Melohn v. Stern

Background

Michael Melohn filed an amended petition under Federal Rules of Civil Procedure 27 and 34 before filing the lawsuit he contemplated. He asked the court to order Sy Stern, Alfons Melohn, Akiva Feinsod, Ezra Beyman, Yaakov Beyman, David Teiler, Eli Kunstlinger, Robert Kunstlinger, Sima Weintraub, and Rabbi Mayer Zaks to submit to depositions or produce documents identifying unknown “John Doe” respondents. He also listed “John Does 1-20” in the caption but did not seek an order directed to them.

Melohn said he intended to bring claims for civil racketeering, fraud, conversion, constructive trust, and money had and received. He alleged that the respondents had induced, coerced, extorted, or manipulated Alfons Melohn into actions including transferring money, commingling funds, cashing government bonds, and paying family members for “no show” jobs. Melohn said he needed the identities of unknown collaborators and details about transactions to begin the expected lawsuit.

Some respondents opposed the petition. The Melohn Respondents also moved for sanctions under Rule 11, arguing that the petition was frivolous and part of an escalating pattern of harassment and abuse. The opinion states that certain served respondents did not appear.

Rule 27 analysis

Rule 27 permits a person who expects to become a party to a federal-court action to seek an order preserving testimony before filing that action. The court explained that Rule 27 is not a general pre-lawsuit discovery device for finding evidence, determining whether a claim exists, or identifying whom to sue.

The court first found several procedural defects. The amended petition was not verified. It did not provide the address of each respondent as required by Rule 27. It also did not include a notice stating the time and place of a hearing, and Melohn never requested a hearing.

The court then held that the petition failed the required three-part showing even assuming those procedural defects could be overlooked. First, Melohn did not provide a focused explanation of testimony already known and needing preservation. Instead, he acknowledged that he sought the information to identify additional defendants for his planned lawsuit. The court characterized that purpose as an impermissible use of Rule 27 for discovery.

Second, Melohn did not show that he was presently unable to bring the contemplated action. The court said that difficulty naming all possible actors or pleading the claims with enough detail did not establish the kind of inability required by Rule 27.

Third, Melohn did not make an objective, specific showing that the information or testimony would be lost, concealed, or destroyed without immediate court intervention. His brief statement that it would be futile to ask the respondents voluntarily for the information was insufficient.

The court also noted that Rule 34 itself did not apply because, like most Federal Rules of Civil Procedure, it generally operates when a lawsuit is pending between parties. Rule 27(a)(3), however, permits a court that orders depositions to issue orders like those authorized by Rule 34.

Rule 11 sanctions

The Melohn Respondents sought expenses, attorneys’ fees, and other relief under Rule 11 based on the amended petition. The court denied that motion because Rule 11(d) states that Rule 11 does not apply to disclosures, discovery requests, responses, objections, and motions under Rules 26 through 37. The court concluded that this Rule 27 application fell within that exclusion.

Disposition

The court denied the petition for an order to preserve testimony under Rule 27, denied the motion for Rule 11 sanctions, and dismissed the petition. The Clerk was directed to terminate the sanctions motion and close the case.