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HomeMy WebLinkAbout11-5317Flrr-p-O F1CF rITRONOTARY COMMONWEALTH OF PENNSYLVANIA„ ,,, Z8 At ??; 40 COUNTY OF CUMBERLAND i.; c ... ..In rnlluTY WYO-BEN, INC., a Montana Corporation, V. Plaintiff, HARLAN BIXBY, MD, as Trustee of the 1995 Sepparate Property Trust; BRADLEY W. BIXBY; RYAN K. BIXBY; PARKER BIXBY; HAYDEN BIXBY; BEVERLY ZIEGLER; and JENNA ASHLEY, Defendants CASE NO.: f -S9I 1 01V1,( PETITION FOR LETTERS ROGATORY [Montana Thirteenth Judicial District Court, Yellowstone County, Cause No. DV-11-05681 Pursuant to § 5326 of the Pennsylvania Judicial Code and Rule 45 of the Montana Rules of Civil Procedure, Harlan Bixby, Bradley W. Bixby, Ryan K. Bixby, Parker Bixby, Hayden Bixby, Beverly Ziegler, and Jenna Ashley, defendants in Civil Action No. DV-11-0568 currently pending before the Thirteenth Judicial District Court for the County of Yellowstone, in the State of Montana, and captioned as Wyo-Ben, Inc. v. Harlan Bixby, et al. petition this Court for the entry of an Order directing the Prothonotary's Office of Cumberland County, Pennsylvania to issue a Subpoena Duces Tecum compelling Wade Kemp, 1,375 Baltimore Road, Shippensburg, PA 17257, to produce documents upon notice and in accordance with the laws of the State of Pennsylvania. In support thereof, Petitioners state as follows: 1. On or about April 12, 2011, Wyo-Ben, Inc. ("Wyo-Ben") filed its Complaint for Declaratory Relief against the Defendants seeking that the Montana Court declare that none of Defendants' Class B stock in Wyo-Ben was adversely affected by a recent amendment to a -E,SGD. pj 01? Cl?? IV' Wyo-Ben's Articles of Incorporation. Such declaration would prevent Defendants from exercising dissenters' rights and seeking appraisal with respect to their shares. 2. On or about May 25, 2011, Defendants filed their Answer, Counterclaim, and Jury Demand. Defendants' Counterclaim asserts a claim that the Wyo-Ben Board of Directors have engaged in oppressive conduct against the Defendants, in violation of § 35-1-938 and 939 of the Montana Code Annotated. 3. Pennsylvania Constitutional Statute § 5326 provides, in part, "[a] court of record of this Commonwealth may order a person who is domiciled or who is found within this Commonwealth to give his testimony or statement or to produce documents or other things for use in a matter pending in a tribunal outside this Commonwealth. The order may be made upon the application of any interested person ... and may prescribe the practice and procedure of the tribunal outside this Commonwealth, for taking the testimony or statement or producing the documents and other things." 4. Pursuant to the above-cited authority, Defendants seek the issuance of an Order directing the Prothonotary's Office of Cumberland County, Pennsylvania to issue a Subpoena Duces Tecum on Wade Kemp. 5. Wade Kemp is a member of the Wyo-Ben Board of Directors residing in Shippensburg, Pennsylvania. 2 6. The Defendants have identified Wade Kemp as a person with knowledge and documents relating to the matters addressed in Wyo-Ben's Complaint for Declaratory Relief and Defendants' Answer, Counterclaim, and Jury Demand. 7. Attached hereto as Exhibit 1 is the Subpoena Duces Tecum and Attachment A to the Subpoena to be served upon Wade Kemp. 8. Attached hereto as Exhibit 2 is a proposed Order to Issue a Subpoena Duces Tecum for consideration and entry by this Court. WHEREFORE, Petitioners Harlan Bixby, et al., respectfully request that this Court grant this Petition for Letters Rogatory to proceed with service of a subpoena duces tecum on Wade Kemp. Dated: June 27, 2011 DORSEY & WHITNEY LLP B Y Thomas P. wigert0266309) 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402 Tel: (612) 340-2600 Attorney for Petitioners 3 Exhibit sommow- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Plaintiff: WYO-BEN, INC., a Montana Corporation CASE NO.: V. SUBPOENA DUCES TECUM Defendants: HARLAN BIXBY, MD, as Trustee of the 1995 Separate Property Trust; BRADLEY W. BIXBY; RYAN K. BIXBY; PARKER BIXBY; HAYDEN BIXBY; BEVERLY ZIEGLER; and JENNA ASHLEY [Montana Thirteenth Judicial District Court, Yellowstone County, Cause No. DV-11-05681 To: WADE KEMP 1375 Baltimore Road Shippensburg, PA 17257 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: See ATTACHMENT A At: Prothonotary's Office, 1 Courthouse Square, Suite 100, Carlisle, PA 17013 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON(S): NAME: Thomas P. Swigert ADDRESS: 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402 TELEPHONE: (612) 340-2600 COURT ID: 0266309 (not admitted in Pennsylvania) ATTORNEY FOR: Defendants Harlan Bixby, et al. BY THE COURT: Date: Seal of the Court Prothonotary, Civil Division Deputy ATTACHMENT A INSTRUCTIONS 1. Responses shall include all documents and information, including electronic information, wherever found, that is in the custody or control of Wyo-Ben, Inc. or any of its officers, directors, employees, agents, attorneys, and affiliates. 2. All documents shall be produced in the order and in the manner which they are kept in the usual course of business or organized and labeled to correspond with the categories in this request. All electronic documents shall be produced in their native format and include all metadata or any other information that is naturally associated with the electronic document. All hard-copy documents shall be produced in their original file, folder, binder, cover or container whenever possible. Any document which must be removed from its original file, folder, binder, cover or container to be produced shall be identified in such a way as to clearly specify the place from which it was so removed. a. If any privilege is claimed with respect to any document requested, please provide a privilege log that states: b. Its nature (e-, letter, memorandum, report, etc.); c. The date it bears or, if undated, the date it was written or created; d. Its author; e. The identity of each of its recipients; f. Its general subject matter; g. Its present or last known location or custodian; and h. The privilege claimed and the basis therefore. 3. If any document that was in the possession, custody, or control of any of the Plaintiffs has been lost or destroyed, please state: a. The source and content of the document; b. Its present or last known location or custodian; c. The date on which the document was destroyed or known to be lost; and d. The reason for its destruction. 4. Whenever appropriate in this request, the singular form of a word shall also be interpreted as plural, and the plural form of a word shall also be interpreted as singular. The words "and" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring information within the scope of the production request. 5. Unless a request calls for a specific date, or otherwise indicates directly or by its context that a different time period is called for, respond to each request without time limit. DEFINITIONS 6. "Bixby Family" or "Bixbys" shall refer to Defendants, Harlan Bixby, MD, as Trustee of the 1995 Separate Property Trust, Bradley W. Bixby, Ryan K. Bixby, Parker Bixby, Hayden Bixby, Beverly Zeigler, and Jenna Ashley. 7. "Board of Directors" shall mean the Board of Directors for Wyo-Ben, Inc. 8. "Communication" means any transmission of words or thoughts between or among two or more persons, whether written, oral, electronic, or otherwise, including email, text, instant messaging, social media, correspondence, memoranda, handwritten notes, tape recordings, and digital recordings. 9. "Company" or "Wyo-Ben" means Wyo-Ben, Inc. and all of its officers, directors, employees, agents, attorneys, and affiliates. 10. "Document' shall refers to the original and all non-identical copies, reproductions, and drafts of any hard-copy or electronically stored information including email, text, instant messaging, and social media, correspondence, memoranda, handwritten notes, tape recordings, and digital recordings known to you or in your possession, custody, or control, including but not limited to: a. All letters, correspondence, memoranda, telegrams, writings, instructions, calendars, desk books, records, reports, charts, studies, surveys, speeches, pamphlets, notes, drafts, proposals, minutes of meetings, microfiche, microfilm, drawings, audiotapes, audio-visual tapes, books, papers, computations, tabulations, accounting records, inter-office and intra-office communications, electronic mail communications, schedules, lists, specifications, ledgers, journals, diaries, checks, records, recordings or memoranda of conversations or any other written, printed, typewritten or other graphic or photographic matter or tangible thing on which any words or phrases are affixed, all mechanical, electronic sound or video records or transcripts thereof, all magnetic records or matter existing in any other machine-readable form, however produced or reproduced, tape or other voice records of conferences, telephone conversations, or other communications and drafts of any of the foregoing; and b. Any electronically stored information including email, text, instant messaging, social media, digital recordings, computer software, data, files, disks, diskettes, and tapes, and any hard copies of the information stored thereon. The term "Document" shall also include copies of such documents upon which appear any initialing, notation, or handwriting of any kind not appearing on the original, whether such documents were prepared by agents or representatives of the parties for their own use or for transmittal in any manner, or were received by them. The term applies to documents wherever located, whether in the files of any agent or representative of the parties or in any file whatsoever in the possession or direction or control of the parties, their agents, representatives, or any other person retained by the parties. 11. "Person" means natural persons, corporations, partnerships, governments or agencies thereof, proprietorships, joint ventures, trusts, estates, and all other forms of legal entity. 12. "Reclassification" shall mean Wyo-Ben's change of its Class B shares from non-voting shares to voting shares. 13. "Relates to" and "relating to" mean evidences, reflects, constitutes, refers to, contradicts, supports, or in any other way is logically or factually connected to the matter discussed. 14. "Resolutions" shall mean the resolutions presented to Wyo-Ben's shareholders at Wyo-Ben's February 18, 2011 shareholder meeting. 15. "You" or "your" means the party responding to these requests , and all persons acting on their behalf, including, but not limited to, their agents, investigators or attorneys. REQUESTS FOR DOCUMENTS All Documents referring or relating to Wyo-Ben, Inc. 2. All Documents reflecting any handwritten, typewritten, or electronic notes relating to Wyo-Ben, including notes relating to any Company minutes, meetings, Board member packets, presentation materials, or your preparation for any call, meeting, or communication relating to Wyo-Ben. 3. All email, text messages, instant messages, or any other electronic transmission relating or referring to Wyo-Ben whether communicated to other board members, officers, employees, or agenst of Wyo-Ben or any other person. 4. All presentation or other materials provided to you as a member of Wyo-Ben's Board of Directors. 5. All contracts or agreements between you and Wyo-Ben or any of its officers, employees, agents, or affilliates. 6. All Documents and Communications, including email, relating or referring to the Resolutions. 7. All Documents and Communications, including email, relating or referring to any potential claim for dissenters' rights by any member of the Bixby Family. 8. All Documents and Communications, including email, relating or referring to the Reclassification, including, but not limited to, the reasons therefore. 9. All Documents and Communications, including email, relating or referring to any negotiation or potential negotiation with the Bixby Family regarding the Reclassification. 10. All Documents and Communications, including email, relating or referring to the impact of the Reclassification on any of Wyo-Ben's shareholders. 11. All Documents and Communications relating or referring to any valuation performed for the Company from the year 2000 to the present. 12. All Documents and Communications, including email, relating or referring to the difference in value between Class A shares and Class B shares. 13. All Documents or Communications, including email, relating or referring to dilution in voting power for any shareholders as a result of the Reclassification. 14. All Documents and Communications, including email, relating or referring to Hayden Bixby, including, but not limited to, Documents and Communications relating or referring to removing Hayden Bixby from the Board of Directors or otherwise limiting her involvement with the Board of Directors or with the Company. 15. All Documents and Communications, including email, relating or referring to Harlan Bixby. 16. All Documents and Communications, including email, relating or referring to compensation of officers and directors at Wyo-Ben from the year 2000 to the present. 17. All Documents and Communications relating or referring to the Executive Compensation Committee and/or the Interim Compensation Committee. 18. All Documents and Communications, including email, relating or referring to the Wind River partnership. 19. All tape or other recordings of meetings of the Board of Directors. 20. All Documents and Communications, including email, relating to the Company's Articles of Incorporation and By-Laws including redrafting of same. 21. All Communications with the Company's auditors and accountants from the year 2000 to the present. 22. All Documents referring or relating to the Company's future strategic plans from the year 2010 to the present. 23. All Documents reflecting analyses of the Company's sales, revenue, expenses, debt, cash flow, income, capital expenditures, working capital, or other financial information from the year 2000 to the present. Exhibit 2 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WYO-BEN, INC., a Montana Corporation, Plaintiff, v HARLAN BIXBY, MD, as Trustee of the 1995 Separate Property Trust; BRADLEY W. BIXBY; RYAN K. BIXBY; PARKER BIXBY; HAYDEN BIXBY; BEVERLY ZIEGLER; and JENNA ASHLEY, Defendants. CASE NO.: ORDER This matter coming to be upon the Petition for Letters Rogatory of Harlan Bixby, et al.; IT IS HEREBY ORDERED that the Prothonotary's Office of Cumberland County, Pennsylvania issue a Subpoena Duces Tecum for use in a case pending in the Thirteenth Judicial District Court for the County of Yellowstone, in the State of Montana, Civil Action No. DV-11-0568, captioned Wyo-Ben, Inc. v. Harlan Bixby, et al., commanding Wade Kemp to produce the information described in Attachment A to the Subpoena Duces Tecum within 20 days after service of the subpoena. SO ORDERED this day of , 2011. District Judge, Ninth Judicial District of Cumberland County, Pennsylvania 5 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WYO-BEN, INC., a Montana Corporation, ) CASE NO.: - Plaintiff, ) -V:x -- =rn HARLAN BIXBY, MD, as Trustee of the 1995 Sepparate Property Trust; BRADLEY ) vc-? 3 W. BIXBY; RYAN K. BIXBY; PARKER r=° BIXBY; HAYDEN BIXBY; BEVERLY ) W ZIEGLER; and JENNA ASHLEY, ) -.c u Defendants. ) ORDER C? M, -ern mac, a? as This matter coming to be upon the Petition for Letters Rogatory of Harlan Bixby, et al.; IT IS HEREBY ORDERED that the Prothonotary's Office of Cumberland County, Pennsylvania issue a Subpoena Duces Tecum for use in a case pending in the Thirteenth Judicial District Court for the County of Yellowstone, in the State of Montana, Civil Action No. DV-11-0568, captioned Wyo-Ben, Inc. v. Harlan Bixby, et al., commanding Wade Kemp to produce the information described in Attachment A to the Subpoena Duces Tecum within 20 days after service of the subpoena. /, l SO ORDERED this V day of ?ill?l?f 2011. -77icM415 1P J District Judge, Ninth Judicial district of Cumberland County, Pennsylvania elle