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HomeMy WebLinkAbout05-0103DRINKER BIDDLE & REATH LLP Joseph C. Holden Identification No.: 88604 One Logan Square 18th and Cherry Streets Philadelphia, PA 19103-6996 (215) 988-2700 (215) 988-2757 (facsimile) j oseph.holden@dbr, com Attorneys for Plaintiff Royal Indemnity Company CAUSE NO. ROYAL INDEMNITY COMPANY, Plaintiff, VS. T.E. MOOR & CO., DELTA CAREER INSTITUTE OF BEAUMONT, INC., MPIII HOLDINGS, INC., STUDENT MARKETING SERVICES, LLC, STUDENT LOAN SERVICING, LLC AND COASTAL COLLEGE Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NINTH JUDICIAL DISTRICT PETITION OF PLAINTIFF, ROYAL INDEMNITY COMPANY, FOR AN ORDER FOR THE ISSUANCE OF A SUBPOENA TO ATTEND AND TESTIFY TO KEITH ARMBRUST Plaintiff Royal Indemnity Company ("Royal"), by and through its undersigned counsel, Drinker Biddle & Reath LLP, based on a Commission and a Letter Rogatory from the District Court of Jefferson County, Texas, and pursuant to 42 Pa. C.S.A. § 5326 and Pa. R. Civ. P. No. 4007.1, petitions this Honorable Court for an order directing the Prothonotary to issue a subpoena to Keith Armbrust that compels him to appear and give testimony by deposition on oral examination. Due to impending case management deadlines in the Texas action of January 21, 2005 and a discovery end date of February 8th, 2005 Royal respectfully requests that this petition be expedited. In support of this petition, Royal states: I. FACTUAL BACKGROUND. 1. A lawsuit with the above-styled caption is currently pending in Jefferson County, Texas, Cause No. D167370. In that lawsuit, Royal alleges that Defendant MP III Holdings, Inc. ("MP III") was engaged in a fraudulent tuition loan scheme with Student Finance Corporation ("SFC") and its affiliates. The purpose of the scheme was to use the student loan business of SFC and the trucking school business of MP III jointly to generate enormous sums o£money by making as many tuition loans as possible, regardless of their credit risk, and by pretending the loans were performing, when they actually were not. Many of the loans were fraudulent; many of the students who borrowed were unqualified to ever drive trucks; many o£the borrowers were unwilling or incapable of repaying the loans; and many of the purported payments on the supposedly-performing loans were actually made by SFC and MP III themselves -- and not by the student-borrowers. 2. Royal is an insurance company which insured the loans made by SFC to MP II! students. As part of the ongoing discovery in this complex lawsuit, Royal would like to depose Keith Armbrust, a high-ranking former employee of MP III. Mr. Armbrust is unquestionably in possession of knowledge critical to this case. II. THE WITNESS HAS KNOWLEDGE OF RELEVANT FACTS 3. Mr. Armbrust is believed to be a resident of Cumberland County, Pennsylvania. At one time, he was a high-ranking employee of Defendant MP III. MP III made fraudulent payments on the loans. SFC then turned around and represented to Royal (and the investors) that the payments had in actuality been made by the borrowers -- thereby creating the false impression that 2 the loans were self-supporting with borrower payments and were performing well. This is one of the critical frauds which SFC and MP III are accused of perpetrating. 4. Mr. Arrnbrust was Chief Financial Officer for MP III during the time it conspired with SFC. Mr. Armbrust is listed by MP III as a person with knowledge of facts relevant to this lawsuit. 5. There is good cause to believe this witness has knowledge of facts relevant to the subject matter of the pending action, and that he may also have knowledge of information that is reasonably calculated to lead to the discovery of admissible evidence. Taking his testimony by deposition on oral examination will promote the just, fair, equitable, and impartial adjudication of the fights of the litigants in this action. 6. Mr. Armbrust's address is: 1776 S. Meadow, Mechanicsburg, PA 17055. IlL PENNSYLVANIA LAW 7. The Pennsylvania Judicial Code and Pennsylvania Rules of Civil Procedure give the Court the power to assist tribunals and litigants located outside the Commonwealth of Pennsylvania in taking depositions of people residing in the Commonwealth. 42 Pa. Cons. Stat. § 5326(a); Pa. R. Civ. P. 4007.1(a)(f). This case is just such a situation. If the subpoena is not issued, this critical witness will never be examined and facts at issue in this lawsuit will never be discovered. IV. TEXAS PROCEDURAL HISTORY 8. Plaintiff filed a Motion for Issuance of Letters Rogatory with the District Court of Jefferson County, Texas 58th Judicial District, Judge Mahaffey Presiding. (See attached Exhibit "A"). Presented with that motion were Letters Rogatory. (See attached Exhibit "B"). Judge Mahaffey signed those Letters Rogatory on December 17, 2004. (Exh. "B"). The court concluded that, "the taking of [Keith Armbrust's] testimony by deposition on oral examination would promote the just, fair, equitable, and impartial adjudication of the fights of the litigants in this action." (Exh. "B"). That request mistakenly identified Mr. Armbrust as residing in Dauphin County when, in fact, he resides in Cumberland County. The court went on to request the Court of Common Pleas of Dauphin County, Pennsylvania to issue any additional or supplemental orders as necessary to secure the deposition ofKeith Armbrust. (Exh. "B"). The court also issued a Commission to take an in or out of State Oral Deposition ofKeith Armbrust. (See attached Exhibit "C"). Attached to this Petition is Plaintiff Royal Indemnity Company's Notice of the Oral and Videotaped Deposition of Keith Armbrust (Exhibit "D"). 9. The undersigned was advised on January 4, 2005 by the Second Deputy of the Prothonotary's Office of the Cumberland County Court of Common Pleas to insert Cumberland County on the Letters Rogatory and Commission for this filing. V. DATE OF DEPOSITION 10. Royal originally requested that this deposition occur on January 6, 2005 at 1:00 p.m.. However, the issuance of the Texas Letters Rogatory took longer than anticipated and a later date for the deposition is necessary to ensure that the witness receives reasonable notice as required by Pennsylvania law. Therefore, Plaintiff requests the Court to set the deposition of Mr. Armbrust on January 19, 2005 at 1:00 p.m.. The deposition will be taken at the location as listed on the notice of deposition attached hereto (Harrisburg - Hershey Crown Plaza Hotel, 23 South Second Street, Harrisburg, PA 17101). Impending case management and discovery deadlines in the Texas action necessitate that the deposition of Mr. Armbrust take place by no later than January 20, 2005. 11. Plaintiff has disclosed the full text of the instant petition and proposed order to all other parties by facsimile transmission. The concurrence of opposing counsel of record was sought 4 and obtained from: Gerald Flatten, Esq., counsel for Defendants Student Marketing Services and Student Loan Servicing LLC (although not opposing issuance of subpoenas, counsel indicated his clients do not concur with the factual allegations in motion); Cornelius R. Heusel, Esq., counsel for Defendant Coastal College. Defendant Delta Career Institute of Beaumont has defaulted in this matter. Attempts to reach them at their last known telephone/facsimile contact information were unsuccessful. The concurrence of opposing counsel of record was sought and denied by: Milind Shah, Esq., counsel for Defendant MP HI Holdings, Inc.. VI. PRAYER WHEREFORE, Plaintiff Royal Indemnity Company respectfully requests that this Court enter an order, pursuant to section 5326(a) of the Pennsylvania Judicial Code and Rule 4007.1 (f) of the Pennsylvania Rules of Civil Procedure, for the issuance of a subpoena to Keith Armbrust to appear and give testimony by deposition on oral examination for use in this matter, and for such other relief, both general and specific, to which Plaintiff may be justly entitled. Respectfully submitted, DRINKER BIDDLE & REATH LLP By: ,/ffOSpl~i/tJ. Holden J St~tte"Bar No. 88604 ,/ C)h.e Logan Square ~.,.~8th and Cherry Streets Philadelphia, PA 19103 Telephone: (215) 988-2700 Facsimile: (215) 988-2757 joseph.holden~dbr.com Attorneys for Royal Indemnity Company 5 AS OF COUNSEL: Michael H. Barr Alan S. Gilbert Daniel D. Bamowski Sonnenschein Nath & Rosenthal LLP 1221 Avenue of the Americas New York, NY 10020-1089 Telephone: (212) 768-6700 VERIFICATION I, CHRISTOPHER A. BENSON, am Vice President and Assistant General Counsel for Royal Indemnity Company, plaintiff in the above action. I am authorized to make this verification on behalf of Royal Indemnity Company. The averments made in the preceding request for issuance of a subpoena are true and correct to the best of my knowledge, information and belief. I understand that false statements are subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsifications to authorities. Date: January 5, 2005 NS CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 208.3(a) I, Joseph C. Holden, hereby certify that Plaintiff Royal Indemnity Company has disclosed the full text of the petition and the proposed order to all other parties by facsimile transmission and that: Dated: Concurrence to the petition and proposed order has been given by: Defendants Student Marketing Services and Student Loan Servicing LLC, by their counsel Gerald Flatten, Esq. (although not opposing issuance of subpoenas, counsel indicated his clients do not concur with the factual allegations in motion) Defendant Coastal College, by their counsel Cornelius R. Heusel, Esq. Defendant Delta Career Institute of Beaumont has defaulted in this matter. Attempts to reach them at their last known telephone/facsimile contact information were unsuccessful. Concurrence to the petition and proposed order has been denied by: January 6, 2005 Defendant MP III Holdings, Inc., by their counsel Milind Shah, Esq. CERTIFICATE OF SERVICE I, Joseph C. Holden, hereby certify that today, I caused a true and correct copy of the foregoing Petition for Issuance of a Subpoena to Attend and Testify to be served, via facsimile and first class U.S. mail, postage pre-paid, upon the following: Delta Career Institute of Beaumont, Inc. 1310 Pennsylvania Avenue Beaumont, TX 77701 Pro Se Gerald R. Flatten, Esquire Rienstra, Dowell & Flatten San Jacinto Building 595 Orleans, Suite 1007 Beaumont, TX 77701 Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC Elizabeth Witmer, Esquire Saul Ewing LLP 1200 Liberty Ridge Drive, Suite 200 Wayne, PA 19087-5569 Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC Milind Shah, Esquire Alan K. Cotler, Esquire Andrew Hoppes, Esquire Reed Smith 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7301 Counsel for Defendant MP III Holdings, Inc. Kent W. Robinson, Esquire Jeffrey D. Migit, Esquire Andrews & Jurth 600 Travis, Suite 4200 Houston, TX 77002 Counsel for Defendant MP III Holdings, Inc. Tara G. Richard, Esquire Cornelius R. Heusel, Esquire Patrick J. Veters, Esquire Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP 201 St. Charles Avenue New Orleans, LA 70170-5100 Counsel for Defendant Coastal College, Inc. R. Kelly Donaldson, Esquire Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP Waterway Plaza Two 10001 Woodloch Forest Drive, Suite 350 The Woodlands, TX 77380 Counsel for Defendant Coastal College, Inc. Dated: January 6, 2005 Holden CAUSE NO. D167370 ROYAL INDEMNITY COMPANY, § Plaintiff, § T.E. MOOR & CO., et aL, § Defendants. § IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS 58TH ,IUDICIAL DISTRICT PLAINTIFlOS MOTION FOR ISSUANCE OF LETTERS ROGATORY TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to Rule 202 of the Texas Rules of Civil Procedure, Plaintiff, Royal Indemnity Company, requests that thc Court issue Letters Rogatory directed to the pauphin ~Vuuty~_urt of Common Pleas in Dauphin County, Pennsylvania, rcquestlng that }~l~c..t)auphin ~C:~unty C. ~urt Pleas order Michcle gtanislawski and KeRb Armbrust to~3i.~I~..ar' and glt~ testi?ll ,~y of Common ....... by deposition on oral examination for use m this matter, and In suppor~ ~f ~his mot~0ff:shows: . L RELEVANT FACTS co Like the other Irucking-school dcfendan~ in tiffs lawsuit, Defendant MP III Holdings, Inc. C'MP I~) was engaged in a separate fraudulent tuition loan scheme with Student Finance Corporation and its affiliates. The purpose of each of those separate schemes was to use. the student loan business of SFC and the tmcMng school business of thc ~ucking school defendants jointly to generate enormous sums of money by making as many tuition loans as possibl~, regardless of their credit risk, and by pretending the loans were performing, when they actually were not. Many of the loans were fraudulent, many of the students who borrowed were unqualified to ever drive trucks, many of the borrowers were unwilling or incapable of repaying the loans, .and many of the purported payments on the supposedly-performing loans were actually made by SFC and the tracking schools themselves--and not by the student-borrowers. II, THE WITNF.~gSES HAVE KNOWLEDGE OF RELEVANT FACTS The witnesses to be deposed ar~ Michele Stanislawski and Keith Anubrust, both of whom are believed to be resideuts of Dauphin County, Pennsylvania. Ms. Sianislawski and Mr. Anubrust were employees of MP HI. Ms. Stanislawski was an MP HI accountant. Among other things, she was in charge of MP lips program of making initial student loan paym~nis to SFC, which made it appear to investors as if the loans were performing. She was also MP Hl's contact person with SFC. Mr. Annbmst was CFO for MP HI during the time it conspired with SFC as dc.scribed above to defraud Plaintiff Royal Indemnity Company. MP III has listed both Ms. Stanislawski and Mr. Annbrust as persons with knowledge of relevant facts. There is good cause to believe these witnc.sse, s are pcrsons with knowledge of facts that arc relevant to the subjcct matter of the pending action, and that they may also havc knowledge of information that is reasonably calculated to Icad to the discovery of admissible evidence. Taking their testimony by deposition on oral examination would promote the just, fair, equitable, and impartial adjudication of the rights of the litigants in this action. IV. PENNSYLVANIA LAW The Pennsylvania Judicial Code and Pennsylvania Rules of Civil Procedure provide for assistance to tribunals and litigants outside thc Commonwealth of Pennsylvania with respect to depositions. 42 Pa. Cons. Stat § 5326(a) (LEXIS through Act 68 of thc 2004 Legislative Session); Pa. R. Civ. P. 4007.a(f). True and correct copies of section 5326 and rule 4007.1 are attached to this motion as Exhibit A. V. PRAYER WHE~ORE, premises considered, and pursuant to Pule 202 of the Texas Rul~ of Civil Procedure, Plaintiff Royal lndemn/ty Company asks this Court to request, via Letters Rotatory, that the Court of Common Pleas, Dauphin Cotmty, Pennsylvania, pursuant to section 5326(a) of the Pennsylvania Sudicial Code and Rule 4007.1(f) of the Pennsylvania Rules of Civil Pwcedure, assist this Cotul in serving the interest ofjuslicc by ordering Michele Stanislawski and Keith Annbmst to appear and ~ive testimony by deposilion on oral examination for use in this matter, and for such other relief, both general and specific, to which Plaintiff may be justy entitl~i. Respectfully submitted, WRIGHT BROWN & CLOSE, LLP Harvey t3. Brown, Jr. State Bar No. 03130500 Howard L. Close Stat~ Bar No. 04406500 Three Riverway, Suite 600 Houston, Texas 77056 Tdcphone: (713) 572-4324 Facsimile: (713) 572-4320 brown(~wri~tbro~closc.com close~wri§htbrownclose.com AS OF COUNSEL: Michael H. Bmr Alan $. Gilbert Daniel D. BamowsM Sonnenschein Nath & Rosenthal LLP 1221 Avenue of the Americas New York, NY 10020-1089 Telephone: (212) 768-6700 Facsimile: (212) 768-6800 Attorneys for Royal Indemnity Company CERTXF!CATE OF SERVICE [ hereby certify that a tree and correct copy of.the abo~eralad foregoing instrument has been forwarded to all counsel of record onthis the I~'~day of ]~)t~'.~ J~io~.- . . 2004. EXHIBIT A TO PLAINTIFP'S MOTION FOR ISSUANCE O1: LETTERS ROGATORY Page i I of l DOCUMI~NT PI~NNSYLVANL~ ~ Of~ COURT THIS DOCUMENT IS CURRENT TI~OUGH AMENDMENTS RECEIVED .lilLY 7, 2004 * PElgNSYLVANIA RULF,$ OF ~ PROC~D'I~ DEPOSITIONS AND DISCOVF. RY R~wi~w Court Orders which may amend this Page. Rule 4007.1. P~oc~ur~ in Deposition By Oral Examination (a) A party designs to take the deposltio~ of any pt~'son upon oral commination shall ~ reasonable notice in writing to evet~* other party to the action, except that no notice need bo ~tven a defendant who was served by publication and has not appeared in the action. A pury noticed to be deposed shall be ~quimd to appear without subpoena. ~) The notice shall conform with the requirements of subdi~l~iolt {c) of this Pule and of Rule 4007.2(b) and (c) wh~'vc approprlat~ and shall state the gme and place of taking tbs deposition and the name and address of each person to bo examined ff known, and, if th~ name is not known, a general description sufficient to identify him or the panicul~ class or group to wMch he bclonp, s. Note: The court upon cause shown may m~e · protective order with respect to the time and place of taldng thc deposition. ~ Rule 4012. (c) The purpose oftbe deposition and matters to be inquL-~d into nerd not be stated in thc not~ unless the action has bean comn~nccd bywfit of summons and the plaintitf desires to take the dcpoaltion ofanypcrsou upon oral examination for the propose ofp~aafing a complai~tt. In such case thc notice shill includ~ a brief st~temettt of the nature of th~ cause of al:tlon arid ofthe matters to I~ hlqulr~d illin. (d)(l) If the person to be examined is a pan'y, the notlcc may include a request made in compliance with Rule 4009. I et see,. for the production of documents and tangible thinss at the ~alclng of the deposition. (2) If the ~son to bo ex·mined is not · party, and is to be served with a subpoena duces tatum to produce desl~mtcd materials, the notice shall specify the materials to bo pwdu~ed, Thc materials shall be produced a~ the deposition and not earlier, except upon the censent nfall parges to the action. (e) A party may in his notice and in a subpoena, ffissued, name as the dc'ponent a puMic or private corporation or · partnership or m,'suclation or govcmmen~l a~u~y and describe with texsor~ble particul~4ty th~ matters to bo inquired into end the materials to be produced, hi that event, thc organization so named sh~! serve a designation of nun or more officers, directors, or manN~ing agents, or other pc~ons who consent to lCSflfy on its hah·If, and may set forth, for each pet'soo designated the matters on which he will testify. A subpoena shall advise a non paffy organization of its duty to make such · designation. The person or pecans so designated shall testify as to matters Imown or reasonably ·vailable to the otzanization. This subdivision (e) does not preclude taking a deposition by any other procedure authorizad in these rules. (t) An application for an order pursuant to S$cllon $3116(a) of the Judicial Code may be filed only in thc county in which the person who is the subject of the order resides, is employed or ~cgninrly uansacts business in person. NOTE: Section 5326 of the Judicial Code, 42 P~ C.,~ .~ $$26, a part of the Uniform Interstate and international Pw~r, dm Act, provklcs for ~s$istancc to tn'blmals and litigants outside the Conunc~wealth. Pa. R.C.R No. 4007.1 Pa~ 2 w~ ~ ~ ~ ~ ~t so ~ ~ ~ who h ~ ~bj~ of ~ o~ i~ ~ A ~ d~e ~ld nm ~ m ~v~ ~ ~ m ~j~ m ~ order LEXSTAT 42 PACODB $326 PENNSYLVANIA STATUTES, ANNOTATED BY LEX~S~) THIS SECTION IS CURRENT THROUGH ACT 68 OF ~ 2004 LP. GISLATIVE ~E$SXON * "* W{~ ~tc~pt{u~s ns d~aUed in ~ Ouline Produ~ Gu{de *** '** NOVEI~I~R 2004 ANNOTATION SERVIC~ **' PENNSYLVANIA CONgOLIDATED STATUTES 'ITI'LH 4:L JUDICIARY AND JUDICIAL PART VI, ACTIONS. FAOCEI~DINOS AND OTHI~ MATFEP, S GENERALLY ~. ~ASP~ O~ rORISDICT~ON AND INTERST~ AND INTEIhRL%TIONAL ?ROCEDUP~ EUBCHAPTER B. [NTEP.N'TAT~ ANO INTBRNATIONAL PROCEDUP~ GO TO CODE ARCHIVE DIRgCTORY FOR THIS ~JRI~DICTION § 5326. Assistance to m'b~nals sud littgams outside ~ Commonwealth with re~pe~t to depos{tion~ (a) GEN]EKAL RULE.--A court ofrecord of ~h Commonwealth mst o~ m ~n who ~ d~icil~ ~ ~ f~nd ~ ~ a ~ ou~d~ ~ Co~w~. ~e ~= m~ be ~de ~n ~ applJ~on of~y ~tcd pmon or ~ ~nse to ~ I~ m~mU ~d may p~ p~ ~d ~ of~e ~d ~n~ ~ o~ ~. ~ ~e ~nt s~m~ be g~ or d~t or o~ ~ng ~ ~f~ a ~ ~t~ by ~ cou~ ~ p~on appoin~d shaft ~ p~ ~ a~i~r any ~ (b) VOLUNTARY CO]~IANCE.--A person within this Commonwealth may voluntarily give his testimony or s~ttcment or produce documents or other thin~ for use in a matter before a tn'burial outsid~ this Commonwealth. LexisNcxis (R.) Notes: CASE NOTES 1. Trial court allowed Chilcan fenner to issue subpoena duces teeum to non-pony Pennsyl~nin company putsuent to 42 Pa, Co~. Stat. ,inn. ~ ~326 whom the court received Le~rs Rogatory that were issued by tho Chilcnn Supreme Court over the slgnatttm Of five Justices. ~,uljada ~ f. lnlfr~tlti of /lmerico, Inc., ]2 t~ D. & ~ 4th 225, 22 PIdla. 339. 199l Philo. C~. ~ LmClS 4$ (Po. C~.. 2. THe{ cou~ allowcd Chilcnn farmcr to ~e ~cna ~. te~m to no~p~ Pc~lv~ia ~mp~y p~t ~ ~2 ~ ~. Stat. ~n~ ~ ~325 wh~ ~c co~ ~ci~d L~ Ro~ ~t w~ J~ by ~ ~il~ Supine Court o~r ~e si~ ~ five j~. ~tt~ ~ Un~tti of ~mer~ca, ln=, 12 Pa. D. & C. 4tit ~5, 22 Phila. ~39, 1991 PhHa. C~. ~t~ ~S ~3 ff~ CE 1990. 42 Ps.C:.$. § 5326 Page2 I. ~=9.9 Dun/ol~-Hmma Penr~ania Forms Form 99.03-9, FAMILY LAW, Discovery Proceedings, Plaintif~s Motion Direclin~ County Corm to Issu~ Subpoena Process Ov~ Witness, Dunlap-Hanna Pennv/Iva~ Forms. 2. PJ...E. DI~7.0FE. R~'.dA~D DEPOLv~YOAr~ 61, Pennsytvank Law En~'yclopedia. VOLUME 2lc, § 61 In Oenerni, Copyrtsht 2003, Matthew 9~ndet &: Company, Int,, · member of the LexisNexls Ortmp 3. P.L~'. DJ~or~rat~D Dr. Pos/r/o~v's~ ss, Penn~vnnia ratw ~o~opodia, VOLU~ 2lc. ~ 6S ~enons boro~ Whom Depositions May Be Taken. Copydght 2003, Matthew ]Eleadet & Company, Zn~., a membr, t of the LexisNexis Oroap CAUSE NO. D167370 ROYAL INDEMNITY COMPANY, Plaintiff, vs, T.E. MOOR & CO., et al., Defendants. IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS $8TH JUDICIAL DISTRICT LETTERS ROGATORY TO: THE COURT OF COMMON PLEAS, DAUPHIN COUNTY, PENNSYLVANIA It appears to this Court that non-parties Michele Stanislawski and Keith Annbrust are persons with knowledge of facts that are relevant to the subject matter of the pending action, and that they may also have knowledge of information that is reasonably calculated to l~ad to the discovery of admissible evidence. Therefore,, this Court concludes that taking their testimony by deposition on oral examination would promote the just, fair, equitable, and impartial adjudication of the rights of the litigants in this action. Ms. Stanislawski and Mr. Armbmst are residents of Dauphin County, Pennsylvania.~ Pursuant to section 5326(a) of the Pennsylvania Judicial Code, and Rule 4007.1(0 of the Pennsylvania Rules of Civil Procedure, this Court requests that the Dauphin County'Oourt of Common Pleas assist this Court in serving the interest of justice by ordering Michele Stanislawski and Keith Armbrust to appear and give testimony by deposition on oral examination for use in this matter. I CERIIF¥ IHIS AS A I'RUE COPY Witness my Hand and Seal of Office DEC 2 1 ZOO4 LOLITA RAMOS, DISTRICT CLERK JEFFERSON COUNTY, IF×AS .'r. ,/:~ FILV.. at ~'. ~X~ o'clock DEC ! '/ 2004 LOLITA RAMOS This Court also requests that the depositions on oral examination be conducted wholly pursuant to the Texas Rules of Civil Procedure, and at the time and place set out in the attached notices of deposition of Michele Stanislawski and Keith Armbrust. This Court further requests that the Court of Common Pleas of Dauphin County?Pennsylvania issue any and all additional or supplemental orders necessary to s~ure the depositions of Michele Stankslawski and Keith Armbrust. This Court is ready and willing to extend the same courtesies t~ the Commonwealth of Pennsylvania. Signed ~~x'~" c........k..~ ,t k.':~ ,2004. . / Pres~/~' I CERTIFY THIS AS A TRUE COPY Witness my Hand and Seal of Office DEC 2 1 2004 556-COMMISSION TO TAKE IN OR OUT OF STATE - WRITTEN INTERROGATRIES - SUBPOENA/SUBPOENA DUCES TECUM - Either Court (Rev. 62) THE STATE OF TEXAS~ ~/~j~_/~/ ~ .~ To the Clerk of the District Court, Judge or Clerk of the Couuty~ourt, or any official Distr' t Court Reporter or shy Notary Public in and for the County of Dauphik~.County, Btate of Peml. sylvan4a --GR~3~ING: * TO say Clerk or Court of Record having u Seal; any Notary Public, er any Commissioner of Deeds, duly appointee u ........ c ,awn u, J.exas. for the State of T~as, within u~d for the Co~uty of Jetta State nfTex~ * To any notary public or any minister, commissioner or charge d'offalre~ of the United States resident, and accredited to Or any eonsut-~eeerni, consul, vice-consul, commercial agent, viee-commerelo! agent, deputy consul or consular agent of the United States residing in said countT. * To any Commissioned Officer ia the Armed Forces of the United States of AmerJco, in the Auxiliaries thereto, or to any Commissioned O~cer ia the Armed Force Reserve ol'the United States of America, or &ny Auxiliary thereto. YOU, or either of you, are hereby authorized to Lrnme&ately issue and cause to be sex,ed upon Mr. Keith Armbrust and Ms. Michele Stanlslawski whose address is See attached letter from attorney, a subpo~a duces tecum to come before you on the 6th day of January, 2005, at (see attached notice) 10:00 am and 1:00 pm o'clock M., at Harrisburg-Hershey Crowne Plaza Hotel, 23 South Second St. in the City of Harrbburg, PA, County, Texas, and that you then and there take his and her answers, under oath to the attached copies of dLrect Oral and Videotaped Interrogatories, a copy of which is attached to this commission, and that you return the sam~ without dehy to the Clerk of this Court, as herein provided. Said witness shallbring with him and her and producc at the above dcsignated time and place for taking his answer to the Interrogatories abovc rncntioncd, the following designatcd books, papers, documents and tangible things, to wit: * see attached motion Said Interrogatories shall be taken and returned as follows: I. That you reduce his and her hOral and Videotaped answers so taken to writing in proper form and cause the same to be subscribed and sworn by said witness es. 2. That you certify under your hand and seal of office, that said answers were sworn to and subscribed before you. 3. That you seal up in an envelope the answers so taken, together with tho annexed Interrogatories, and this Commission, and write your name across the seal. 4. That you endorse on the envelope the names of the parties to this suit, and the name of said wimess 5. That you direct the package to the "Clerk of the District Court of Jefferson County, Beaumont, Texas." 6. That you certify on the envelope enclosing the deposition that you in person deposited the same in the mail for t~ansmission and state the date when, and the post office in which the same are deposited for transmissions. 7. That if said deposition is returned by a party interested in taking the same, or by any other person, he must receive it from your hands, and you will apprise the person receiving it that it must not be out of his possession and that he must deliver it to the Clerk of THIS Court IN PERSON, which evidence so taken as above, is to be used in the trial of a suit now pending in the 58 th District Court of Jefferson County, said State of Texas, wherein Royal Indemnity Company Plaintiff , and T E Moor and Co, et al Defendants, and is numbered D-0167370, on the docket of said Court. HEREIN FAIL NOT, but make return of this Writ as the law directs. Given under my hand and seal of office, at Beaumont, Texas, this 21st day of December A.D. 2004 * Strike if not avolicable Deputy. Attest LOLITA RAMOS Clerk of the Distil'ct Court Jefferson County, Texas Came to hand on day of , , at ._ o'clock ~ _ _ M. and executed in County, Texas, by delivering to each of the within named. - ia p~rson a tree coy of this oitation, with the daie of delivery endorsed thereon and tho ac~mpaay/ng copy of. following times and placcs, w-wit: DATE TIME Month Day Year Hour . Min._ et thc Place, Course and Dlstan~r,e Mileage M, From Courthouse F~E$ - servins ~ Total cop_ , Sh~'ziff Constable County, Texss By , Deputy CAUSE NO. D167370 ROYAL INDEMNITY COM~PAHY, § Plaintiff, § T.E. MOOR & CO., et ~, ~ Defendant. ~ IN THE DISTRICT COURT OF JEFFERSON cOUNTY, TEXAS SSTH JUDICIAL DISTRICT PLAINTIFF ROYAL INDEMNITY coMPANY'S NOTICE OF Trig ORAL AND VIDE,OTAPED DEPOSITION OF KEITH ARMBRUST PLEASE TAKE NOTICE that, pursuant to Rule 202 of the Texas Rules of Civil Procedure. Letters Rogatory issued by the Distriot Court of ~leffe. rson County, Texas, 58th._~/ Judicial District, and upon order of the Court of Common Pleas of Dauphin Countyf Pennsylvania, Plaintiff Royal Indemnity Company will take the oral and videotaped deposition of the above-named wimess as follows: Witness: Keith Armbrust ~ -~/',' ~c~ ;.?: Time: 1:00 p.m, :" '~"::' ' :' Date: Thursday, ~lanunry 6, 11005. 5 ' Place: Hnrrisbnrg-Hershey Crowne Plaza Hotel 23 South Second Street Harrisburg, PA 17101 717,234.5021 Court Reporter: DepoBook 800.830.8885 Videographer: DepoBook 800.8~0.8885 The deposition will continue from day to day until completed. You are invited to attend and cross-examine the wit. n~ss, WRIGHT BROWN & CLOSE, LLP Harvey O. Brown, Jr. State Bar No. 03130500 Howard L. Close Stale Bar No. 04406500 Three Riverway, Suite 600 Houston, Texas 77056 Tel.: 713-572-4324 Fax.: 713-572-4320 OF COUNgEL: Michael H. Ban' Alan S. Gilbert Daniel D. Bamowski SONNENSCHEIN NATH & ROSENTHAL LLP 1221 Avenue of the Americas, 24ts Floor Now York, New York 10020-1089 Tel.: 212-768-6700 Fax.: 212-768-6800 Atiorneys for Plaintiff Royal Indemnity Company 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served on all.counsel of record in the following mannex: Certified Mail / Return Receipt Requested Hand Delivery Facsimile U. l~. Postal Service Regular Mail Da~edthe 13'~ dayof ~C.~m~)¢¢ Andrew Love 2004. ROYAL INDEMNITY COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW T.E. MOOR & CO., DELTA CAREER INSTITUTE OF BEAUMONT, INC., MP III HOLDINGS, INC., : STUDENT MARKETING: SERVICES, LLC, STUDENT SERVICING, LLC AND COASTAL COLLEGE, Defendants NO. 05-103 CIVIL TERM AND NOW, this ORDER OF COURT 1/ 1ay of January, 2005, upon consideration of the Petition of Plaintiff, Royal Indemnity Company, for an Order for the Issuance of a Subpoena To Attend and Testify to Keith Armbrust, and following a conference call on January ]0, 2005, in which Plaintiff was represented by Joseph C. Ho]den, Esq., and the party indicated in the petition as objecting to the petition, MP III Holdings, Inc., was represented by Andres Hoppes, Esq., and Milind Shah, Esq., the petition is granted and the Prothonotary is directed to issue a subpoena to Keith Armbrust that compels him to appear and give testimony by deposition on oral examination on or before January ]9, 2005. BY THE COURT, :i("~l ,.':\..-" L?, :01 1 "...! ~V NVT S[lC:Z :lei ~Ph C. Holden, Esq. One Logan Square 18th and Cherry Streets Philadelphia, PA 19103 Attorney for Plaintiff ftha Career Institute of Beaumont, Inc. 1310 Pennsylvania Avenue Beaumont, TX 77701 Defendant, pro se ;/-Elizabeth Witmer, Esq. Saul Ewing LLP 1200 Liberty Ridge Drive Suite 200 Wayne, PA 19087-5569 Attorney for Defendants Student Marketing Services, LLC And Student Loan Servicing, LLC Andrew Hoppes, Esq. ~lind Shah, Esq. Reed Smith 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7301 Attorneys for Defendant MP III Holdings, Inc. ~ent W. Robinson, Esq.. Jeffrey D. Migit, Esq. Andrews & Jurth 600 Travis, Suite 4200 Houston, TX 77002 Attorneys for Defendant MP III Holdings, Inc. J'ilra G. Richard, Esq. Cornelius R. Heusel, Esq. Patrick J. Veters, Esq. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP 201 Charles Avenue New Orleans, LA 70170-5100 and J('Kelly Donaldson, Esq. Waterway Plaza Two 100001 Woodlock Forest Drive, Suite 350 The Woodlands, TX 77380 Attorneys vor Defendant Coastal College, Inc. ~."ld 1=1",\1; ej DRINKER BIDDLE & REATH LLP Joseph C. Holden Identification No.: 88604 One Logan Square 18th and Cherry Streets Philadelphia, PA 19103-6996 (215) 988-2700 (215) 988-2757 (facsimile) joseph.holden@dbr.com Attorneys for Plaintiff Royal Indemnity Company CAUSE NO. 05-103 ROYAL INDEMNITY COMPANY, Plaintiff, vs. T.E. MOOR & CO., DELTA CAREER INSTITUTE OF BEAUMONT, INC., MP III HOLDINGS, INC., STUDENT MARKETING SERVICES, LLC, STUDENT LOAN SERVICING, LLC AND COASTAL COLLEGE Defendants. s s s s s s s s s s s s s s IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA os- JD3 Ciu~C-T~ NINTH JUDICIAL DISTRICT PETITION OF PLAINTIFF. ROYAL INDEMNITY COMPANY. FOR AN ORDER FOR THE ISSUANCE OF A SUBPOENA TO ATTEND AND TESTIFY TO GAIL A. STONER Plaintiff Royal Indemnity Company ("Royal"), by and through its undersigned counsel, Drinker Biddle & Reath LLP, based on a Commission and a Letter Rogatory from the District Court of Jefferson County, Texas, and pursuant to 42 Pa. C.S.A. S 5326 and Pa. R. Civ. P. No. 4007.l, petitions this Honorable Court for an order directing the Prothonotary to issue a subpoena to Gail A. Stoner that compels her to appear and give testimony by deposition on oral examination. In support of this petition, Royal states: I. FACTUAL BACKGROUND. 1. A lawsuit with the above-styled caption is currently pending in Jefferson County, Texas, Cause No. D167370. In that lawsuit, Royal alleges that Defendant MP III Holdings, Inc. ("MP III'') was engaged in a fraudulent tuition loan scheme with Student Finance Corporation ("SFC") and its affiliates. The purpose of the scheme was to use the student loan business of SFC and the trucking school business of MP III jointly to generate enormous sums of money by making as many tuition loans as possible, regardless of their credit risk, and by pretending the loans were performing, when they actually were not. Many of the loans were fraudulent; many of the students who borrowed were unqualified to ever drive trucks; many of the borrowers were unwilling or incapable of repaying the loans; and many of the purported payments on the supposedly-performing loans were actually made by SFC and MP III themselves -- and not by the student-borrowers. 2. Royal is an insurance company which insured the loans made by SFC to MP III students. As part of the ongoing discovery in this complex lawsuit, Royal would like to depose Gail A. Stoner, a former employee ofMP III. As indicated in the Letter Rogatory issued by the District Court of Jefferson County, Texas, Ms. Stoner is a person with knowledge of facts that are relevant to the subject matter of the pending action. II. THE WITNESS HAS KNOWLEDGE OF RELEVANT FACTS 3. Ms. Stoner is believed to be a resident of Cumberland County, Pennsylvania. Ms. Stoner was the administrative director of Defendant MP Ill's Elizabethtown trucking school from 1996 to 1999. 4. MP III made fraudulent payments on the above described loans. SFC then turned around and represented to Royal (and the investors) that the payments had in actuality been made by 2 the borrowers -- thereby creating the false impression that the loans were self-supporting with borrower payments and were performing well. This is one of the critical frauds which SFC and MP III are accused of perpetrating. 5. Ms. Stoner was the administrative director ofMP Ill's Elizabeth trucking school during the time MP III conspired with SFC. 6. There is good cause to believe this witness has knowledge offacts relevant to the subject matter of the pending action, and that she may also have knowledge of information that is reasonably calculated to lead to the discovery of admissible evidence. Taking her testimony by deposition on oral examination will promote the just, fair, equitable, and impartial adjudication of the rights of the litigants in this action. 7. Ms. Stoner's address is: 5975 Eberly Drive, Mechanicsburg, P A 17050. III. PENNSYLVANIA LAW 8. The Pennsylvania Judicial Code and Pennsylvania Rules of Civil Procedure give the Court the power to assist tribunals and litigants located outside the Commonwealth of Pennsylvania in taking depositions of people residing in the Commonwealth. 42 Pa. Cons. Stat. S 5326(a); Pa. R. Civ. P. 4007. 1 (a)(f). This case is just such a situation. Ms. Stoner resides beyond the power of the Texas court to compel her attendance at trial. This deposition is intended to preserve Ms. Stoner's testimony for trial. If the subpoena is not issued, this critical witness will never be examined and facts at issue in this lawsuit will never be discovered. IV. TEXAS PROCEDURAL HISTORY 9. Plaintiff filed a Motion for Issuance of Letters Rogatory with the District Court of Jefferson County, Texas 58th Judicial District, Judge Mahaffey Presiding. (See attached Exhibit "A"). Presented with that motion were Letters Rogatory. (See attached Exhibit "BOO). Judge 3 Mahaffey signed those Letters Rogatory on January 21, 2005. (Exh. "B"). The court concluded that, "the taking of [Gail A. Stoner's] testimony by deposition on oral examination would promote the just, fair, equitable, and impartial adjudication of the rights of the litigants in this action." (Exh. "B"). The court went on to request the Court of Common Pleas of Cumberland County, Pennsylvania to issue any additional or supplemental orders as necessary to secure the deposition of Gail A. Stoner. (Exh. "B"). The court also issued a Commission to take an in or out of State Oral Deposition of Gail A. Stoner. (See attached Exhibit "C"). Attached to this Petition is Plaintiff Royal Indemnity Company's Notice of the Oral and Videotaped Deposition of Gail A. Stoner (Exhibit "D"). V. DATE OF DEPOSITION 10. Pursuant to the Letter Rogatory and Commission, Royal requests the Court to set the deposition of Ms. Stoner on February 22, 2005 at 9:00 a.m. The deposition will be taken at the location as listed on the notice of deposition attached hereto (Comfort Inn West, 6325 Carlisle Pike (US 11), Mechanicsburg, Pennsylvania, 717-790-0924). II. Plaintiff has disclosed the full text of the instant petition and proposed order to all other parties by facsimile transmission and requested that counsel notify the undersigned of any objections to this petition by the close of business on February 2, 2005. No objections were received. In addition, the concurrence of opposing counsel of record was sought and obtained telephonically from the following: Andrew Hoppes, counsel for Defendant MP III Holdings, Inc.; and Cornelius Heusel, counsel for Defendant Coastal College, Inc. The undersigned was unable to reach Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC by telephone. Defendant Delta Career Institute of Beaumont has defaulted in this matter. 4 Attempts to reach them at their last known telephone/facsimile contact information were unsuccessful. VI. PRAYER WHEREFORE, Plaintiff Royal Indemnity Company respectfully requests that this Court enter an order, pursuant to section 5326(a) of the Pennsylvania Judicial Code and Rule 4007.1(1) of the Pennsylvania Rules of Civil Procedure, for the issuance of a subpoena to Gail A. Stoner to appear and give testimony by deposition on oral examination for use in this matter, and for such other relief, both general and specific, to which Plaintiff may be justly entitled. Respectfully submitted, DRINKER BIDDLE & REATH LLP By: ( o e C. Holden ate Bar No. 88604 ne Logan Square 18th and Cherry Streets Philadelphia, PA 19103 Telephone: (215) 988-2700 Facsimile: (215) 988-2757 joseph.holden@dbr.com Attorneys for Royal Indemnity Company AS OF COUNSEL: Michael H. Barr Alan S. Gilbert Daniel D. Barnowski Sonnenschein Nath & Rosenthal LLP 1221 Avenue of the Americas New York, NY 10020-1089 Telephone: (212) 768-6700 5 VERIFICATION r, CHRISTOPHER A. BENSON, am Vice President and Assistant General Counsel for Royal Indemnity Company. ptail1lilT in the above action. I am authorized to make this verification on behalf of Royallndel11nity Company. The averments made in the preceding request for issuance of a subpoena are true and correct to the best of my knowledge, information and belief. I understand that false statemcnts are subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsifications to authorities. Date: January 28,2005 Christopher A. Benson CERTIFICATE OF SERVICE I, Joseph C. Holden, hereby certify that today, I caused a true and correct copy of the foregoing Petition for Issuance of a Subpoena to Attend and Testify to be served, via first class U.S. mail, postage pre-paid, upon the following: Gerald R. Flatten, Esquire Rienstra, Dowell & Flatten San Jacinto Building 595 Orleans, Suite 1007 Beaumont, TX 77701 Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC Elizabeth Witmer, Esquire Saul Ewing LLP 1200 Liberty Ridge Drive, Suite 200 Wayne, PA 19087-5569 Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC Milind Shah, Esquire Alan K. Cotler, Esquire Andrew Hoppes, Esquire Reed Smith 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7301 Counsel for Defendant MP III Holdings, Inc. Kent W. Robinson, Esquire Jeffrey D. Migit, Esquire Andrews & Kurth 600 Travis, Suite 4200 Houston, TX 77002 Counsel for Defendant MP III Holdings, Inc. Tara G. Richard, Esquire Cornelius R. Heusel, Esquire Patrick J. Veters, Esquire Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP 20 I St. Charles Avenue New Orleans, LA 70170-5100 Counsel for Defendant Coastal College, Inc. R. Kelly Donaldson, Esquire Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP Waterway Plaza Two 10001 Woodloch Forest Drive, Suite 350 The Woodlands, TX 77380 Counsel for Defendant Coastal College, Inc. Dated: February (;7,2005 . Holden CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 208.3(a) I, Joseph C. Holden, hereby certify that Plaintiff Royal Indemnity Company has disclosed the full text of the petition and the proposed order to all other parties by facsimile transmission and requested that counsel notifY the undersigned of any objections to this petition by the close of business on February 2, 2005. No objections were received. In addition, the concurrence of opposing counsel of record was sought and obtained telephonically from the following: Andrew Hoppes, counsel for Defendant MP III Holdings, Inc.; and Cornelius Heusel, counsel for Defendant Coastal College, Inc. The undersigned was unable to reach Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC by telephone. Defendant Delta Career Institute of Beaumont has defaulted in this matter. Attempts to reach them at their last known telephone/facsimile contact information were unsuccessful. / GL~~ Dated: February ~, 2005 c/ CAUSE NO. D167370 ROYAL INDEMNITY COMPANY, Defendants. !i !i !i !i !i !i !i !i !i JEFFERSON COUNTY, TEXAS IN THE DISTRICT COURT OF Plaintiff, vs. T.E. MOOR & CO., et al., 58TH JUDICIAL DISTRICT PLAINTIFF'S MOTION FOR ISSUANCE OF LETTER ROGATORY TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to Rule 202 of the Texas Rules of Civil Procedure, Plaintiff, Royal Indemnity Company, requests that the Court issue Letter Rogatory directed to the Court of Common Pleas of Cumberland County, Pennsylvania, requesting that the Cumberland County Court of Cornmon Pleas issue a subpoena ordering GAIL A. STONER to appear and give testimony by deposition on oral examination for use in this matter,::'ai1d in support of this motion shows: I. RELEVANT FACTS Like the other trucking-school defendants in this lawsuit, Defendant MP III Holdings, Inc. ("MP III") was engaged in a separate fraudulent tuition loan scheme with Student Finance Corporation and its affiliates. The purpose of each of those separate schemes was to use the student loan business of SFC and the trucking school business of the trucking school defendants jointly to generate enormous sums of money by making as many tuition loans as possible, regardless of their credit risk, and by pretending the loans were performing, when they actually were not. Many of the loans were fraudulent, many of the students who borrowed were unqualified to ever drive trucks, many of the borrowers were unwilling or incapable of repaying the loans, and many of the purported payments on the supposedly-performing loans were actually made by SFC and the trucking schools themselves-and not by the student-borrowers. II. THE WITNESS HAS KNOWLEDGE OF RELEV ANT FACTS The witness to be deposed is GAlL A. STONER, a citizen of Pennsylvania who resides at 5975 Eberly Drive, Mechanicsburg, Pennsylvania. Ms. Stoner was the administrative director of MP Ill's Elizabethtown trucking school from 1996 to 1999. Taking her testimony by deposition on oral examination would promote the just, fair, equitable, and impartial adjudication of the rights of the litigants in this action. III. PRAYER WHEREFORE, premises considered, and pursuant to Rule 202 of the Texas Rules of Civil Procedure, Plaintiff Royal Indenmity Company asks this Court to request, via Letters Rogatory, that the Court of Common Pleas of Cumberland County, Pennsylvania, assist this Court in serving the interest of justice by ordering GAIL A. STONER to appear and give testimony by deposition on oral examination for use in this matter, and for such other relief, both general and specific, to which Plaintiff may be justly entitled. 2 Respectfully submitted, WRIGHT BROWN & CLOSE, LLP By: ~ck< Harvey G. Brown, Jr. State Bar No. 03130500 Howard L. Close State Bar No. 04406500 Three Riverway, Suite 600 Houston, Texas 77056 Telephone: (713) 572-4321 Facsimile: (713) 572-4320 brown~vnightbrownclose.com close~vnightbrownclose.com AS OF COUNSEL: Michael H. Barr Alan S. Gilbert Daniel D. Barnowski Sonnenschein Nath & Rosenthal LLP 1221 Avenue of the Americas New York, NY 10020-1089 Telephone: (212) 768-6700 Facsimile: (212) 768-6800 Attorneys for Royal Indemnity Company 3 .' -, CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served on all counsel of record in the following manner: Certified Mail/Return Receipt Requested Hand Delivery Facsimile V" U. S. Postal Service Regular Mail -- Datedthe 2,\5+ day of -J av'\Ut:lr~ 2005. Urvv}Au..) ~ Andrew Love 4 ~ .. . . CAUSE NO. D167370 ROYAL INDEMNITY COMPANY, 9 9 9 9 9 9 9 9 9 IN THE DISTRICT COURT OF Plaintiff, VS. JEFFERSON COUNTY, TEXAS T.E. MOOR & CO., et al., Defendants. 58TH JUDICIAL DISTRICT LETTER ROGATORY TO: THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA It appears to this Court that non-party GAlL A. STONER is a person with knowledge of facts that are relevant to the subject matter of the pending action, and that she may also have knowledge of information that is reasonably calculated to lead to the discovery of admissible evidence. Therefore, this Court concludes that taking her testimony by deposition on oral examination would promote the just, fair, equitable, and impartial adjudication of the rights of the litigants in this action. Ms. Stoner, who lives at 5975 Eberly Drive, Mechanicsburg, Pennsylvania, is a resident of Cumberland County. This Court requests that the Cumberland County Court of Common Pleas assist this Court in serving the interest of justice by ordering GAIL A. STONER to appear and give testimony by deposition on oral examination for use in this matter on at 9:00 a.m. on Tuesday, February 22, 2005 at the Comfort Inn West, 6325 Carlisle Pike (US 11), Mechanicsburg, Pennsylvania, Phone: (717) 790-0924 Fax: (717) 691-9385. This Court also requests that the deposition on oral examination be conducted wholly pursuant to the Texas Rules of Civil Procedure. This Court further requests that the Court of Common Pleas of Cumberland County, Pennsylvania issue any and all additional or supplemental orders necessary to secure the deposition of GAIL A. STONER. This Court is ready and willing to extend the same courtesies to the ,200S. P 'din~Jd ~ reSl g u ge I CERTIFY THIS AS A TRUE COpy Witness my Hand and Seal 01 Office JAN 2 1 2005 LOLITA RAMOS. DISTRICT CLERK J FE SON COUNTY, TEXAS BY' DEPUTY 2 5S6.cOMMISSION TO TAKE IN OR OUT OF STATE - WRITTEN INTERROGATRlES - SUapOEHAlSUapOENA DUCES TECUM - Either Court (Rev. 62) THE STATE OF TEXAS To the Clerk of the District Court, Judge or Clerk of the Couuty Court, or any official District Court Reporter or any Notary Public in and for the County of Jefferson, State of Texas - Greeting: ... To any Clerk or Court ofReeord bavlnc a Seal i any Notary Publi.; or any Commissioner of Deeds, duly appointed Ilnder the laws of Tens, for the State or Tau, within and for the County of Jefferson State of Texas. .. To any notary public or llJIY minister, tommlssioDer or charge d'affaires olibe United States resident, and accredited to Or any tonlul-general, eonsul, viee-eoRsuJ, eommerclalagent, vke-commercia' agent, deputy wnsul or consular agent olthe United States residing In uld county. ." To any Commissioned omtel' in the Armed Fortes of the United States of America, in the AuxiJiarie5 thereto, or to any Commissioned Officer in the Armed Foree Reserve olthe United States of America, or any Auxiliary thereto. You, or either of you, are hereby authorized to immediately issue and cause to be served upon GAIL A. STONER, whose address is 5975 Eberly Drive, Mechanicsburg, Pennsylvania, a subpoena duces tecum to come before you on the 22nd day of February, 2005, at 9:00 o'clock A. M., at Comfort Inn West, 6325 Carlisle Pike (US 11), Meebanicsburg, Pennsylvania, and that you then and there take her answers, under oath to the attached Letter Rogatory, a copy of which is attached to /his commission, and that you return /he same without delay to the Clerk of this Court, as herein provided. Said witness shall bring with her and produce at the above designated time and place for taking his answer to /he Interrogatories above mentioned, the following designated books, papers, documents and tangible things, to wit: · NA Said Interrogatories shall be taken and returned as follows: I. That you reduce her answers so taken to writing in proper fonn and cause the same to be subscribed and sworn by said wituess . 2. That you certify under your hand and seal of office, that said answers were sworn to and subscribed before you. 3. That you seal up in an envelope /he answers so taken, together with /he annexed Interrogatories, and this Commission, and write your name across the seal. 4. That you endorse on the envelope /he names of the parties to this suit, and the name of said witness . 5. That you direct /he package to the "Clerk of /he District Court of Jefferson County, Beaumont, Texas." 6. That you certify on the envelope enclosing the deposition that you in person deposited the same in the mail for transmission and state the date when, and the post office in which the same are deposited for transmissions. 7. That if said deposition is returned by a party interested in taking the same, or by any other person, he must receive it from your hands, and you will apprise /he person receiving it that it must not be out ofhis possession and that he must deliver it to the Clerk ofTIUS Court IN PERSON, which evidence so taken as above, is to be used in /he trial of a suit now pending in the 58 th District Court of Jefferson County, said State of Texas, wherein Royal Indemnity Company, Plaintiff, and T.E. Moor and Company, et al, Defendants, and is munbered D-0167370, on the docket of said Court. HEREIN FAIL NOT, but make return of Ibis Writ as the law directs. Given under my hand and seal of office, at Beaumont, Texas, this 21st day of January A.D. 2005 ~~+ AltestLOLlTARAMOS Clerk of the District Court Jefferson County, Texas By Deputy. . Strike if not applicable. RETtlJU'{ Came to hand on day of o'clock _ M. and executed in delivering to each of the witbiri named in person a true coy of this citation, with the date of delivery endorsed thereon and the accompanying copy of at the following times and places, to-wit: , ,at County, Texas, by Name DATE TIME Place, Course end DI8tance Month Dav Year Hour MIn. M. From COurthoute .' . FEES - terVing Total cop-$ $ :. ."''', -~.' , Sheriff f' COnstable County, Tcrxas By' . Deputy CAUSE NO. D167370 ROYALINDE~TYCOMPANY, Plaintiff, 9 9 9 9 9 9 9 9 9 JEFFERSON COUNTY, TEXAS IN THE DISTRICT COURT OF vs. T.E. MOOR & CO., et al., Defendants. 58TH JUDICIAL DISTRICT PLAINTIFF ROYAL INDEMNITY COMPANY'S NOTICE OF THE ORAL AND VIDEOTAPED DEPOSITION OF GAIL A. STONER PLEASE TAKE NOTICE that, pursuant to Rule 202 of the Texas Rules of Civil Procedure, Plaintiff Royal Indemnity Company will take the oral and videotaped deposition of the above-named witness as follows: Witness: Gail A. Stoner Time: 9:00 a.m. Date: Tuesday, February 22, 2005. ::5 ',.)1 Place: ComfortInn West 6325 Carlisle Pike Mechanicsburg, Pennsylvania 717-790-0924 Court Reporter: DepoBook 800-830-8885 -:..,:, '..:1 Videographer: DepoBook 800-830-8885 The deposition will continue from day to day until completed. You are invited to attend and cross-examine the witness. .. Respectfully submitted, WRIGHT BROWN & CLOSE, LLP By: ~~~ Harvey G. Brown, Jr. State Bar No. 03130500 Howard 1. Close State Bar No. 04406500 Three Riverway, Suite 600 Houston, Texas 77056 Tel.: 713-572-4321 Fax.: 713-572-4320 OF COUNSEL: Michael H. Barr Alan S. Gilbert Daniel D. Barnowski SONNENSCHEIN NATH & ROSENTHAL LLP 1221 Avenue ofthe Americas, 24th Floor New York, New York 10020-1089 Tel.: 212-768-6700 Fax.: 212-768-6800 Attorneys for Plaintiff Royal Indemnity Company 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served on all counsel of record in the following manner: Certified Mail I Return Receipt Requested Hand Delivery Facsimile / U. S. Postal Service Regular Mail Dated the2l5tday of \Jt'nw::AJ' 2005. ~~~ Andrew Love 3 C) ( o -'r\ -n en 0' I W -"';' ~:? f'.) I..)'"l . . FEB 0 4 2DDS-~ JY CAUSE NO. 05-103 ROYAL INDEMNITY COMPANY, Plaintiff, vs. " T.E. MOOR & CO., DELTA CAREER INSTITUTE OF BEAUMONT, INC., MP III HOLDINGS, INC., STUDENT MARKETING SERVICES, LLC, STUDENT LOAN SERVICING, LLC AND COASTAL COLLEGE Defendants. s s s s s s s s s s s s s s ORDER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 05- 'D3 C;QcC-T~ NINTH JUDICIAL DISTRICT AND NOW, this $ day of February, 2005, upon consideration of plaintiffs petition for issuance of a subpoena for the deposition of Gail A. Stoner based on a commission and a letter rogatory from the District Court of Jefferson County, Texas, pursuant to 42 Pa. C.S.A. S 536 and Pa. R. Civ. P. No. 4007.1, it is ORDERED that the petition is GRANTED. It is FURTHER ORDERED that the Prothonotary issue a subpoena to Gail A. Stoner that compels her to appear and give testimony by deposition on oral examination. BY THE COURT: I, ~/! ri ,1. L.' 2h I..:~ U,' '':''~ \ ~;,:~] t\J L:..- "~- r- \.1,~. (-) Pursuant to Local Rule 208.3(a), the following are requiired to be notified of the entry of this order: Gerald R. Flatten, Esquire Rienstra, Dowell & Flatten San Jacinto Building 595 Orleans, Suite 1007 Beaumont, TX 7770 I Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC Elizabeth Witmer, Esquire Saul Ewing LLP 1200 Liberty Ridge Drive, Suite 200 Wayne, PA 19087-5569 Counsel for Defendants Student Marketing Services, LLC and Student Loan Servicing, LLC Milind Shah, Esquire Alan K. Cotler, Esquire Andrew Hoppes, Esquire Reed Smith 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7301 Counsel for Defendant MP III Holdings, Inc. Kent W. Robinson, Esquire Jeffrey D. Migit, Esquire Andrews & Kurth 600 Travis, Suite 4200 Houston, TX 77002 Counsel for Defendant MP III Holdings, Inc. Tara G. Richard, Esquire Cornelius R. Heusel, Esquire Patrick J. Veters, Esquire Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP 201 S1. Charles Avenue New Orleans, LA 70170-5 100 Counsel for Defendant Coastal College, Inc. 2 R. Kelly Donaldson, Esquire Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP Waterway Plaza Two 10001 Woodloch Forest Drive, Suite 350 The Woodlands, TX 77380 Counsel for Defendant Coastal College, Inc. 3