O. BOX 2087 WILMINGTON DE 19801

KATE ROGGIO BUCK, ESQ. MCCARTER & ENGLISH, LLP RENAISSANCE CENTRE 405 N. KING STREET, 8TH FLOOR WILMINGTON, DE 19801

WARD W. BENSON, ESQ. TRIAL ATTORNEY, TAX DIVISION U.S. DEPARTMENT OF JUSTICE P.O. BOX 227, BEN FRANKLIN STATION WASHINGTON, DC 20044

JAMES COOK C/O JMO WIND DOWN, INC. NATIONAL CORPORATE RESEARCH, LTD. 850 NEW BURTON ROAD, SUITE 201 DOVER, DE 19904

PENG-TSIN ONG C/O JMO WIND DOWN, INC. NATIONAL CORPORATE RESEARCH, LTD. 850 NEW BURTON ROAD, SUITE 201 DOVER, DE 19904

SCOTT WEISS, C/O JMO WIND DOWN, INC. NATIONAL CORPORATE RESEARCH, LTD. 850 NEW BURTON ROAD, SUITE 201 DOVER, DE 19904

STEPHEN STUUT C/O JMO WIND DOWN, INC. NATIONAL CORPORATE RESEARCH, LTD. 850 NEW BURTON ROAD, SUITE 201 DOVER, DE 19904


Documents

FOR THE DISTRICT OF DELAWARE JMO WIND DOWN, INC., NON … · 1800, Wilmington, Delaware 19801 [Doc. 405]. A true and correct copy of the Notice of Deposition is attached hereto as