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Novak v. Tigani

Superior Court of Delaware, New Castle County

March 28, 1955

Mary T. NOVAK and Martin A. Novak, Plaintiffs,
v.
Francis W. TIGANI and Delaware Steeplechase & Race Association, Defendants, Delaware Steeplechase & Race Association, Third Party Plaintiff, (Walter J. HIGGINS and Matthew J. Murray, partners doing business under the name and style of Olympic Parking Service, Third Party Defendants).

Plaintiffs served notice to take depositions of third party defendants and their alleged managing agent. On motion by deponents for protective order the Superior Court, Herrmann, J., held that notice to take depositions was unenforceable because plaintiffs had no action pending against third party defendants in which default judgment could be entered.

Notice to take depositions vacated.

Albert L. Simon and Stephen E. Hamilton, Jr., Wilmington, for plaintiffs.

William H. Bennethum (of Morford & Bennethum), Wilmington, for third party defendants.

HERRMANN, Judge.

By notice served upon counsel, the plaintiffs have called upon the third party defendants to appear in Wilmington for the taking of their depositions. The notice also calls for the attendance in Wilmington of an employee of the third party [49 Del. 172] defendants, alleged to be their managing agent, for the purpose of taking his deposition.

The deponents are residents of New York. The third party defendants have been served with process in the action against them by the third party plaintiff but the plaintiffs, who now seek to take the depositions, have not asserted a claim against the third party defendants by the prerequisite amendment of their complaint. See Ingerman v. Bonder, 7 Terry 99, 77 A.2d 591; Goldsberry v. Frank Clendaniel, Inc., Del.Super., 109 A.2d 405.

Page 854

The deponents ask for a protective order under Civil Rule 30(b).[1] They contend that they are not obliged to respond to the notice of depositions by attendance in Wilmington and that, if the plaintiffs wish their depositions, subpoenas must be issued under Rules 26(a) and 45(d)[2] to compel their appearance at a proper place in New York.

I am of the opinion that the plaintiffs may not compel the attendance of the deponents in Wilmington by the notice procedure. A notice of deposition is an effective substitute for a subpoena only if the party, to whom the notice is directed, may be subjected to the sanctions provided by Rule 37.

[49 Del. 173] In the absence of an adequate sanction to implement the notice and to compel the attendance of the person whose deposition is sought, the notice is without force and the subpoena is necessary. See 4 Moore's Fed.Pract., ¶ 26.10, p. 1051.

There is no sanction which may be invoked by the plaintiffs under Rule 37 to compel the deponents to respond to the notice of depositions. The sanctions provided by Rule 37(b), including contempt of court, are not available to the plaintiffs under the circumstances of this case. Rule 37(b) provides sanctions for refusal to be sworn after appearance or refusal to answer questions after being directed by the court to do so. That Rule does not provide a remedy for wilful failure to appear for deposition.

Rule 37(d) provides the only available sanctions for a person's refusal to attend the taking of his deposition upon notice.[3] That Rule does not aid the plaintiffs in this case. The sanction of default judgment, the only appropriate sanction under the Rule, is not available to the plaintiffs because they have no action pending against the third party defendants in which a default judgment may be sought.

Since the notice is unenforceable and since the deponents request a protective order, the notice of ...


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