BURTON R. LIFLAND, Bankruptcy Judge.
Before the Court are four motions (the "Motions") of Martin M. Surabian, Richard Surabian, and Steven Surabian (the "Surabians"), which they have combined and styled with questionable interrelatedness, to: (I) Vacate Order and Judgment of Trustee's Third Omnibus Motion to Expunge Claims and Objections of Claimants that Did Not Invest with BLMIS or in Entities that Invested in BLMIS Regarding the Surabians' Claims Mentioned in Trustee's Exhibit A (the "Vacate Motion") (Dkt. No. 5206); (II) File Late Opposition to Trustee's Third Omnibus Motion to Expunge Claime [sic] and Objections of Claimants that Did Not Invest with BLMIS or in Entities that Invested in BLMIS (the "Late Opposition Motion") (Dkt. No. 5186); (III) Subpoena Bernard L. Madoff (the "Madoff Subpoena Motion") (Dkt. No. 5188); and (IV) Subpoena the Books and Records of BLMIS and Bernard L. Madoff and to Subpoena the Records of SIPC and the Trustee Concerning the Customers and Payments to Customers and How They Were Determined to be Customers of BLMIS (the "Records Subpoena Motion") (Dkt. No. 5290).
The Surabians are familiar parties in this Court. Indeed, they have injected themselves into the Madoff proceeding numerous times, filing many frivolous pleadings,
To date, there is absolutely no probative evidence emerging from BLMIS's books and records that the Surabians ever invested with Madoff, nor have the Surabians themselves ever offered any documentation evidencing their alleged customer status, despite numerous opportunities to do so.
Although the Court sympathizes with any party's status as a pro se litigant, it is unwilling to waste further time and resources where, over a substantial period of time and numerous opportunities given, the Surabians have failed to support their bare allegations with even a shred of documentary evidence.
SIPA commenced the instant liquidation proceedings after it was revealed, in December of 2008, that Madoff was operating a Ponzi scheme through his investment advisory company, Bernard L. Madoff Investment Securities ("BLMIS"). Irving Picard was subsequently appointed as the trustee (the "Trustee") for BLMIS and, in that capacity, has received over 16,500 alleged customer claims, including eight filed
On March 16, 2012, the Trustee filed a motion with the Court to expunge all claims and objections filed by or on behalf of claimants that did not invest with BLMIS or claimants that invested in entities unrelated to BLMIS (the "Expungement Motion") (Dkt. No. 4732). This motion sought to expunge the Surabians' claims, among others. See id. at Ex. A. The Trustee sent to the Surabians, via U.S. Mail, notice of hearing for the Expungement Motion (the "Expungement Hearing"), scheduled for April 18, 2012. See Affidavit of Service (Dkt. No. 4733). Subsequently, the hearing was adjourned one day, and the Trustee served on the Surabians the notice of the adjournment of the Expungement Hearing. See Amended Notice of Adjournment of Hearing (Dkt. No. 4771); Affidavit of Service (Dkt. No. 4772). In addition, on April 17, 2012, the Trustee alleges, and the Surabians do not deny, that one of the Trustee's legal assistants, Oleg Bitman, called and spoke with Steven Surabian at 6:10 p.m. to inform him of the Expungement Hearing's adjournment to April 19, 2012. See Vanderwal Decl., Ex. E. The Surabians did not object to the Expungement Motion, nor did they attend the hearing. The Court granted the Expungement Motion and entered an order (the "Expungement Order") (Dkt. No. 4779) expunging, among others, the Surabians' claims and objection with prejudice pursuant to section 78fff-2(b)(2) of SIPA.
On August 23, 2012, the Surabians filed a motion to remove Picard as Trustee (the "Removal Motion") (Dkt. No. 5003), which is currently on appeal before Judge Koeltl in the district court, In re Bernard L. Madoff, 13-CV-00935 (S.D.N.Y.2012). On September 4, 2012, the Trustee objected to the Surabians' Removal Motion, arguing that the Surabians lacked standing as a result of the Expungement Order. See Trustee's Objection to Motion to Remove Irving H. Picard as Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff (Dkt. No. 5019), ¶ 6. On September 12, 2012, the Surabians, in their reply, claimed that they never received notice of either the Expungement Motion or Order. See Reply to Trustee's Objection to Motion to Remove Irving H. Picard as Trustee Substantially Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff [hereinafter "Removal Motion Reply"] (Dkt. No. 5028), ¶ 4. At a hearing held on November 15, 2012, this Court denied the Removal Motion, finding that there was no cause shown indicating the Trustee's incompetence or prejudice. See Removal Motion Transcript (Dkt. No. 5115), 15:11-14; Order Denying Motion to Remove Irving H. Picard as Trustee Substantially Consolidated
On January 2, 2013, the Surabians filed the Late Opposition Motion, as well as the Madoff Subpoena Motion. Then, on January 22, 2013, the Surabians filed the Vacate Motion. Finally, on March 22, 2013, the Surabians filed the Records Subpoena motion. A hearing was held on these four motions on April 25, 2013.
In their Motion to Vacate and Late Opposition Motion, the Surabians request that this Court vacate its Expungement Order and permit the Surabians to file a late opposition to the Trustee's Expungement Motion pursuant to Rules 60(b)(9) and 60(b)(11). This Court treats these motions as seeking reconsideration of the Expungement Order under Rule 60(b)(1), because Rules 60(b)(9) and 60(b)(11) do not exist, and the movants' status as pro se litigants permits the Court to construe their pleadings as raising "the strongest arguments that they suggest." See In re Enron Corp., 352 B.R. 363, 366 (Bankr. S.D.N.Y.2006).
Motions to reconsider are reviewed in accordance with Rule 60(b), made applicable to this proceeding by Federal Rule of Bankruptcy Procedure ("Bankruptcy Rule") 9024. See In re FairPoint Commc'ns, Inc., 462 B.R. 75, 79 (Bankr. S.D.N.Y.2012). Rule 60(b) motions are "generally not favored" and are "properly granted only upon a showing of exceptional circumstances." United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir.2001); In re Journal Register Co., No. 09-10769, 2010 WL 5376278, at *2 (Bankr. S.D.N.Y. Dec. 23, 2010).
Rule 60(b)(1) provides that a court may relieve a party from an order based on "mistake, inadvertence, surprise, or excusable neglect." Although the Bankruptcy Code does not define "excusable neglect," the Second Circuit in American Alliance Insurance Co. v. Eagle Insurance Co. developed a three factor test to determine whether excusable neglect exists under Rule 60(b)(1).
To find willfulness, the Court must find that the movant's failure to act was not a result of negligence or carelessness. See American Alliance, 92 F.3d at 59-60; In re FairPoint Commc'ns, 462 B.R. at 80. Indeed, the willfulness standard necessitates a finding akin to the movant's "cognitive decision to allow a hearing on its Claim to proceed and the Order to be entered without its response," although the failure to respond need not be in bad faith. In re Enron, Inc., 325 B.R. 114, 119 (Bankr.S.D.N.Y.2005). The Surabians claim that they did not act willfully by failing to object to the Expungement Motion or attend the Expungement Hearing because they did not receive the Expungement Motion or Order until December 22, 2012, eight months after the Expungement Order was entered by this Court.
The evidence, however, points to the Surabians' willful decision to abstain from participating in the adjudication of the Expungement Motion. The Surabians concede that they received notice of the Expungement Hearing to be held on April 19, 2012. In particular, the Surabians do not contest that a legal assistant from the Trustee's office called and informed Steven Surabian directly that the Expungement Hearing was to take place on April 19, 2012, having been adjourned from the day before, and that Mr. Surabian replied that he would likely not attend the hearing. Although the Surabians now claim that they were unaware at that time the Expungement Motion targeted them, they chose not to follow up, at the least, on Mr. Bitman's phone call. Cf. In re Bernard L. Madoff, No. 12-CV-7999 (S.D.N.Y. Jan. 25, 2013) (Dkt. No. 15), p. 3 (stating that the Surabians, even though they are proceeding pro se, "are charged with reviewing the docket and understanding the Federal Rules of Bankruptcy Procedure"). For this reason, the Court finds that the Surabians' failure to participate in the adjudication of the Expungement Motion was willful.
Moreover, although the Surabians argue that they did not receive the Expungement Motion or Order until December of 2012, the Surabians indisputably received notice of these pleadings in connection with their Removal Motion. Indeed, the Surabians' reply filed in September of 2012 (three months before the alleged December enlightenment) reflects their awareness of the Expungement Order. See Removal Motion Reply, ¶ 4. Still, it was not until more than three months later, in January of 2013, that the Surabians filed the instant motions. When parties seek reconsideration of an order, they "should file a motion as soon as they discover that grounds may exist to warrant reconsideration." In re Barquet Group, 477 B.R. at 463. A delay of at least three months in filing is inexcusable, see id. (finding that a delay of over two months, "while likely not the result of bad faith, should have been minimized"), and illustrates an "indifference to bankruptcy procedures," In re JWP Info. Servs., 231 B.R. at 213.
Next, the American Alliance test inquires whether the movant has a legally supportable or meritorious defense. See
The Court finds that the Surabians do not have a meritorious defense. As a preliminary matter, SIPA section 78fff-2(b) requires that the obligations of the debtor be demonstrated by an examination of its books and records or be "otherwise established to the satisfaction of the trustee." Moreover, SIPA customers have the burden to demonstrate their customer status. See Mishkin v. Siclari (In re Adler, Coleman Clearing Corp.), 277 B.R. 520, 557 (Bankr.S.D.N.Y.2002) ("[I]t is well-established in the Second Circuit that a claimant bears the burden of proving that he or she is a `customer' under SIPA."). The Surabians have not established that they can meet this burden. After a diligent review of BLMIS's books and records,
The Surabians argue that they have a meritorious defense because they "have corroborating affidavits that they opened accounts with Madoff directly," see Surabian Reply, p. 3. Yet, the affidavits were not attached to their motion, and were only received by the Court the week before the hearing. See Response to Trustee's Request for Documents (Dkt. No. 5324). These affidavits are nothing more than self-serving reiterations of their prior arguments to the Court and constitute the only "evidence" submitted by the Surabians to support their claims. Indeed, in the three years since the their claims were denied, the Surabians have been unable to produce account numbers, account statements, cancelled checks, tax returns showing dividends, or any other documents that evidence their self-proclaimed multi-million dollar investments.
Next, the Surabians assert that they have a defense because "Madoff's testimony will support the Surabians [sic] Claims," see Vacate Motion, ¶ 11. This desperate attempt to use Madoff, a convicted fraudster serving a 150 year prison sentence, to support their claims is nevertheless insufficient. Madoff's testimony, which would likely raise several credibility concerns, is incapable of satisfying either the Trustee or this Court that the Surabians were indeed investors of BLMIS, when his purported testimony has not been otherwise substantiated by documentary evidence of any kind. See SIPC v. Cont'l Capital Inv. Servs., Inc. (In re Cont'l Capital Inv. Servs., Inc.), No. 03-3370, 2008 WL 4533665, at *4 (Bankr. N.D.Ohio Oct. 1, 2008) (holding no issue of fact existed surrounding an alleged claimant's customer status where the claimant merely contended that the debtor made representations to him that an account was established and maintained in the claimant's name, but failed to provide any corroborating evidence).
In conclusion, the Surabians have offered nothing that constitutes a meritorious defense.
The final American Alliance factor requires the Court to analyze the prejudice the debtor and the bankruptcy estate would suffer if the Surabians' motions were granted. See In re FairPoint Commc'ns, 462 B.R. at 82.
The Surabians allege that there is no prejudice to the Trustee because they "are not asking for another bite [of the apple], [as] they were never even shown the apple prior to late December 2012." See Surabian Reply, p. 5. However, the Surabians' argument is disingenuous because the Court has found that they had notice of the Expungement Hearing, prior to December of 2012, as the Trustee's office called and spoke with Steven Surabian in April of 2012 and the Surabians referenced the Expungement Order in one of their pleadings in September of 2012.
Instead, the Court finds reconsidering the Expungement Motion would prejudice the BLMIS estate. Indeed, the Trustee's responsibility to efficiently administer a claims process in a large case such as this necessitates that the Trustee not be required to re-litigate motions that lack the practical possibility of a different outcome. Moreover, courts must be mindful that excusing a claimant for failure to properly respond to notice could result in "ramifications to the efficiency and finality of the claims adjudication process." In re FairPoint Commc'ns, 462 B.R. at 82. In assessing the extent of these ramifications and whether they constitute a prejudice to the non-moving party, courts assess whether the moving party undertook measures to lessen the effects of its neglect. See, e.g., id.; In re Enron, 325 B.R. at 120. Here, the Surabians did not undertake such measures. Instead, they not only failed to respond to documents served upon them, but also chose not to investigate the applicability of a hearing with respect to their own claims, despite being called directly by the Trustee's office and being appraised of the Expungement Order in September of 2012. Furthermore, there was a delay of more than nine months from when the Surabians received actual notice of the Expungement Hearing and when they filed the instant motions. See In re JWP Info. Servs., 231 B.R. at 212 (finding a delay that was willful and knowing was prejudicial to the debtor's estate and its creditors).
The next motion, the Madoff Subpoena Motion, seeks to subpoena Madoff to testify on behalf of the Surabians. As a preliminary matter, the Trustee and SIPC each point out in their responses that a subpoena is ineffective to compel a federal prisoner to testify and must be brought in the form of a writ of habeas corpus ad testificandum. See United States v. Gotti, 784 F.Supp. 1011, 1012 (E.D.N.Y.1992). In turn, in their reply papers, the Surabians acknowledge that the Madoff Subpoena Motion "can and should be viewed" as a request to issue a writ of habeas corpus ad testificandum. See Surabian Reply, p. 8. Accordingly, the Court will treat this motion as such.
Turning to the merits, pursuant to sections 2241(c)(5) and 1651(a) of Title 28 of the United States Code, a federal court is permitted to issue a writ of habeas corpus ad testificandum when necessary to direct the custodian of a federal prisoner to produce the prisoner for an appearance in court. Atkins v. City of New York, 856 F.Supp. 755, 757 (E.D.N.Y.1994). Whether a writ of habeas corpus ad testificandum is necessary is "committed to the sound discretion" of the court, taking into account such factors as: "(i) whether the prisoner's presence will substantially further the resolution of the case: (ii) the security risks presented by the prisoner's transportation and safekeeping; and (iii) whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted." Id. Here, because Madoff was sentenced to 150 years in prison, forgoing the possibility of a stay, the analysis will focus on whether Madoff's testimony will substantially further the case and the security risks involved if said testimony were permitted.
The Court finds that Madoff's testimony will not substantially further the Surabians' case. First, the Surabians' contention that Madoff will testify that they invested in BLMIS directly with him is pure speculation, as the Surabians have offered nothing more than their conclusory statements to support this allegation. Second, even if Madoff testifies in accordance with the Surabians' allegations, his testimony by itself is unlikely to establish that the Surabians are customers of BLMIS, as (i) the Surabians have failed to offer any corroborating evidence that would further Madoff's testimony and (ii) given that he is a convicted fraudster, Madoff's testimony likely lacks credibility, see Fed.R.Evid. 609(a)(2) (requiring the admission of evidence of a criminal conviction where the elements of the crime committed require proving or the witness admitting to a dishonest act or false statement in order to impeach the witness).
Furthermore, there are significant cost and security considerations associated with allowing Madoff to testify in this Court. `Whenever a prisoner is brought to testify, it "entails costs and even danger." Thomas v. O'Brien, No. 5:08-CV-0318, 2011 WL 5452012, at *5 (N.D.N.Y. Nov. 8, 2011) (quoting Barnes v. Black, 544 F.3d 807, 810 (7th Cir.2008)). Here, there would be substantial costs associated with transporting and housing Madoff. See Thomas, 2011 WL 5452012, at *5 (stating that costs of transporting and housing a prisoner is "not insignificant, particularly given ever-shrinking budgets for governmental agencies"). Security would also be necessary
In conclusion, the little, if any, probative value of Madoff's testimony, in conjunction with the cost and security concerns associated with transporting Madoff to this Court, militate in favor of denial of a writ of habeas corpus ad testificandum. Moreover, the diminutive value of Madoff's testimony in the instant case does not even justify any less costly means of obtaining said testimony, such as a deposition or video conference.
The Surabians' final motion, the Records Subpoena Motion, seeks to subpoena the books and records of BLMIS, as well as the records of the Trustee and SIPC. The Surabians first seek the books and records of BLMIS in order to "see were [sic] their assets may have gone and to show this Court that they did invest with BLMIS...." Records Subpoena Motion, ¶ 7. The Surabians base their request on the fact that "[i]t is the Trustee that claims the records do not show any evidence of the Surabians being customers," and that they "do not believe the Trustee or SIPC or that the Trustee and SIPC looked diligently." Surabian Reply to Records Subpoena Motion [hereinafter "Records Reply"] (Dkt. No. 5308), p. 10. Additionally, the Surabians seek the records of the Trustee and SIPC to ascertain which customers have allowed claims and how the claim determinations were made. They base this request on their belief that "they meet most of all the standards the other customers meet" and the "Trustee did not act justly and did not have the customers of BLMIS best interest [sic] involved when the Trustee determined the Surabians were not Customers." Id. at 11.
As is true with any discovery sought, the issuance of a subpoena under Rule 45 is analyzed under the requirements of Rule 26(b), made applicable herein by Bankruptcy Rules 9016 and 7026, respectively. See During v. City Univ. of New York, No. 05-CV-6992, 2006 WL 2192843, at *2 (S.D.N.Y. Aug. 1, 2006); Zinke v. United States Dep't of Treasury (In re Zinke), 157 B.R. 528, 530 n. 2 (Bankr.E.D.N.Y.1993) ("Federal Rule 26, made applicable herein by Bankruptcy Rule 7026, governs the issuance of subpoenas").
As a preliminary matter, Rule 26(b)(1) requires that the materials sought in a subpoena be relevant. See Fed. R.Civ.P. 26(b)(1). Specifically, the Rule provides:
Even where the subpoena seeks relevant material, Rule 26(b)(2) requires the court to limit the scope of discovery sought where it is unduly burdensome. See Fed. R.Civ.P. 26(b)(2)(C); In re Residential Capital, LLC, 480 B.R. 529, 542 (Bankr. S.D.N.Y.2012) ("Rule 26(b)(2) directs the court to limit or forbid unduly burdensome discovery.") (quotation omitted); Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316 (S.D.N.Y.2003) (indicating "Rule 26(b)(2) imposes general limitations on the scope of discovery in the form of a `proportionality test'"). Rule 26(b)(2) requires the court to:
Fed.R.Civ.P. 26(b)(2)(C). The Surabians' discovery requests will be addressed under this framework below.
The Surabians' request to examine the books and records of BLMIS must be denied because the materials they seek are not "relevant to their claims or defenses." Not only has the Trustee performed a thorough search of BLMIS's books and records and found no connection to the Surabians' claimed investments, the Surabians themselves have never offered any documentation or corroborative evidence that they invested in BLMIS. Without such evidence, it is unwarranted to permit the Surabians to embark on a fishing expedition through BLMIS's records in an attempt to now somehow support their baseless allegations. "The discovery rules are designed to assist a party to prove a claim it reasonably believes to be viable without discovery, not to find out if it has any basis for a claim. That the discovery might uncover evidence showing that a plaintiff has a legitimate claim does not justify the discovery request." Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1327 (Fed.Cir.1990).
The Surabians' motion to subpoena the records of the Trustee and SIPC to ascertain the allowed claims and their determination process also seek discovery that is neither relevant to the Surabians' claims or defenses nor the subject matter of this proceeding. Any information regarding BLMIS customers and their claim determinations has no impact on the Surabians' claims. Indeed, as discussed supra, the Surabians carry the burden to establish that they are customers of BLMIS. See SIPA § 78fff-2(b) (requiring the obligations
Even assuming arguendo that the subpoenas seek relevant discovery, which they do not, the discovery request must be denied as unduly burdensome. Under Rule 26(b)(2)(C), the Court must weigh the burden and expense of a discovery request against "the likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(C)(iii). First, the Surabians' subpoena seeks all of BLMIS's books and records. The burden and expense resulting from requiring the Trustee to turn over millions of pages of documents necessarily outweighs the slight, if any, benefit that can be revealed from the requested material. Second, the Surabians' subpoena also seeks the records of the Trustee and SIPC pertaining to all allowed customers, and how they were determined to be customers. Again, there is no benefit to the Surabians that can be revealed from this discovery that can outweigh the burden suffered by the Trustee and SIPC if required to produce the millions of pages of data that they have amassed in the claims determination process.
Additionally, to the extent that it is relevant, the claims determination process has been made public and is readily available to the Surabians. See Claims Procedure Order (Dkt. No. 12). Any discovery seeking how customer claims have been determined must be rejected. See Fed.R.Civ.P. 26(b)(2)(C) ("[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules ... if it determines that: (i) the discovery sought ... can be obtained from some other source that is more convenient").
The Surabians have failed to demonstrate the excusable neglect necessary to warrant reconsideration of the Expungement Order, and have also failed to justify the heavy burden of permitting Madoff to testify. Additionally, the Surabians have failed to establish that (i) the records they seek are relevant and (ii) the subpoenas are not overly burdensome. Accordingly, the Vacate Motion, Late Opposition Motion, Madoff Subpoena Motion, and Records Subpoena are all DENIED.
Tab Date Pleading Outcome 1 April 5, 2010 Objection to Trustee's Motion Objection was overruled by for an Order to Schedule the Court Hearing on "Customer" Issue
2 January 3, 2011 Objection to the Settlement Objection was overruled by with the Estate of Jeffry M. the Court Picower 3 April 4, 2012 Objection to the Settlement Objection was overruled by between the Trustee and the Court: questioned as Trotanoy Investment confusing and without basis Company, Ltd. 4 August 1, 2012 Objection to Trustee's Motion Objection was overruled and Seeking a Scheduling Order scheduling order was entered with respect to the Time-Based Damages Issues 5 August 8, 2012 Objection to Trustee's Motion Objection was overruled by for a Second Interim the Court: lack of standing. Distribution The Court found the objection "frivolous" as "they were set forth by individuals who I've already found previously lack standing as their claims have been denied" 6 August 23, 2012 Motion to Remove Irving H. Motion was denied by the Picard as Trustee Court 7 September 19, 2012 Late Notice of Appeal of Objected to by Trustee as Order Approving Second untimely Interim Distribution to (replaced by Jan. 7 Motion to Customers File Late Appeal) 8 November 30, 2012 Notice of Appeal of this Pending before Judge Koeltl Court's denial of Motion to of the District Court (13-cv-00935) Remove Irving H. Picard as Trustee 9 January 7, 2013 Motion to File Late Appeal of Appeal was dismissed as The Order Approving Second untimely by Judge Forrest of Allocation of Interim the District Court (12-cv-07999) Distribution to Customers
