Subpoena served on man in Virginia is invalidated

The CNMI Superior Court has quashed the subpoena served on a man in Manassas, Virginia that commanded him to come to Saipan to testify about his late father’s estate assets.

In an order Tuesday, Associate Judge Joseph N. Camacho ruled that the subpoena is invalid because the administrator of the late Dr. Calistro C. Cabrera’s estate caused a subpoena to be served on Donald Cabrera without providing the mandatory one-day $40 witness fee as required by the Commonwealth Rules of Civil Procedure.

James Cabrera is the administrator of Dr. Cabrera’s estate. Donald and James Cabrera are sons of Dr. Cabrera. The doctor passed away in November 2016, according to court records.

There is a dispute between the children of Dr. Cabrera concerning a $283,000 payment that the doctor allegedly made to Donald Cabrera before he passed away.

On April 7, 2018, administrator James Cabrera had his brother served with a subpoena in Virginia. The administrator never tendered his brother with the $40 attendance fee.

The administrator stated he would tender the fee if Donald Cabrera appears and testifies.

Donald Cabrera then moved to quash the subpoena, citing that the Commonwealth Rules of Civil Procedure requires that the attendance fee be tendered simultaneously with the subpoena.

The motion was heard last Feb. 19. Rene Holmes appeared on behalf of the estate. Administrator James Cabrera was also present. Lawyer Michael Evangelista made a limited appearance on behalf of Donald Cabrera to contest whether the court has jurisdiction over his client.

In granting the motion to quash, Camacho said the administrator’s argument that it will issue the witness fee if Donald Cabrera appears and testifies violates the plain language of the Commonwealth Rules of Civil Procedure.

Camacho said the rules states that “service of a subpoena upon a person…shall be made by delivering a copy thereof of such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance,” which is currently $40.

Camacho said the use of the phrase “shall be made,” combined with the conjunctive effect of “and […] by tendering to that person,” shows that the plain language of the rules requires a simultaneous tendering of the attendance fee and the subpoena.