Preble-Rish Haiti, S.A. v. Republic of Haiti
- P. Castel
- 1:21-cv-04960
- U.S. District Court · Southern District of New York
- 3
In Preble-Rish Haiti v. BMPAD, Judge Castel denied motions to compel because the deposition subpoena violated Rule 45's geographic limits.
Preble-Rish Haiti, S.A.'s efforts to depose Michel Patrick Boisvert were affected. The Republic of Haiti and BMPAD were also affected because the court denied the motions seeking to compel his testimony.
What happened
In Preble-Rish Haiti, S.A. v. Republic of Haiti, Preble-Rish asked the court to require Michel Patrick Boisvert to appear for a deposition in Washington, D.C. Preble-Rish said it wanted information about assets that could satisfy its judgment and help enforce its arbitration award.
The Republic of Haiti argued that the subpoena was invalid and unenforceable and asserted that Boisvert had immunity for information or actions connected to his government position. The court did not decide the immunity issue. Instead, it applied the geographic limits for deposition subpoenas under Rule 45 of the Federal Rules of Civil Procedure.
Judge Castel denied the motions filed in all three related cases. The court held that Boisvert could not be required to appear in Washington, D.C., or New York because he lived and worked in Haiti, did not regularly conduct business in Washington, and did not own property or conduct business in New York. The court also declined to move the deposition to San Juan or Miami.
The detailed version
- Preble-Rish Haiti, S.A. v. Republic of Haiti · No. 1:21-cv-04960
- P. Castel
- Sept. 30, 2022
Background
Preble-Rish Haiti, S.A. moved to compel compliance with a subpoena requiring Michel Patrick Boisvert to testify at a deposition. The subpoena was served on Boisvert at Ronald Reagan Washington National Airport and required him to attend at Preble-Rish's counsel's office in Washington, D.C. It identified him as the Minister of Economy and Finance for the Republic of Haiti.
Preble-Rish stated that it sought information about assets that could be attached to satisfy its judgment and information to assist in enforcing its arbitration award. In other filings, Preble-Rish had argued that the Bureau de Monétisation des Programmes d’Aide au Développement, or BMPAD, lacked authority to enter the fuel contracts and that Boisvert, acting for the Ministry of Economy and Finance and representing Haiti, authorized them.
Arguments and governing rule
The Republic of Haiti argued that the subpoena was invalid and unenforceable. It also invoked Boisvert's common-law sovereign immunity for information received or acts taken as a government official. The court expressly stated that it was unnecessary to decide the sovereign-immunity issue because the motion could be denied on other grounds.
Federal Rule of Civil Procedure 45 generally permits a subpoena to require deposition testimony within 100 miles of where the person lives, works, or regularly conducts in-person business. Another provision permits a party or a party's officer to be subpoenaed within the state where that person lives, works, or regularly conducts such business. The court assumed, without deciding, that a government minister qualified as an officer of Haiti under the rule and that the motion was filed in the proper district.
Court's analysis
Boisvert declared under penalty of perjury that he was a citizen and full-time resident of Haiti; had been appointed Minister of Economy and Finance on March 5, 2020; did not regularly travel to Washington, D.C., for business; and had traveled there only once since becoming minister. He also stated that he owned no property in New York, had not traveled there since his appointment, and did not do business with New York entities.
Based on those facts, the court concluded that Rule 45 did not permit Boisvert to be commanded to appear in Washington, D.C., or New York. The court recognized that it may modify a subpoena to reduce the burden on a deponent, but explained that this discretion depends on the subpoena being proper under Rule 45 in the first place. The court declined to modify the subpoena to require the deposition in San Juan or Miami because Preble-Rish had not shown that Boisvert lived or conducted business in either location.
Disposition
Judge P. Castel ordered that the motions filed in 21-cv-4960 (PKC), 21-cv-6704 (PKC), and 21-cv-9040 (PKC) were DENIED. The order denied the motions based on Rule 45's geographic requirements and did not decide the common-law sovereign-immunity issue.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.