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Marxe v. Marxe

Decided: April 10, 1989.

IRA MARXE, PLAINTIFF,
v.
RUTH MARXE, DEFENDANT



Krafte, J.s.c.

Krafte

A pendente lite motion to quash a subpoena duces tecum has been filed by Elwood Mabry, a nonparty, nonresident witness involved in the matrimonial suit between Ira and Ruth Marxe. Mabry, a resident of North Carolina, and plaintiff, Ira Marxe, co-own Hydrolabs, Inc. and are partners in C.P.M. Realty Associates. Mr. Marxe's interest in both business assets are subject to equitable distribution.

Due to his knowledge and expertise, Seymour Rubin, a certified public accountant, had previously been appointed by this court. Rubin's expertise assists the parties and court in valuation of marital assets. He has access to counsel and parties.

An on-going issue has been the valuation of plaintiff's business assets. To that end, Rubin requested an interview with Mabry. After several discussions, and with plaintiff's assistance, Mabry and his attorney appeared at Rubin's office for depositions on January 30, 1989. During the course of the depositions, defendant's counsel served Mabry a subpoena duces tecum to appear in court on the scheduled trial date, February 6, 1989, and any adjourned date thereafter. Mabry's counsel filed a motion to quash the subpoena. Oral argument was presented. The case has been adjourned.

This court makes the following findings of fact: Mabry was not lured into this jurisdiction; his attendance at the deposition was voluntary; he travelled to New Jersey 11 times during 1988 to meet with plaintiff regarding their joint business ventures; such actions evidence, at the very least, minimum contacts with the State of New Jersey.

The issues before this court are: whether the taking of depositions at the office of a court expert amounts to judicial proceedings, and, if so, does this cloak all in attendance with a veil of immunity; whether or not a nonresident nonparty witness is immune from service of process of a subpoena duces tecum at such depositions; and what is the effective life of a

subpoena duces tecum which commands the witness to appear on a date certain and each adjourned date.

Mabry argues that the taking of his deposition at Rubin's office was "in the course of judicial proceedings," and thus, he was immune from the service of process. Judicial proceedings have been described as follows:

[T]here must be parties, and opportunity to be heard, and the tribunal must proceed either to a determination of facts upon evidence or of law upon proved or conceded facts. When both these elements are present, there is a judicial proceeding. [ Mitchel v. Cropsey, 177 App.Div. 663, 164 N.Y.S. 336, 339 (1917)]

The purpose of Mabry's presence at the deposition was one of information gathering and to that end, he was asked questions. As is the nature of a deposition, all present are not given the opportunity to be heard; indeed, the purpose of the deposition is an opportunity for the parties to question a witness. Also lacking was any judicial determination of facts disclosed at said meeting. This court finds that the taking of Elwood Mabry's deposition was not within the ambit of a judicial proceeding; the meeting was arranged and conducted independently of the court. Immunity will not be granted to Mabry on this basis as the deposition did not amount to a judicial proceeding.

However, having said so, this court looks to broader concepts of immunity to ascertain whether Mabry can obtain same by virtue of his status as a nonparty, nonresident witness. Mabry's counsel presented citations to support their position that service-of-process immunity has been afforded to nonresident witnesses. This court notes, however, that the cited cases pre-date Wangler v. Harvey 41 N.J. 277 (1963) which is the seminal case in the area of immunity. In Wangler defendant, while present at court in his capacity as executor of an estate, was served with a summons and complaint naming him as a defendant in his individual capacity. Both actions arose out of a single ...


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