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McNett v. Alyeska Pipeline Service Co. (8/6/93), 856 P 2d 1165
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
NANCY McNETT, )
) Supreme Court No. S-5212
Appellant, )
)
v. ) Superior Court No.
) 3AN-92-3304 CIVIL
ALYESKA PIPELINE SERVICE )
COMPANY, ) O P I N I O N
)
Appellee. )
______________________________) [No. 3992, August 6, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Joan M. Katz, Judge.
Appearances: James A. Gasper, Jermain,
Dunnagan & Owens, P.C., Anchorage, for
Appellant. Lawrence R. Trotter and Susan D.
Murto, Alyeska Pipeline Service Co.,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
RABINOWITZ, Justice.
I. INTRODUCTION
This appeal is taken from the superior court's denial
of Nancy McNett's application, made pursuant to Alaska Civil Rule
27, to perpetuate testimony before the filing of an action.
II. FACTS AND PRIOR PROCEEDINGS
On April 20, 1992, Nancy McNett filed a petition to
depose Scott Cyr under Alaska Civil Rule 27(a). Cyr had been
McNett's supervisor during her employment at Alyeska Pipeline
Service Company (Alyeska). In her petition, McNett stated that
she intended to bring an action against Alyeska for breach of
contract and wrongful termination, although she was unable to
bring the action at the present time. She stated that Cyr
intended to leave the jurisdiction shortly, and that therefore
she had a need for preserving his testimony through a pre-action
deposition.
Alyeska opposed McNett's petition. Kathleen Carr,
Alyeska's Manager of Human Resource Services, stated in her
affidavit in support of Alyeska's opposition:
Mr. H.J. (Scott) Cyr has retired from
Alyeska Pipeline Service Company effective
March 6, 1992. It is my understanding that
he is moving to Montgomery, Alabama. He
would be available for deposition testimony
in Montgomery, Alabama, if petitioner brings
an action against Alyeska Pipeline Service
Company.
At a hearing on the petition, McNett's attorney argued
that the petition should be granted because McNett was presently
unable to bring the cause of action. He explained that McNett
had left Alaska after her termination, now had returned, and was
in the process of seeking new counsel for unspecified reasons.1
The superior court denied the petition, noting that "if
she's been here for nine months -- no reason articulated why she
couldn't have brought an action." The superior court stated that
McNett had not met "the first prong"of Rule 27(a), namely "that
she's unable to bring [a suit] or cause it to be brought."
Additionally, the court noted that there appeared to be no reason
why a commission to take a deposition in another state would be
turned down.
Subsequently the superior court entered a final
judgment order denying the petition and awarding Alyeska $300 in
attorney's fees. McNett argues two points in this appeal.
First, she contends that the superior court erred in denying her
Rule 27(a) petition because the court did not meet its
affirmative duty of requesting additional evidence of McNett's
inability to commence an action. Second, McNett contends that
the superior court erred in awarding attorney's fees to Alyeska.
III. STANDARD OF REVIEW
The appropriate standard of review for the granting or
denial of a Rule 27(a) petition to preserve pre-litigation
testimony is abuse of discretion. Ash v. Cort, 512 F.2d 909, 913
(3d Cir. 1975); Harmon v. Mercy Hosp., 460 N.W.2d 404, 406 (N.D.
1990).
Similarly, we review the award of attorney's fees under
the abuse of discretion standard. Van Dort v. Culliton, 797 P.2d
642, 644 (Alaska 1990).
IV. DISCUSSION
A. Did the superior court abuse its discretion
in denying McNett's Rule 27(a) petition?
Alaska Civil Rule 27, titled "Depositions Before Action
or Pending Appeal,"states in relevant part:
(a) Before Action.
(1) Petition. A person who desires to
perpetuate his own testimony or that of
another person regarding any matter that may
properly be the subject of an action or
proceeding in any court of the state, may
file a verified petition in the superior
court. The petition shall be entitled in the
name of the petitioner and shall show: (1)
that the petitioner expects to be a party to
an action in a court of the state but is
presently unable to bring it or cause it to
be brought, (2) the subject matter of the
expedited action and his interest therein,
(3) the facts which he desires to establish
by the proposed testimony and his reasons for
desiring [to] perpetuate it, (4) the names or
description of the persons he expects will be
adverse parties and their addresses so far as
known, and (5) the names and addresses of the
persons to be examined and the substance of
the testimony which he expects to elicit from
each, and shall ask for an order authorizing
the petitioner to take the depositions of the
persons to be examined named in the petition,
for the purpose of perpetuating their
testimony.
Additionally, Rule 27(a)(3) states:
If the court is satisfied that the
perpetuation of the testimony may prevent a
failure or delay of justice, it shall make an
order designating or describing the persons
whose depositions may be taken and specifying
the subject matter of the examination and
whether the deposition shall be taken upon
oral examination or written interrogatories.
Alaska Civil Rule 27 is derived from Federal Rule of
Civil Procedure 27, and federal decisions interpreting the
federal counterpart provide a useful general framework of the
purposes of Rule 27.2 Federal cases have noted that Rule 27(a)
"`is not a method of discovery to determine whether a cause of
action exists; and, if so, against whom action should be
instituted.'" In re Boland, 79 F.R.D. 665, 668 (1978) (quoting
Petition of Gurnsey, 223 F. Supp. 359, 360 (D.D.C. 1963)).
Instead, the Rule applies
to situations where, for one reason or
another, testimony might be lost to a
prospective litigant unless taken
immediately. . . . Such testimony would
thereby be perpetuated or kept in existence
and, if necessary, would be available for use
at some subsequent time.
Ash v. Cort, 512 F.2d 909, 911 (3d Cir. 1975) (citing to Petition
of Ferkauf, 3 F.R.D. 89, 91 (S.D.N.Y. 1943)). Both federal and
state courts have read Rule 27(a) to restrict depositions that
are merely searches for a cause of action, rather than an effort
to preserve testimony concerning facts already known to the
potential litigant. See Harmon v. Mercy Hosp., 460 N.W.2d 404,
406 (N.D. 1990).
Under Civil Rule 27, a petitioner must first establish
that she expects to be a party to an action, but is unable to
bring the action at the present time. Courts have held that
there must be a sufficient factual showing to support an
expectation of an action. A leading treatise explains this
requirement as follows:
A good illustration of this situation is
a case in which an executrix expected that
the Commissioner of Internal Revenue would
assess a deficiency federal estate tax and
desired to perpetuate testimony concerning
the intent of the testator in making certain
gifts. The court held that the inability to
bring or cause to be brought an action
concerning this matter was shown by the fact
that no action could be begun until the
deficiency assessment was made and that even
after petitioner paid the assessment she
might have to wait six months after filing a
claim for refund before suing for its
recovery.
8 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil 2072, at 336 (1970) (citing Petition of Ernst,
2 F.R.D. 447 (S.D. Cal. 1942)).3
McNett argues that the superior court had an
affirmative duty to seek more information at the hearing as to
why she was unable to bring an action at the present time. She
asserts that she adequately demonstrated to the superior court
that her desire to depose Mr. Cyr was not "a general discovery
fishing expedition,"but an effort to preserve specific facts.
She relies on In re Burlington Bagel Bakery, Inc., 549 A.2d 1044
(Vt. 1988), for the proposition that a lower court's reliance on
"argumentative assertions of counsel"does not provide adequate
grounds for the dismissal of a Rule 27(a) petition. Id. at 1045.
She contends that this court is not bound to adopt federal
interpretations of Rule 27, and instead should "examine Rule 27
under the circumstances which are unique to Alaska, and render an
opinion based upon Alaska concerns." McNett identifies only one
such concern, stating that "[g]iven Alaska's unique concerns for
unavailability of potential witness [sic] . . . [t]his court
should rule that a witness who is preparing to leave Alaska is
. . . equivalent to a witness who is preparing to leave the
United States under the federal rule." Additionally, she
contends that the superior court's view that McNett should have
commenced her action within the nine months since her termination
rendered meaningless the applicable statute of limitations.
Alyeska asserts that Burlington Bagel Bakery, Inc. can
be distinguished. It observes that the Rule 27(a) petition in
Burlington Bagel Bakery, Inc. concerned a petition to depose a
person alleged to be preparing to open a competing bagel bakery
in violation of a non-competition agreement. Alyeska observes
that in Burlington Bagel Bakery, Inc., the Vermont Supreme Court
had found that where the trial court based the denial of a Rule
27 petition solely on the grounds that the petitioner had not
provided evidence to support the claim that the competing bagel
bakery would be opened, then evidence concerning whether or not
the bakery would in fact be opened should have been taken by the
court. Id. at 1045. Alyeska contends that in contrast, the
superior court did not base its findings on a challenge to the
proposed action's validity. Instead, the superior court assumed
McNett's allegations that she had a valid cause of action to be
true, but found that she had failed to demonstrate why she could
not bring the cause of action immediately. Alyeska notes that
the superior court's decision did not render meaningless the
applicable statutes of limitations, as McNett is free to either
file another Rule 27(a) petition or to seek discovery once her
action has been filed.
Given the above, we conclude that the superior court
did not abuse its authority in holding, pursuant to Alaska Civil
Rule 27, that McNett had not established that she was "unable to
bring"her action as of the time of the petition. On this record
the superior court could reasonably conclude that McNett failed
to show that perpetuation of Cyr's testimony "may prevent a
failure or delay of justice." The sole evidence presented by
McNett's counsel concerning McNett's inability to bring suit was
that McNett had left Alaska of her own will and was now in the
process of changing counsel for undisclosed reasons.
The superior court provided McNett, through her
counsel, with an adequate opportunity to present more specific
evidence of why she was unable to bring suit. McNett's counsel
chose to respond to the court's questions with non-specific
answers. Study of the record does not indicate that the superior
court precluded McNett's counsel from introducing any additional
facts that might have advanced her cause. McNett's counsel had
the opportunity to elaborate further details that might have
strengthened McNett's claim of inability.4
McNett's argument that Rule 27(a) should be interpreted
differently in light of Alaska's unique circumstances is
unpersuasive. The mere fact that someone relocates to another
state is not equivalent to leaving the country. Compulsory
process for depositions is available nationwide. Finally, the
superior court's ruling did not render meaningless the statute of
limitations. The fact that a potential plaintiff still has time
to file a lawsuit does not automatically lead to the conclusion
that a Rule 27(a) petition must be granted.
B. Did the superior court abuse its discretion
in awarding Alyeska attorney's fees?
McNett argues that it was inappropriate for the court
to award Alyeska attorney's fees because there was no "prevailing
party." She also states that since she would not have been
entitled to attorney's fees had she "prevailed," it is
inequitable for Alyeska to be awarded such fees. This claim is
more of a circular statement than an argument. No authority is
cited for either proposition.
The superior court's entry of a final order denying
McNett's Rule 27 petition was a final judgment for purposes of an
attorney's fee award pursuant to Alaska Civil Rule 82. We
therefore conclude that the superior court did not abuse its
discretion in awarding Alyeska $300 in attorney's fees.
V. CONCLUSION
The superior court did not abuse its discretion in
denying McNett's Rule 27 petition to depose Cyr prior to the
commencement of her suit against Alyeska since McNett failed to
establish that she was unable to commence the action. Further,
the superior court did not abuse its discretion in awarding
Alyeska $300 in attorney's fees.5
AFFIRMED.
_______________________________
1. McNett's attorney stated: "[S]he was out of the
jurisdiction for a period of time before retaining this firm to
represent her. And as developments have occurred - - this firm
will not represent her in whatever litigation she ultimately
contemplates against Alyeska Pipeline. And she is in the process
of seeking other counsel; has not yet secured that counsel."
Counsel also offered a second ground: "A failure or delay of
justice." This ground, which he described generally as a need
for court flexibility, has not been briefed on appeal. McNett
explains in her brief that her employment with Alyeska had been
terminated in June of 1991, and that she returned to Alaska in
August of 1991.
2. We have held that federal authorities interpreting a
federal rule may be considered in the interpretation of a similar
state rule. Fenner v. Bassett, 412 P.2d 318, 321 (Alaska 1966).
3. Circumstances that have been found to constitute an
adequate showing of impending loss of the proposed deposition
testimony include grave illness, or plans to leave the United
States for an indefinite or lengthy period of time. Boland, 79
F.R.D. at 667.
4. We hold that a court, when it is presented with a Rule
27 petition, has no affirmative duty to elicit additional
evidence from a petitioner or his counsel if the court concludes,
based on the evidence presented by the parties on their own
volition, that it is persuaded to deny the petition. Rule 27(a)
provides an exceptional privilege that should be reserved for
exceptional circumstances. It is properly the responsibility of
the petitioner, not the court, to establish that such
circumstances exist. Compare Burlington Bagel Bakery, Inc..
5. These holdings make it unnecessary to address any of the
remaining points advanced by the parties.
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