PRO PLAS, LLC’S RESPONSE TO DEBTOR’S MOTION TO QUASH NOTICE OF DEPOSITION OF JAMES P. TOOHEY
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
IN RE: ) Case No. 07-50934
)
PLASTICON INTERNATIONAL, INC., )
) Chapter 11
Debtor. )
)
PRO PLAS, LLC’S RESPONSE TO DEBTOR’S MOTION TO
QUASH NOTICE OF DEPOSITION OF JAMES P. TOOHEY
Creditor Pro Plas LLC, a Missouri limited liability company ( “Pro Plas”), hereby files its Response to Debtor’s Motion to Quash Notice of Deposition of James P. Toohey and in support thereof, respectfully states as follows:
1. Pro Plas admits the allegations in Paragraph 1 of the Motion to Quash Notice of Deposition of James P. Toohey (hereinafter “the Motion to Quash”).
2. a. Pro Plas admits the allegations in Sentences 1 and 2 of Paragraph 2 of the Motion to Quash.1
b. James P. Toohey has agreed to be deposed in St. Louis, Missouri; however, the date and time may change due to an illness in his family.
c. On June 27, 2007 at the Meeting of Creditors, Debtor Plasticon International, Inc.’s (“Debtor Plasticon’s”) representative testified that numerous individuals including James P. Toohey regularly transacted business at Pro Mold in St. Louis, Missouri.1
1 Pursuant to Federal Rule of Civil Procedure 45(b)(2) and 45(c)(3)(A)(ii) and Federal Rule of Bankruptcy Procedure 9016, a subpoena was issued from the United States Bankruptcy Court for the Eastern District of Missouri.
3. a. Pro Plas can neither admit nor deny the statements in Sentences 1 and 2 of Paragraph 3 of the Motion to Quash.
b. A copy of the subpoena has been transmitted to Counsel for Debtor Plasticon.
c. Pro Plas denies the allegations in Sentence 3 of Paragraph 3 of the Motion to Quash for the reason recited above.
4.
a. Pro Plas admits the allegations in Sentence 1 of Paragraph 4 of the Motion to Quash.
Before the Motion to Quash was filed, counsel for Pro Plas confirmed for counsel for Debtor Plasticon that depositions would be taken in regard to one pending matter: Pro Plas’ Motion for Relief from Automatic Stay.
b. Pro Plas denies all other allegations in Sentences 2 and 3 of Paragraph 4 of the Motion to Quash.
c. Answering further, Pro Plas states that, if the Court requests, it will amend its Notice of Deposition to cite the pending contested matter in this case.
5. a. Pro Plas admits the allegations in Sentence 1 of Paragraph 5 of the Motion to Quash.
b. Pro Plas denies the allegations in Sentence 2 of Paragraph 5 of the Motion to Quash.
c. Answering further, Pro Plas states that there is at least one pending contested matter in this case and that the contested matter is listed above.
6. a. Pro Plas denies the allegations in Sentence 1 of Paragraph 6 of the Motion to Quash.
b. Pro Plas admits the allegations in Sentence 2 of Paragraph 6 of the Motion to Quash.
c. Pro Plas denies the allegations in Sentence 3 of Paragraph 6 of the Motion to Quash.
d. Pro Plas admits the allegations in Sentence 4 of Paragraph 6 of the Motion to Quash.
e. Pro Plas denies the allegations in Sentence 5 of Paragraph 6 of the Motion to Quash.
f. Answering further, prior to the Motion to Quash being filed, counsel for Debtor Plasticon notified counsel for Pro Plas that Debtor Plasticon would object to the deposition of any party on any date in this case until Debtor Plasticon filed its’ Plan of Reorganization. Counsel for Debtor Plasticon would not discuss an alternative date for this or any other deposition in this case.
g. Pro Plas needs to complete this deposition prior to the final hearing on Pro Plas’ Motion for Relief from Automatic Stay.
7. a. Pro Plas denies the allegations in Sentence 1 of Paragraph 7 of the Motion to Quash.
b. Pro Plas denies the allegations in Sentence 2 of Paragraph 7 of the Motion to Quash.
c. Pro Plas denies the allegations in Sentence 3 of Paragraph 7 of the Motion to Quash.
d. Pro Plas denies the allegations in Sentence 4 of Paragraph 7 of the Motion to Quash.
e. Pro Plas admits the allegations in Sentence 5 of Paragraph 7 of the Motion to Quash.
f. Pro Plas denies the allegations in Sentence 6 of Paragraph 7 of the Motion to Quash.
g. Pro Plas denies the allegations in Sentence 7 of Paragraph 7 of the Motion to Quash.
h. Answering further, counsel for Pro Plas discussed more than two weeks ago the scheduling of 2004 exams with counsel for Debtor Plasticon and was informed that Debtor Plasticon would not agree to the scheduling of and would oppose the taking of any 2004 exams in this case.
i. Counsel for Pro Plas came to the conclusion that depositions would be more appropriate than 2004 exams in this case because one contested matter is presently pending in this case.
j. At the Meeting of Creditors on June 27, 2007, James N. Turek, Sr., refused to answer several questions including but not limited to:
(1) who owns the patents that Debtor Pro Mold uses in its daily operations? and
(2) who has a lien on the patents that Debtor Pro Mold uses in its daily operations?
k. The Meeting of Creditors was concluded by the Office of the United States Trustee.
8. a. Pro Plas denies the allegations in Sentence 1 of Paragraph 8 of the Motion to Quash.
b. Pro Plas denies the allegations in Sentence 2 of Paragraph 8 of the Motion to Quash.
9. a. Pro Plas denies the allegations in Sentence 1 of Paragraph 9 of the Motion to Quash.
b. Pro Plas denies the allegations in Sentence 2 of Paragraph 9 of the Motion to Quash.
c. Answering further, Pro Plas has only requested and received the Promotional Containers, Inc. Agreement for Purchase and Sale of Business Assets.
d. Answering further, Pro Plas has requested on several occasions a copy of the exhibits attached to the Promotional Containers, Inc. Agreement for Purchase and Sale of Business Assets in order to determine if Debtor Plasticon or James N. Turek, Sr., or another related entity purchased the patents of Promotional Containers, Inc. that Debtor Pro Mold currently uses in its business.
e. As of this date, Debtor Pro Mold and Debtor Plasticon have failed to produce those exhibits.
10. a. Pro Plas denies the allegations in paragraph 10 of the Motion to Quash and is shocked by the statement.
b. Counsel for Debtor Plasticon has made no attempt to resolve the instant discovery dispute and flatly refused to discuss dates and times for 2004 exams or depositions to be taken in this case.
WHEREFORE, Pro Plas respectfully requests that this Court enter its order denying the
Motion to Quash Notice of Deposition of James P. Toohey, authorizing the deposition of James P. Toohey to proceed on July 9, 2007 at 10:00 a.m. as noticed, or on another date and at another time that the Court believes would be appropriate and that James P. Toohey will be available and awarding Pro Plas its attorneys’ fees and costs incurred in this matter.
STONE, LEYTON & GERSHMAN
A Professional Corporation
By:
E. Rebecca Case, EDMO #2800
Howard S. Smotkin, EDMO #4407
Janice R. Valdez, EDMO #65355
7733 Forsyth Boulevard, Suite 500
St. Louis, Missouri 63105
(314) 721-7011
(314) 721-8660 Facsimile
erc@stoneleyton.com
hss@stoneleyton.com
jrv@stoneleyton.com
Attorneys for Pro Plas LLC
.
NOTICE OF HEARING
Please take notice that the foregoing shall come on for a telephonic hearing before the
Bankruptcy Court for the Eastern District of Kentucky, Lexington Division on July 5, 2007 at 10:00 a.m. or as soon thereafter as may be heard, at the United States Bankruptcy Courthouse, 100 East Vine Street, 3rd Floor Courtroom, Lexington, Kentucky 40507.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served
electronically in the method established under CM/ECF Administrative Procedures Manual and the Local Court Standing Order dated July 25, 2002, and to all parties listed below via facsimile, electronic and/or first class, postage prepaid U.S. mail on this 3rd day of July 2007.
E. Rebecca Case
John P. Brice
Daniel E. Hitchcock
Wyatt, Tarrant & Combs, LLP
250 W. Main Street, Suite 1600
Lexington, KY 40507
Robert Brown
Wyatt, Tarrant & Combs, LLP
250 W. Main Street, Suite 1600
Lexington, KY 40507
Gregory R. Schaaf
John W. Ames
Greenebaum Doll & McDonald, PLLC
300 W. Main Street, Suite 1100
Lexington, KY 40507
Rachelle C. Williams
Office of the United States Trustee
100 E. Vine Street, Suite 500
Lexington, KY 40507
Eric N. Assouline, Esq.
Assouline & Berlowe, P.A.
213 E. Sheridan Street, Suite 3
Dania Beach, Florida 33004
James P. Toohey
17141 Hidden Point Boulevard
Chagrin Falls, Ohio 44023 |
