UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

RELIGIOUS TECHNOLOGY CENTER,

Plaintiff,

v. Case No.: 8:02-MC-42-T-26EAJ

DELL LIEBREICH, individually and
DELL LIEBREICH as Personal
Representative of the ESTATE OF
LISA McPHERSON,

Defendants.

ORDER

Before the court are: 1) Motion to Quash Subpoenas, Motion For Protective Order, Motion For Sanctions And Memorandum of Law (Dkt. 1), filed by Dandar & Dandar, P.A., Kennan G. Dandar, and Defendant, Dell Liebreich, as Personal Representative of the Estate of Lisa McPherson; 2) Judgment Creditor Religious Technology Center's Consolidated Memorandum of Law In Opposition To Dandar & Dandar's Motion To Quash Subpoenas, Inter Alia, And In Support of Cross Motions And Request For Expedited Hearing (Dkt. 7); 3) Response To Motion To Enforce Subpoenas And Compel Production (Dkt. 12), by Dell Liebreich as Personal Representative of the Estate of Lisa McPherson; and 4) Supplemental Memorandum Of Law In Support Of Motion To Quash Subpoenas, In Response To Motion For Issuance Of Post-Judgment Writs Of Garnishment, And In Response To Motion To

Enforce Subpoenas And Compel Production (Dkt. __), filed on May 9, 2002, by Dandar & Dandar, P.A., Kennan Dandar and Defendant, Dell Liebreich as Personal Representative of the Estate of Lisa McPherson. Subsequent to the May 9, 2002, hearing, the parties filed additional submissions which have also been considered. [1]

I. Background

Judgment creditor, Religious Technology Center ("RTC") obtained on March 6, 2002, a final judgment issued by Judge John Hannah, Jr. of the United States District Court for the Eastern District of Texas, in Religious Technology Center v. Dell Liebreich, as Personal Representative of the Estate of Lisa McPherson, Case No. 6:00-CV-503 ("judgment"). The judgment was against the Estate of Lisa McPherson ("Estate") in the amount of $258,697.11 with an additional $49,955.76 in pre-judgment interest. The Estate filed a Notice of Appeal on April 18, 2002.

On April 5, 2002, RTC served deposition subpoenas duces tecum, issued in this district, to Kennan Dandar and Dandar & Dandar, P.A.

______________________________ [1] RTC filed a copy of an order entered by the United States District Court for the Eastern District of Texas on May 22, 2002, which award RTC costs including attorney's fees, 30% of which is to be paid by Thomas and Kennan Dandar, personally, as a sanction for their "vexatious conduct" in the Texas litigation (Dkt. 23). Dandar & Dandar, P.A., Kennan Dandar and Dell Leibreich filed a notice of reliance of additional authority of the May 27, 2002, order in the Estate of Lisa McPherson v. Church of Scientology Flag Service Organization, Case No. 005682-CI-11, Sixth Judicial Circuit of Pinellas County, Florida (Dkt. 24). The order in the Pinellas County case prohibits The Church of Scientology, Flag Service Organization, an entity related to RTC, from obtainingfinancial records from Dandar & Dandar, P.A. and Kennan Dandar.

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in aid of execution pursuant to Rule 69, Federal Rules of Civil Procedure, for deposition on April 18, 2002. This court stayed the depositions pending a ruling on the motion to quash, motion for protective order and motion to compel.

Dandar & Dandar, P.A., Kennan Dandar, and Dell Liebreich as Personal Representative of the Estate of Lisa McPherson ("Estate") (collectively "Movants") seek an order quashing the subpoenas and granting Movants a protective order. RTC seeks an order compelling the depositions. RTC states that the primary asset of the Estate consists of funds provided to the law firm or Kennan Dandar by Robert Minton to fund wrongful death litigation pending in state court. RTC sets forth testimony allegedly showing that the funds are in danger of being dissipated or misappropriated by the lawfirm and/or Kennan Dandar.

Dandar & Dandar, P.A. and Kennan Dandar are attorneys of record for the Estate in Estate of Lisa McPherson v. Church of Scientology Flag Service Organization, Inc., Pinellas Circuit Court Case No. 00-5682-CI-11 (hereinafter "wrongful death litigation" or "wrongful death action"), a wrongful death action filed in 1997 against the Church of Scientology Flag Service Organization, Inc. [2] ("Flag").

Movants represent that they are at the "eve of trial" in the

______________________________ [2] FLAG and RTC are related entities. In fact, RTC's judgment against the Estate is for a breach of contract as a result of an agreement allegedly breached during the wrongful death litigation.

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wrongful death action which is expected to take four months and argue that these depositions are designed to harass Estate and its attorneys (Dkt 4, ¶11).

Movants represent that Flag also filed a Florida state court breach of contract action and in that case sought the same discovery that RTC seeks in these subpoenas, namely to discover the source and character of the funding for the wrongful death action. On April 12, 2002, the Florida Second District Court of Appeal entered an order prohibiting that discovery (Dkt. 1, ¶12). Movants argue that these subpoenas are an attempt to circumvent the Second District Court of Appeal's order. Accordingly, Movants argue this court should quash RTC's subpoenas.

Movants also argue that RTC cannot obtain discovery pursuant to Rule 69 because RTC has not domesticated its judgment under either federal (28 U.S.C. § 1963) or state (Chapter 55, Florida Statutes) law. RTC concedes that it cannot register its judgment pursuant to 28 U.S.C. § 1963 because the Estate has filed an appeal of the judgment with the United States Fifth Circuit Court of Appeals and the appeal remains pending. RTC has apparently initiated the process for domestication under Florida Statute Chapter 55 by filing a copy of the judgment in Pinellas County Circuit Court. RTC argues that even though it cannot register its judgment with this court under 28 U.S.C. § 1963, it is entitled to discovery in aid of execution pursuant to Rule 69.

4 I. Analysis

The court has considered counsel's positions and has thoroughly examined the cases cited by the parties as well as other pertinent authorities.

Domestication of a Foreign Judgment

Rule 69(a), Fed. R. Civ. P., provides that a judgment creditor, in aid of a judgment or execution, may obtain discovery from any person, including the judgment debtor, in the manner provided by the Federal Rules of Civil Procedure or in the manner provided by the practice of the state in which the district court is held.

A party with a judgment issued by a United States District Court may domesticate it, or "register" the judgment in any district court pursuant to 28 U.S.C. § 1963. Upon registration, the judgment will have the same effect as a judgment of the district court of the district where registered and may be enforced in a like manner. Id. 28 U.S.C. § 1963, in pertinent part, provides:

A judgment in an action for the recovery of money or property entered in any district court or in the Court of International Trade may be registered by filing a certified copy of such judgment in any other district, when the judgment has become final by appeal or expiration of the time for appeal or when ordered by the court that entered the judgment for good cause shown.

A judgment may not be registered pursuant to § 1963 unless it

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is a final judgment. A judgment in not final if an appeal is pending, even if there is no stay or supersedeas bond posted. Urban Industries, Ind. of Kentucky v. Thevis, 670 F.2d 981, 984 (11th Cir. 1982). A judgment creditor may pursue an independent action to collect his judgment in a different jurisdiction even during the pendency of an appeal if the judgment is not superceded or stayed. Id. at 985.

Alternatively, a judgment creditor may domesticate a federal judgment through state law even if an appeal is pending. See generally Keeton v. Hustler Mag., Inc., 815 F. 2d 857, 861-862 (2nd Cir. 1987).

Pursuant to Chapter 55, Florida Statutes, a judgment creditor may file the judgment with the Clerk of the Circuit Court with an affidavit setting forth enumerated information. § 55.505(1), Florida Statutes. No execution or other process for enforcement of the judgment shall issue until thirty days after mailing of notice to the judgment debtor. §55.505(3), Florida Statutes. A judgment debtor may object to the judgment within this thirty day period pursuant to §55.509; if an action under § 55.509 is filed, it acts as an automatic stay. § 55.505(3), Fla. Stat.

To date, there is no indication that RTC has domesticated the judgment against the Estate under Florida law.

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May Discovery Proceed In The Absence Of A Judgment Upon Which Execution May Issue?

The threshold issue before this court is whether RTC can pursue post-judgment discovery under Rule 69 before it has domesticated its judgment under either federal or Florida law.

The cases cited by RTC, in support of its position, as allowing discovery pursuant to Rule 69 are distinguishable from the instant case. The majority of cases cited by RTC involved discovery initiated in the same court which had issued the judgment. Therefore, the failure to register was not a bar. Those court could execute or enforce the judgment even if the judgment was appealed so long as a stay of the judgment was not issued. [3]

In contrast, this court's jurisdiction is limited to issuing subpoenas in aid of execution and, once the judgment may be executed, issuing writs in aid of execution. Nor are the other cases cited by RTC persuasive. [4]

______________________________ [3] National Service Industries, Inc. v. VAFLA Corporation, 694 F.2d 246 (11th Cir. 1982); Fuddruckers, Inc. v. KCOB, L.L.C., 31 F. Supp. 2d 1274 (D. Kan. 1998); Trustees of North Florida Operating Engineers Health And Welfare Fund v. Lane Crane Service, Inc., 148 F. R. D. 662 (M. D. Fla. 1993) ; Comer v. City of Palm Bay, 147 F. Supp.2d 1292 (M. D. Fla. 2001); Miami International Realty Co. v. Paynter, 807 F. 2d 871 (10th Cir. 1986).

[4] See Trustees of the North Florida Operating Engineers Health and Welfare Fund v. Lane Crane Services, Inc., 148 F.R.D. 662, 664 (M.D.Fla. 1993) (judgment creditor is not required to implead third parties under Florida law prior to having access to discovery to determine whether third parties hold property belonging to the judgment debtor). The court's opinion does not indicate whether the judgment was entered in that court or elsewhere and whether it

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The discrete issue before this court - whether a judgment creditor may seek discovery pursuant to Rule 69 in a district court other than the court that entered judgment when the judgment creditor under both federal and state law cannot execute on the judgment - is not directly addressed in any cases cited by RTC.

The court concludes that RTC's commencement of Rule 69 discovery is premature.

Relevancy, Necessity and Burdensomeness

Even assuming arguendo that discovery is not premature, RTC must show that the discovery sought is relevant and necessary. Blaw Knox, 130 F.R.D. at 403. RTC has not met that burden at this stage. [5]

RTC's timing of service of the subpoenas is also suspect given the proximity to the upcoming wrongful death trial and state courts' disapproval of RTC's efforts to obtain similar discovery.

______________________________ was an executable judgment. See Blaw Knox Corp. v. AMR Industries, Inc., 130 F.R.D. 400, 401-402 (E.D. Wis. 1990) (judgment creditor is not required to attempt to execute judgment against defunct judgment debtor corporation prior to commencing discovery against directors of corporation). The opinion indicates that the judgment was entered in a different jurisdiction, but does not indicate whether it was an executable judgment.

[5] The court notes that RTC has filed a copy of an order, not a judgment, entered by the district court for the Eastern District of Texas, awarding RTC costs, including attorneys fees, and a portion of the award is to be paid Thomas and Kennan Dandar as a sanction. This submission does not alter the conclusion that the discovery sought is premature and inappropriate at this time.

8 (Dkt. 1 and 24)

To allow discovery pursuant to Rule 69 before RTC domesticates its judgment does not serve the purpose of Rule 1, Federal Rules of Civil Procedure which provides that the Federal Rules of Civil Procedure shall be construed and administered to secure the just, speedy and inexpensive determination of every action. RTC is unable to predict when its judgment will be perfected. Any discovery undertaken now could be stale if and when RTC obtains a judgment it can execute on under federal or Florida law.

II. Conclusion

Therefore, this court grants Movants' motions to quash and for protective order. This court denies Plaintiff's motion to compel depositions without prejudice to reassert once Plaintiff has domesticated its judgment either under federal or Florida law. Alternatively, Plaintiff may file a separate action to enforce its judgment.

Movants have raised additional arguments in support of their motion for protective order and motion to quash. Because discovery may not proceed under Rule 69 at this time, the court need not reach those issues.

Accordingly, it is hereby ORDERED and ADJUDGED:

(1) Dandar & Dandar, P.A., Kennan Dandar and Dell Leibreich's motion to quash and motion for protective order (Dkt. 1) is GRANTED and the subpoenas issued to Dandar & Dandar, P.A. and Kennan Dandar

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on April 5, 2002 are QUASHED;

(2) Dandar & Dandar, P.A., Kennan Dandar and Dell Leibreich's motion for sanctions (Dkt. 1) is DENIED; and

(3) Religious Technology Center's motion to compel (Dkt. 6) is DENIED WITHOUT PREJUDICE.

       DONE AND ORDERED in Tampa, Florida on this [5th] day of July, 
2002.
                                             ELIZABETH A. JENKINS
                                             United States Magistrate Judge

Copies to: 
Counsel of record

                               10

                               FILE COPY

Date Printed: 07/08/2002 



Notice sent to:

       Charles Allen Gall, Esq. 
       Jenkens & Gilchrist
       First Interstate Bank Tower 
       1445 Ross Ave., Suite 3200 
       Dallas, TX 75202-2799

       Jerry C. Parker, Esq.
       Law Office of Jerry C. Parker 
       218 N. College
       Tyler, TX 75702

       Samuel D. Rosen, Esq.
       Paul, Hastings, Janofsky & Walker 
       399 Park Avenue, 31st Floor 
       New York, NY 10022-4697

       Samuel D. Rosen, Esq.
       Paul, Hastings, Janofsky & Walker, L.L.P. 
       75 E. 55th St.
       New York, NY 10022

       F. Wallace Pope, Esq.
       Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A.
       911 Chestnut St.
       P.O. Box 1368
       Clearwater, FL 33757-1368

       Thomas John Dandar, Esq. 
       Dandar & Dandar, P.A. 
       P.O. Box 24597 
       Tampa, FL 33623-4597

       Luke Charles Lirot, Esq. 
       Luke Charles Lirot, P.A. 
       112 East St., Suite B 
       Tampa, FL 33602
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