IN RE: Douglas Scott Combs (2025)

Chapter 7

ORDER DENYING AMENDED MOTION FOR REHEARING AND RECONSIDERATION OF ORDER GRANTING MOTION TO COMPEL RULE 2004 EXAMINATION OF GUNILLA COMBS

THIS CASE came on for hearing on February 5, 2025, upon an amended motion filed by Gunilla Combs asking the Court to rehear and reconsider its order granting the motion of creditor, PR Group, LLC, to compel Ms. Combs's Rule 2004 ¹ examination (the “Motion”).² (Doc. No. 37.) For the following reasons, the Motion is denied.

I. FACTS AND PROCEDURAL HISTORY.

On April 26, 2024, the Debtor filed a Chapter 7 petition. (Doc. No. 1.) Gunilla Combs is the Debtor's wife (Doc. No. 38 ¶ 7), but she is not a co-debtor and has not filed for bankruptcy. Creditor PR Group, LLC (“PR Group”) subpoenaed Ms. Combs for a September 6, 2024, Rule 2004 examination (the “Rule 2004 Exam”). (Doc. No. 25 at 11.) PR Group is a judgment creditor to the Debtor and wants to examine Ms. Combs under oath regarding the Debtor's financial affairs.³ (Id. at 1, 4.)

According to the Debtor's testimony, Ms. Combs is the sole owner of the Debtor's Florida employer, Naturastone Surfaces, LLC. (Id. at 22.) The business had gross revenues in 2023 of $1 million, yet the Debtor, who manages the business, was paid just $11 per hour. (Id. at 2.) Ms. Combs is also the manager and registered agent for another Florida limited liability company. (Id. at 17, 19.)

The Debtor's schedules reflect he has no interest in any vehicles or real property and scant personal property. (Doc No. 1 at 8, Part 1). He drives cars owned by his daughter or Ms. Combs (id.), and resides at 714 Shady Lane Drive, Orlando, Florida 32804 (the “Property”) (id. at 2), which Ms. Combs owns. Ms. Combs retains personal items at the Property ⁴ (Doc. No. 25 at 27) and claims a homestead exemption on the Property (id. at 13-14).

PR Group, through counsel, issued a subpoena to Ms. Combs for a Rule 2004 Exam for service upon her at the Property in mid-August 2024. (Id. at 10-11.) PR Group did not request documents from Ms. Combs in connection with her Rule 2004 Exam and sought testimony only. (Id. at 11.) After Ms. Combs failed to appear for the Rule 2004 Exam, which was scheduled for September 6, 2024, PR Group moved to compel her attendance (the “Motion to Compel”). (Doc. No. 25.) Before the hearing on the Motion to Compel, the Debtor filed an affidavit stating that Ms. Combs “is no longer a resident of the State of Florida, and has not been living here as a resident since April 2024. On May 1, 2024, she effectively became a permanent resident of Sweden.”  ⁵ (Doc. No. 27-1 ¶ 4.) The Debtor also stated that Ms. Combs was not residing at the Property when he received her subpoena there. (Id. ¶ 5.)

Ms. Combs did not appear at the hearing on the Motion to Compel. (Doc. No. 28.) The Court granted the Motion to Compel and ordered Ms. Combs to “make herself available for a deposition via Zoom within thirty (30) days ․ at a date and time mutually agreed upon with counsel for PR Group” (the “Order”). (Doc. No. 29 ¶ 2.) Ms. Combs now asks the Court to reconsider the Order and find that service of the subpoena was improper, and thus that the Court lacks jurisdiction over her, and to award her costs and attorney's fees for bringing the Motion. (Doc. No. 37 at 18-19.) She also argues that the pending proceeding rule precludes her Rule 2004 Exam. (Id. at 16-18.)

Ms. Combs does not contend that she lacked notice of the Motion to Compel or the related hearing and states in her affidavit that she “understand[s] that someone connected to the case has been wanting to take some sort of a deposition, but [she has] not been served, nor [has she] authorized anyone to accept any papers on [her] behalf.” (Doc. No. 38 ¶ 37.)

II. ANALYSIS.

In the Motion, Ms. Combs cites subsections (b)(1), (4) and (6) of Civil Rule 60, made applicable in bankruptcy matters by Rule 9024. (Doc. No. 37 at 4-5.) Those subsections provide that a court may relieve a party from an order for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; ․ (4) the judgment is void; ․ [or] (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1), (4), (6). Relief under Civil Rule 60(b)(6) may only be granted under extraordinary circumstances. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 393, 113 S. Ct. 1489, 1497 (1993). Ms. Combs argues that she demonstrates the necessary extraordinary circumstances for granting relief from the Order because “principles of equity mandate relief coupled with a showing that absent relief, extreme and undue hardship will result, due to [her] physical condition and [ ] living outside the United States.” (Doc. No. 37 ¶ 28.)

“A motion for reconsideration should be based on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear and manifest injustice.” Woodard v. Stewart (In re Stewart), 280 B.R. 268, 287 (Bankr. M.D. Fla. 2001). A court will not reconsider its ruling when a motion does not raise new issues and only seeks to relitigate matters the court has already considered. United States v. Kiester (In re Envirocon Int'l Corp.), 218 B.R. 978, 979 (M.D. Fla. 1998). Nor will a court consider issues raised for the first time on reconsideration that could have been previously raised. Thierry v. Honey Pot Co. (DE), LLC, No. 1:22-CV-4414-MHC, 2023 WL 8517471, at *1 (N.D. Ga. Aug. 31, 2023), aff'd, No. 23-12083, 2024 WL 3983400 (11th Cir. Aug. 29, 2024).

Ms. Combs fails to demonstrate mistake, inadvertence, surprise, or excusable neglect, that the Order is void, or that extraordinary circumstances for granting relief from the Order exist, and thus Civil Rule 60(b) is unavailing. Additionally, the arguments she raises could have been brought to the Court's attention during the hearing on the Motion to Compel, and thus are now untimely and not a basis for reconsideration. The Court considers each of Ms. Combs's arguments in turn.

A. Location of the Rule 2004 Exam

Ms. Combs's first argument is that the subpoena was improper because Civil Rule 45(c)(1)(a) precludes her from being compelled to appear more than 100 miles from where she resides, which, she maintains, is presently in Sweden. (Doc. No. 37 at 5-8.) But permitting testimony by remote means obviates this concern. Relevant to the issue here, Civil Rule 45(c)(1)(A), made applicable to bankruptcy proceedings by Rule 9016, states, “A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person ․” Civil “Rule 45(c)’s geographic limits were crafted to protect third parties from the undue burden of traveling more than 100 miles to provide testimony or produce documents in a proceeding to which they are not a party.” United States v. $110,000 in United States Currency, No. 21 C 981, 2021 WL 2376019, at *3 (N.D. Ill. June 10, 2021) (citing Civil Rule 45(c) advisory committee's note to 2013 amendment). Virtual attendance “prevents the harm Rule 45(c) is meant to guard against.” Id. Civil Rule 45 subpoenas may compel remote testimony “from anywhere so long as the place of compliance (where the testimony will be given by the witness and not where the trial will take place) is within the geographic limitations of [Civil] Rule 45(c).” In re: 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19-MD-2885, 2021 WL 2605957, at *1 (N.D. Fla. May 28, 2021) (finding that “trial subpoenas ․ for remote testimony within 100 miles of [the witnesses’] residences do not violate the geographic limitations of [Civil] Rule 45(c) ․”); see also Int'l Seaway Trading Corp. v. Target Corp., No. 020MC00086NEBKMM, 2021 WL 672990, at *5 (D. Minn. Feb. 22, 2021) (finding that subpoena issued by arbitrator for remote deposition at deponent's home complied with 100-mile territorial limit). “Virtual attendance ․ is consistent with the plain language of [Civil] Rule 45(c)(1)(A) because [the deponent] has been commanded to attend the deposition within 100 miles of where he resides.” Int'l Seaway Trading Corp. v. Target Corp., No. 020MC00086NEBKMM, 2021 WL 672990, at *5.

Although the subpoena directed Ms. Combs to appear in Orlando (Doc. No. 25 at 11), the Court modified the directive to permit Ms. Combs to appear virtually through a remote platform (Doc. No. 29 ¶ 2). As such, Ms. Combs is protected from the burden of traveling more than 100 miles from wherever she may reside. Because Ms. Combs can attend her Rule 2004 Exam virtually in any location she desires, the issue of distance is within her control.

B. Substitute Service of the Subpoena

Secondly, although Ms. Combs was served via substitute service on her husband, the Debtor, the Court finds that such service was effective to confer the Court's jurisdiction over her. Pursuant to Civil Rule 45(b)(1), “[s]erving a subpoena requires delivering a copy to the named person ․” Courts, including courts within the Eleventh Circuit, differ over whether “delivering a copy to the named person” requires a subpoena to be served on a non-party individual by in-hand personal delivery to that individual or whether substitute service upon a “co-occupant/member of household” is permitted. In re Matter Under Investigation by Grand Jury No. 1, No. 10-81252-MC, 2011 WL 761234, at *1 (S.D. Fla. Feb. 24, 2011). Some courts have adopted the “longstanding interpretation” of the phrase to require in-hand personal delivery. In re Matter Under Investigation by Grand Jury No. 1, No. 10-81252-MC, 2011 WL 761234, at *1 (S.D. Fla. Feb. 24, 2011) (internal citations omitted). In In re Matter Under Investigation by Grand Jury No. 1, the District Court for the Southern District of Florida observed that although Civil Rule 45 was amended several times, the revisors did not change the wording to reflect any expansion of the methods of service. Id. As such, the District Court opined that a subpoena “must be personally handed to the person named on the subpoena[,]” id. at *1, as this ensures the subpoena extends the court's jurisdiction over a non-party, consistent with due process, id. at *1 n.2 (collecting cases). See also Harrison v. Prather, 404 F.2d 267, 273 (5th Cir. 1968) (service on plaintiff's attorney did not comply with rule requiring service “upon a person named therein ․ by delivering a copy thereof to such person ․”);  ⁶ Klockner Namasco Holdings Corp. v. Daily Access.Com, Inc., 211 F.R.D. 685, 687 (N.D. Ga. 2002) (holding that “service on [nonparty witness's] wife at their residence did not satisfy the requirements of [Civil] Rule 45 because [the non-party witness] himself was not personally served.”).

By contrast, courts holding that substitute service is effective service under Civil Rule 45(b)(1) reason that nothing in the rule requires or even mentions personal service. In re Falcon Air Exp., Inc., No. 06-11877-BKC-AJC, 2008 WL 2038799, at *2 (Bankr. S.D. Fla. May 8, 2008). Instead, “ ‘if service is made in a manner that reasonably insures actual receipt of the subpoena by the witness[,]’ ” then the “delivery” requirement is met. Id. (quoting King v. Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y. 1997)). Because the term “delivery” is open to interpretation, courts have looked to other parts of Civil Rule 45, including subsection (b)(3), which requires a showing of the “manner of service.” Id. at *3. If only personal service (in hand) was permitted, then “manner of service” would be superfluous. Id. Indeed, requiring personal service of a subpoena under Civil Rule 45(b)(1) “would result in the standard for service of a nonparty witness subpoena being more rigorous than the service required for a summons and complaint. Moreover, it is apparent that restricting service under [Civil] Rule 45(b)(1) to personal service is antithetical to the intent and plain meaning of the drafters of the rules.” Id.; In re Viacao Itapemirim, S.A., 608 B.R. 268, 272-73 (Bankr. S.D. Fla. 2019) (adopting Falcon Air conclusion and finding that service under Civil Rule 45 was effective on debtors’ former principal when the housekeeper at his Miami apartment was served); In re Procom Am., LLC, 638 B.R. 634, 640 (Bankr. M.D. Fla. 2022) (agreeing with Falcon Air and stating, “[I]t appears the recent trend by federal courts in Florida is to permit substitute service.”).

It has been said, and this Court agrees, that recent decisions permitting substitute service on a non-party witness are better reasoned than prior decisions prohibiting such service. State Farm Mut. Auto. Ins. Co. v. Maistrenko, No. CV 19-20850-MC, 2020 WL 486271, at *2 (S.D. Fla. Jan. 30, 2020) (“[T]his Court adopts the ‘better-reasoned, modern, emerging minority position,’ which holds that [Civil] Rule 45 requires service in a manner that reasonably insures actual receipt of the subpoena by the witness.”). In In re Procom America, LLC, 638 B.R. at 640, Judge Michael G. Williamson offered a thoughtful analysis of the issue.

In Procom, the Trustee sought to take a Rule 2004 exam of the debtor's principal via Zoom, and effectuated service upon the principal by serving a copy on his counsel while the principal was in Hungary. Id. at 639. The principal argued that the subpoena should be quashed because Civil “Rule 45 does not permit substitute service on his counsel ․” Id. at 637. The Court, recognizing the determination is fact intensive, evaluated whether substitute service on the principal's counsel was reasonably calculated to reach the principal, rendering it effective. Id. at 641. The Court noted multiple other courts concluded service on the witnesses’ counsel was reasonably calculated to ensure that the witnesses received the subpoenas. Id. at 643. In Procom, counsel actively represented the principal in the case, appearing for the principal at numerous hearings, both counsel and the principal knew the Trustee intended to take the principal's Rule 2004 exam, and the principal actually received the subpoena, thus rendering service on the principal's counsel reasonably calculated to ensure the principal received the subpoena. Id. at 644. As such, the Court held that substitute service was permissible under Civil Rule 45. Id. at 640-41.

The Court then determined that its Civil Rule 45 power extended to the principal because the principal was served, via counsel, within the United States. Id. at 644-45. “When a foreign national is served in the United States, the foreign national is subject to the Court's subpoena power.” Id. at 645. Thus, substitute service on the principal via counsel was sufficient under Civil Rule 45 to subject the principal to the Court's jurisdiction for purposes of the Rule 2004 exam. Id.

The Court agrees with and adopts the reasoning in Judge Williamson's decision in Procom. Here, substitute service on the Debtor for Ms. Combs was effective to subject her to the Court's jurisdiction because it was reasonably calculated to ensure she received the subpoena. The Debtor, Ms. Combs's husband, was served with the subpoena at the Property Ms. Combs owns and upon which she claims a homestead exemption. (Doc. No. 25 at 7, 10, 13-14.) The Debtor testified at his deposition that Ms. Combs was aware of the subpoena and nevertheless did not plan to attend her Rule 2004 Exam. (Id. at 26.) These facts support the Court's conclusion that it has jurisdiction over Ms. Combs. See Falcon Air, No. 06-11877-BKC-AJC, 2008 WL 2038799, at *4 (evidence supported conclusion that substitute service on nonparty witness's spouse was reasonably calculated to ensure the witness received it where the spouse was served at a residence owned by the witness and identified as the witness's homestead, and the witness timely received the subpoena).

C. Swedish Residency

Third, Ms. Combs argues that because she was a resident of Sweden when PR Group scheduled her Rule 2004 Exam, PR Group was required to follow Civil Rule 45(b)(3) and 28 U.S.C. § 1783(a), which supply the rules regarding service upon a person residing outside the United States. (Doc. No. 37 at 8-14.) In Viacao Itapemirim, the bankruptcy court found that substitute service of a subpoena for a Rule 2004 exam on the nonparty witness's housekeeper at a Miami apartment was reasonably calculated to ensure delivery to the witness, even though the witness argued that he had not been in the United States since two months before the subpoena was served and that he was a resident of Brazil. 608 B.R. at 271. The court found the following facts established that service on the housekeeper was reasonably calculated to ensure delivery to the witness: (1) the witness and his family resided in the Miami apartment when the witness was in Miami; (2) the witness was identified as a tenant or resident of the Miami apartment in leasehold papers; (3) the witness had a Florida driver's license and owned a vehicle registered in Florida; (4) the witness's children attended a local school; (5) the witness paid rent for the apartment; (6) copies of rent checks and Florida Department of Highway Safety & Motor Vehicles records listed the apartment as the witness's address; (7) through a Florida business the witness was named as a visa sponsor for his wife; and (8) the witness timely received the subpoena. Id. at 271, 274. “For purposes of this Order, even if [the witness] was not in the United States when the Subpoena was served, and even if [the witness] resided in Brazil, [the witness] maintained a presence at the ․ [a]partment sufficient for service on him at that location to be reasonable under [Civil] Rule 45.” Id. at 274.

As stated above, the Court finds that substitute service of the subpoena on Ms. Combs via the Debtor was reasonably calculated to ensure receipt, and it also finds that even if Ms. Combs resided in Sweden, she maintained a presence at the Property sufficient for service on her there to be reasonable under Rule 45. Ms. Combs is the owner of the Property, claims a homestead exemption for it, and retains personal property there. (Doc. No. 25 at 7, 10, 13-14, 27.) Additionally, Ms. Combs is a member of one Florida limited liability company (the Debtor's employer), and the manager and registered agent for another Florida limited liability company. (Id. at 17, 19.) As in Viacao Itapemirim, these facts are sufficient to establish that service on the Debtor at the Property was sufficient to be reasonable under Civil Rule 45, even if Ms. Combs is a resident of Sweden.

D. Failure to Tender Witness and Mileage Fees

Fourth, Ms. Combs argues that the subpoena should be quashed because PR Group did not provide a mileage allowance or witness fee pursuant to Civil Rule 45. (Doc. No. 37 at 14-15.) This argument could have been raised when the Court first considered the Motion to Compel. Additionally, Ms. Combs fails to demonstrate that these two defects warrant the necessary extraordinary circumstances for granting relief from the Order under Civil Rule 60(b)(6). The Court notes that the Rule 2004 Exam will be conducted via Zoom, so Ms. Combs will not be traveling to attend the exam, and PR Group states in its response to the Motion that it will pay the witness fee after the Motion is resolved. (Doc. No. 41 at 6 n.3.)

E. Health Issues

Ms. Combs's fifth basis for her argument that the Court should quash the subpoena is that her health does not permit her to appear for the Rule 2004 Exam. (Doc. No. 37 at 14-16.) Ms. Combs lists various health conditions and states that “[s]he is concerned that the deposition poses serious health risks.” (Id. at 15.) She also states, “Even if on the day of the Examination, she is having a good day, in terms of memory, there is a genuine concern that due to the stress of the examination, under those circumstances she is not capable of fully comprehending the questions nor providing accurate answers.” (Id. at 16.) But Ms. Combs also states that most days, she remembers most things. (Doc. No. 38 ¶ 45.)

The only evidence submitted in support of these assertions is Ms. Combs's affidavit, which contains hearsay statements that her “condition will deteriorate tremendously” and her doctors advised her against appearing for the Rule 2004 Exam. (Id. ¶¶ 35, 44, 46.) No other evidence, such as medical records or doctors’ notes, was presented to the Court, which the Court would have reviewed in camera, to support Ms. Combs's assertions. Again, these are matters that could have been presented to the Court when it first considered the Motion to Compel. Thus, Ms. Combs fails to demonstrate that her health issues warrant relief from or reconsideration of the Order.

F. Limitations of Rule 2004 Exam

Ms. Combs's final arguments are that if the Rule 2004 Exam goes forward, PR Group should be prohibited from asking her questions pursuant to the pending proceeding rule about the adversary proceeding it filed against the Debtor, in which it seeks a declaration that its $22.75 million judgment against the Debtor is non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). (Doc. No. 37 at 16-17.) In addition, Ms. Combs asks the Court to prohibit PR Group from inquiries concerning her assets or that may reveal privileged communications between her and the Debtor. (Id. at 18.)

Regarding Ms. Combs first argument, that the pending proceeding rule precludes a 2004 examination once an adversary proceeding has been commenced, the Court agrees this is typically true. Rule 2004 is very broad and permits an examination of any entity regarding the debtor's acts, conduct, or property, the debtor's liabilities and financial condition, and any matter that may affect the administration of the debtor's estate, or the debtor's right to a discharge. Fed. R. Bankr. P. 2004(b)(1)(A)-(D). Under the pending proceeding rule, Rule 2004 examinations are limited after an adversary proceeding or other litigation is filed because “a litigant might receive an unfair advantage in litigation because requests for production and examinations under Rule 2004 lack some of the procedural safeguards that exist for discovery conducted in pending litigation.” Barnwell Law Gr., P.C. v. Howell (In re 3 Kings Constr. Residential LLC), No. 22-10965-PMB, 2024 WL 2264338, at *3 (Bankr. N.D. Ga. May 17, 2024). “For example, a witness has no general right to representation by counsel during a deposition, and the right to object to immaterial or improper questions is limited.” In re Washington Mut., Inc., 408 B.R. 45, 50 (Bankr. D. Del. 2009). The pending proceeding rule corrals use of Rule 2004 examinations to the limitations in the Civil Rules once an adversary proceeding has been commenced. In re Buick, 174 B.R. 299, 305 (Bankr. D. Co. 1994) (trustee limited to procedures in Civil Rules after filing adversary proceeding). In addition, “courts may limit or prohibit Rule 2004 examinations sought for improper purposes, such as to abuse or harass.” In re Waddell, No. 24-11769, 2025 WL 957733, at *5 (Bankr. S.D.N.Y. Mar. 28, 2005).

But there are limits to the application of the pending proceeding rule; entities who are neither parties to nor affected by the pending adversary proceeding do not require the greater protections afforded under the Civil Rules and thus may be examined under Rule 2004. In re Buick, 174 B.R. at 305 (citing Intercontinental Enters. Inc. v. Keller (In re Blinder, Robinson & Co.), 127 B.R. 267, 275 (D. Colo. 1991)). Here, Ms. Combs is not a co-debtor in the Debtor's Chapter 7 case nor is she a co-defendant in PR Group's adversary proceeding against Mr. Combs. As such, Ms. Combs is not a party to the pending adversary proceeding against her husband, nor does she claim litigation is pending against her in another forum. She was not a defendant in PR Group's lawsuit giving rise to its judgment debt that it seeks to except from the Debtor's discharge here. (Adv. Pro. No. 6:24-ap-00110, Doc. No. 1 at 14-29.)

Whether Ms. Combs is “affected by” the pending adversary proceeding is a more nuanced question. Here, the couple has just one joint asset: the Debtor lists a tenancy by the entirety exemption in a checking account on Schedule C containing a modest sum. (Doc. No. 1 at 15.) He lists no joint debts or non-filing co-debtors on Schedules D, E/F, or H. (Id. at 17-27, 29). He lives in Ms. Combs’ home and drives her car, but they share no joint financial obligations which could leave Ms. Combs affected by the denial of his discharge, should PR Group prevail in its adversary proceeding. Accordingly, the Court concludes the pending proceeding rule should not preclude the Rule 2004 Exam of Ms. Combs.

Moreover, although PR Group did not raise this point, no adversary proceeding was pending when PR Group sought its Rule 2004 Exam of Ms. Combs. “As implied by the rule's name, the ‘pending proceeding rule’ cannot apply if no pending proceeding exists in which a movant can seek to discover evidence.” In re 3 Kings Constr. Residential LLC, No. 22-10965-PMB, 2024 WL 2264338, at *4 (pending proceeding rule did not apply after case dispositive sanction striking answers and entering a default). Here, the facts are different than those in 3 Kings Constr. Residential LLC, insofar as the pending proceeding rule in that case did not apply because it was raised after the court dismissed the adversary proceeding, and here a proceeding is now currently pending, but PR Group sought the Rule 2004 Exam approximately one month before the complaint was filed, when no proceeding was pending.

PR Group issued the subpoena for Ms. Combs on August 13, 2024 (Doc. No. 18) and set the Rule 2004 Exam for September 6, 2024, but Ms. Combs did not attend (Doc. No. 25 at 11). Approximately one month after issuing the subpoena for Ms. Combs’ Rule 2004 Exam, and up against a twice extended ⁷ deadline, PR Group filed the complaint initiating the adversary proceeding against the Debtor. (Adv. Pro. No. 6:24-ap-00110-TPG, Doc. No. 1). Thereafter, on October 18, 2024, PR Group filed the motion seeking to compel Ms. Combs to sit for her Rule 2004 Exam “either in-person or via Zoom” (Doc. No. 25 at 5), which the Court granted (Doc. No. 29). The Court should not permit a person to avoid an examination set weeks prior to the commencement of an adversary proceeding to skip the examination and later object to attendance when such is compelled, using the pending proceeding rule as a sword. This is not to say this Court would always deem the pending proceeding rule inapplicable, for example, if a subpoena for 2004 exam issues and a complaint is filed that same day or a day after, but here such circumstances are not present.

Nevertheless, PR Group conceded it would not pursue a line of questioning related to the adversary proceeding. (Doc. No. 41 at 7.) As such, PR Group has somewhat self-limited. As the Court noted above, PR Group did not request documents from Ms. Combs in connection with her Rule 2004 Exam and seeks testimony only. So long as PR Group's inquiries remain within the scope of Rule 2004(b)(1) and do not elicit privileged or protected matters, they are permitted. If Ms. Combs is asked questions that are outside the scope of Rule 2004 or encompass privileged or protected information, then her attorney may object. If a dispute follows regarding whether the information is outside the scope, privileged or protected, the parties may bring the matter to the Court for resolution.

III. CONCLUSION.

Ms. Combs presents arguments that are unavailing and could have been addressed when the Court first considered the Motion to Compel. Ms. Combs also fails to demonstrate mistake, inadvertence, surprise, or excusable neglect, that the Order is void, or that extraordinary circumstances for granting relief from the Order exist; thus, she is not entitled to relief under Civil Rule 60(b).

Accordingly,

it is ORDERED as follows:

1. The Motion (Doc. No. 37) is DENIED; and

2. Ms. Combs must appear via Zoom for her Rule 2004 Exam within fourteen days of the date of this Order at a date and time mutually agreeable to Ms. Combs and PR Group.

FOOTNOTES

1.   Unless specified otherwise, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure.

2.   The Motion amends a motion seeking the same essential relief filed by Ms. Combs, pro se, on November 29, 2024. (Doc. No. 31.)

3.   On September 19, 2024, PR Group filed an adversary proceeding against the Debtor, Case No. 6:24-ap-00108-TPG, which it voluntarily dismissed on September 25, 2024. (Case No. 6:24-ap-00108-TPG, Doc. Nos. 1, 3.) PR Group filed a new adversary proceeding against the Debtor on September 20, 2024, which is pending. (Case No. 6:24-ap-00110-TPG, Doc. No. 1.)

4.   Ms. Combs avers that all personal property she intended to bring to Sweden was in Sweden when the subpoena was served and that “[t]here is nothing in the Florida house, nor is there at this time anything in the Florida house that I intend on shipping to Sweden; anything currently in the house, except perhaps Mr. Combs[’s] clothing[,] will be donated to charity.” (Doc. No. 38 ¶¶ 31, 32.) This does not contradict the Debtor's statement that Ms. Combs had personal items at the Property. (Doc. No. 25 at 27.)

5.   As Ms. Combs states in her affidavit, she moved to Sweden the same month the Debtor filed for bankruptcy, “shortly before this case was filed.” (Doc. No. 1 at 1; Doc. No. 37 at 2; Doc. No. 38 ¶ 21.)

6.   “[T]he decisions of the United States Court of Appeals for the Fifth Circuit ․ as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.” Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981). Although Harrison v. Prather is binding authority, in Harrison, the court provided no reasoning, asserting only that the “subpoena was not served in conformity with the rule.” 404 F.2d at 273. As noted in In re Falcon Air Express, Inc., No. 06-11877-BKC-AJC, 2008 WL 2038799, at *4 (Bankr. S.D. Fla. May 8, 2008), “the Harrison court did not conduct an analysis as to whether personal service was the only permissible form of service under Rule 45.” Instead, it “merely provides a narrow, limited holding that service of a subpoena for a party on that party's counsel is not service which conforms to the rule.” Id. The court did not consider or comment on whether other forms of service would be permissible under Rule 45, nor did it address substitute service of a nonparty. Id.

7.   Prior to issuing Ms. Combs’ subpoena, PR Group had requested and received two extensions of the time in which to file an adversary complaint against the Debtor pursuant to 11 U.S.C. § 523(a) or § 727. (Doc. Nos. 12, 14, 19, 20.) The Debtor agreed to each extension. (Doc. Nos. 12, 14, 19, 20.) The basis for the extensions was to supply the Debtor and subpoenaed third parties with additional time to comply with document production and to permit PR Group to review the materials produced in advance of any examination. (Doc. Nos. 11, 16, 17.)

Tiffany P. Geyer United States Bankruptcy Judge