Search This Blog

Saturday, November 9, 2019

Teller v Helbrans, 2019 WL 5842649 (E.D. New York, 2019)[Guatemala] [Federal & State Judicial Remedies] [ Dismissal with prejudice for violations of Rules 16(f)(1)(A) and 16(f)(1)(C)]

In Teller v Helbrans, 2019 WL 5842649 (E.D. New York, 2019) Aaron Teller (“Teller”) commenced an action under the Hague Convention on Civil Aspects of International Child Abduction. 

Teller filed a Petition on May 29, 2019, alleging that his wife, Helbrans, abducted their six children in October 2018. Teller asked for the children to be returned to Guatemala, their alleged habitual residence, for custody proceedings. Teller alleged that he, Helbrans, and the six children were members of the Jewish community Lev Tahor living in Guatemala and that Helbrans left the community with the children in violation of Teller’s custody rights. All six children moved to intervene, and the Court approved their participation. 

In June 2019, the Court adopted Helbrans and Teller’s jointly proposed discovery and trial schedule. The schedule contemplated the commencement of trial on September 23, 2019. On July 11, Helbrans moved to compel the production of certain documents. The Court subsequently ordered Teller to produce non-privileged documents in response to Helbrans’s document requests and to provide information about a set of emails. No complete production of responsive documents was ever made. Helbrans sought an order compelling Teller to appear for a deposition pursuant to the Walsh Act, 28 U.S.C. § 1783. Teller resisted these efforts. On August 12, the Court denied Helbrans’s motion to compel without prejudice to renewal. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *1 (E.D.N.Y. Aug. 12, 2019); On August 15, Helbrans supplemented her earlier submissions and renewed her motion under the Walsh Act. In response, Teller asked that his deposition be taken in Guatemala. Teller’s counsel also informed the Court that Teller would not be testifying at the trial in New York and asked to appear by videoconference, but he provided no reason why an in-person appearance was not possible. Helbrans also moved to compel Teller’s production of documents on August 19. Helbrans informed the Court that Teller “produced only 15 documents weeks after the [document discovery] deadline, only after Respondent repeatedly prodded Petitioner and asked about specific categories of documents that should have existed in Petitioner’s possession.”  She recounted that on August 3, one day after the document discovery deadline, Teller’s counsel said that Teller’s final production had been sent.  But on August 7, 2019, Teller’s counsel said, “I have not received any documents from Aaron Teller yet.” Helbrans also asked the Court to amend the discovery and trial schedule because Teller had failed satisfy other discovery obligations. His failures allegedly included: not serving discovery requests by June 21, not serving objections and responses to Helbrans’s discovery requests by June 26, and not producing any documents by the document production deadline of August 2. 
The Court granted Helbrans’s motion for a Walsh Act subpoena. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3975555, at *5 (E.D.N.Y. Aug. 21, 2019). The Court explained that “[t]here is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness,” and “it is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter.” In granting the motion, the Court noted that although Teller refused to appear for a deposition or trial, “[t]here is no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States.”  As a result, the Court directed (i) Teller’s counsel to provide an estimate of travel and attendance costs for the deposition, (ii) Helbrans to provide subpoenas to be so-ordered for Teller’s deposition and trial testimony and to arrange for service of the subpoenas pursuant to Federal Rule of Civil Procedure 4(f), and (iii) the parties to meet and confer about the date for Teller’s deposition. 

On August 22, a status conference was held with counsel for Teller, Helbrans, and all Respondent-Intervenors. In light of Teller’s discovery failures, the Court adjourned the trial to October 29, 2019. The Court then “so-ordered” two Walsh Act subpoenas compelling Teller to testify at a deposition in the United States and at the trial. After Teller’s counsel provided an estimate of travel and attendance costs, the Court asked Helbrans to pay $3,340, which her counsel agreed to do.  In September 2019, an agent attempted personal service on Teller of the two Walsh Act subpoenas and the check for the travel funds. On September 7, 8, 11, and 15, the agent attempted to serve Teller by visiting a gated community in Guatemala at which Teller was known to be living with the Lev Tahor community. Personal service could not be accomplished. Members of the Lev Tahor community took steps over those four days to help Teller evade service by turning the agent away from their “private property” and refusing to accept service on behalf of Teller. The agent then had the documents sent via certified mail to Teller’s Guatemalan address on September 20. A security guard at the gate of the community did not allow the delivery by the Guatemalan postal service. Helbrans’s counsel sent a copy of the two subpoenas to Teller’s counsel via email. The subpoenas and check were made available for Teller to pick-up at a Guatemalan post office, and Teller’s counsel said that he would advise Teller as such.

On September 7, Helbrans asked the Court to draw an adverse inference against Teller because, as of that date, “Teller had not produced any documents responsive” to Helbrans’s requests for production in violation of the Court’s August 22 order. The only documents he produced were documents from Chayeh and Yakev Weingarten, both non-parties and purported members of Lev Tahor. Helbrans’s counsel also had learned that Teller’s counsel had been unable to communicate with Teller. A status conference was held on September 23, 2019. Prior to the conference, Teller’s counsel filed a letter stating that he wished to be relieved as counsel. At the status conference, Teller’s counsel provided some explanation for the request. Among other things, he stated that he had experienced a “lack of cooperation” from Teller in gathering information, “the discovery process has had a lot of pitfalls, and [counsel] d[id]n’t see an end to that potential process.” Counsel also learned that Lev Tahor may be moving to Iran; counsel had personal and litigation-based objections to such action, but he did not elaborate. The Court directed counsel to file a motion to withdraw as counsel as required by Local Civil Rule 1.4.

At the status conference, Teller’s counsel again told the Court that Teller did not intend to appear for his deposition or the trial. He stated, “Mr. Teller has indicated to me that he will not, even if properly served with a subpoena, be able to come to the United States.”. After the Court stated that Teller could be held in contempt, his case would be dismissed with prejudice if he did not appear for his deposition, and he could not “get the benefits of a court adjudication, and at the same time avoid the obligations that go along with them[,]” Teller’s counsel stated that he had “communicated that to [Teller].”. The Court then scheduled a hearing on the motion to withdraw as counsel and directed Teller to appear at the hearing. On October 18, the deposition of Teller was convened. The attorneys for Helbrans, Y.C.T., and the Children Teller appeared. Teller, however, did not. 

Helbrans filed a motion to dismiss the Petition with prejudice under Federal Rules of Civil Procedure 37 and 41. Their children, the Respondent-Intervenors, also requested dismissal in separate filings. The court found that since the Petition was filed, Teller engaged in a pattern of misconduct and paid little attention to and disregarded the obligations attendant to a litigant in a federal civil proceeding. Although Teller ostensibly filed the Petition to have his six children returned to him in Guatemala for custody proceedings, it was obvious to the Court that he hads little to no intention of litigating the case. Because time is of the essence in a Hauge Convention case, the Court entered an expedited discovery schedule and set a trial date. In response, Teller first ignored his discovery obligations by refusing to provide documents requested by the other parties. He then failed to appear for his deposition. And finally, when his lawyer moved to withdraw, Teller failed to appear at the motion hearing, even though he was directed to do so by the Court. Teller repeatedly told the Court that he had no intention of appearing for any trial. Teller, who was a U.S. citizen, never gave any reason why he could not appear in a case he initiated. A federal statute—the Walsh Act—permits a court to compel and subpoena a U.S. citizen to testify. The Court did so and also eliminated any potential financial barriers to appearance by having the law firm representing Respondent Sara Feiga Helbrans (“Helbrans”) pay for Teller’s plane fare and hotel accommodations. In response, Teller took various steps to evade service of the Court’s subpoena (none of which actually negated the propriety of service) and again reiterated his intention never to appear. It was  obvious that Teller’s motivation in bringing this case was either to harass the other parties or to obtain some strategic advantage in other litigation (including the New York State custody proceedings that had been stayed because of the filing of the Petition). While a party’s motivation in filing suit may be irrelevant, violations of court orders may not so easily be disregarded. The flagrant and repeated disregard of court orders and discovery obligations compeled the Court to dismiss Teller’s Petition with prejudice.
The Court granted the motion to withdraw, as well as the motions to dismiss.and dismissed the Petition with prejudice pursuant to Rule 37(b)(2)(A)(v), for his violations of Rules 16(f)(1)(A) and 16(f)(1)(C). See, e.g., Wang, 308 F.R.D. at 120 (dismissing plaintiff Wang’s complaint with prejudice pursuant to Rule 37 “because the Wangs and their counsel repeatedly and willfully obstructed Bear Stearns’ efforts to depose Mr. Wang ... [and counsel] refused to accept service of any subpoena.”).