Celanese Corp. v. Duplan Corp.

502 F.2d 188, 19 Fed. R. Serv. 2d 153

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 15, 1974
• Docket: Nos. 73-1930, 73-2450
• Status: Published

Opinions

FIELD, Circuit Judge:

These consolidated appeals involve the efforts by counsel for Celanese Corporation and Fiber Industries, Inc., (hereinafter referred to as “petitioner”) to take the oral deposition of Henri Crouzet for use in a patent suit presently pending in the Southern District of Florida. Crouzet, a citizen and resident of France, is president of Ateliers Roannis de Constructions Textiles (hereinafter referred to as “ARCT-France”) and ARCT, Inc., both of which companies' are parties in a complex patent and antitrust suit pending in the District of South Carolina. Neither of the petitioners is a party to the South Carolina action and neither ARCT-France, ARCT, Inc., nor Crouzet is a pa'rty to the Florida litigation.

The background of the South Carolina appeal may be briefly stated as follows: Upon learning that Crouzet would be in South Carolina for the taking of his deposition in that litigation, counsel for petitioners noticed his deposition in the Florida litigation for the purpose of obtaining a subpoena from the Clerk of the District Court of South Carolina pursuant to Rule 45(d), Fed.R.Civ.P. They were advised, however, that the court had directed the Clerk not to issue subpoenas directed to any French witnesses during the time they were present in South Carolina for depositions incident to the South Carolina litigation. Eventually, a formal motion for a subpoena was filed by the petitioners and after a hearing thereon the court entered an order to the effect that during Crouzet’s presence in the United States for the purpose of giving testimony in the South Carolina litigation he should be immune from service of subpoena or other process in the litigation pending in the Southern District of Florida. The petitioners appeal from this order.

We think the district judge acted appropriately in immunizing Crouzet from the service of the subpoena during the time he was present in the District of South Carolina for the purpose of giving his deposition in the litigation pending in that district. This action of the court was consonant with the general rule that witnesses and parties attending a judicial proceeding outside the territorial jurisdiction of their residence are immune or exempt from service of civil process in another suit while in attendance at court in that jurisdiction. Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192 (1916); Moylan v. AMF Overseas Corporation, 354 F.2d 825 (9 Cir. 1965); Shapiro & Son Curtain Corp. v. Glass, 348 F.2d 460 (2 Cir. 1965).

In Stewart v. Ramsay, supra, the nature of the privilege was stated in the following terms:

“The true rule, well founded in reason and sustained by the greater weight of authority, is that suitors, as well as witnesses, coming from another state or jurisdiction, are exempt from the service of civil process while in attendance upon court, and during a reasonable time in coming and going.”

242 U.S. at 129, 37 S.Ct. at 45.

Quoting from Parker v. Hotchkiss, 18 Fed.Cas. No. 10,739, p. 1137, 1 Wall.Jr. 269, (C.C.E.D.Pa.1849), the Court went on to say:

“ ‘The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.’ ”

Id., at 130, 37 S.Ct. at 46.

The present case falls within the classic rationale of Stewart since, aside fi’om the fact that the intrusion of the petitioners upon the complex proceedings in South Carolina would have been most disruptive, it appears that Crouzet was in ill health and was exceedingly reluctant to make the trip from France to the United States for the purpose of giving his deposition. Accordingly, the action of the district judge in No. 73-1930 is affirmed.

Coincidentally with the proceedings in South Carolina the petitioners attempted to subject Crouzet to a subpoena issued out of the Middle District of North Carolina through the service of subpoenas directed to ARCT-France and ARCT, Inc., the latter being a North Carolina corporation with its principal office and place of business in Guilford County, North Carolina. The subpoenas were served upon a vice-president of ARCT, Inc., but in each instance was directed to the corporations “through Henri Crouzet, its President”. The district court did not pass upon the serious question of whether Crouzet as an individual could properly be subpoenaed through service upon the corporations neither of which was a party to the Florida litigation, but acting under Rule 26(c), Fed. R.Civ.P., entered an order quashing the subpoenas. The order expressly provided, however, that it was without prejudice to the rights of the plaintiffs to again apply for the issuance of such subpoenas upon a showing “that the use of letters rogatory (28 USC 1781; Federal Rules of Civil Procedure 28(b)) or stipulations allowing the use of the South Carolina depositions in the Florida litigation, will not produce the information needed by the plaintiffs, or some other reasonable method will not suffice to gain needed evidence from Henri Crouzet.” The court also left open the question of the authority or jurisdiction to issue subpoenas for Crouzet in such fashion in the Middle District of North Carolina.

Our review of the record persuades us that under the circumstances of this case there was no abuse of discretion by the district judge in entering this protective order and quashing the subpoenas. Cf., Hyam v. American Export Lines, 213 F.2d 221 (2 Cir. 1954). See Tiedman v. American Pigment Corporation, 253 F.2d 803 (4 Cir. 1958). Accordingly, the order of the district court in No. 73-2450 is also affirmed.

Affirmed in 73-1930.

Affirmed in 73-2450.