UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

__________________________________ 

 ) 

In re: ) CASE NO. 19-22057-RAM

 ) CHAPTER 7 

PACIFICO SUR GROUP LLC, ) (Jointly Administered)

 ) 

Alleged Debtor. )

 )

 )

 

ORDER DENYING MOTION TO QUASH

 

The Court conducted a hearing on June 2, 2020, on Francisco 

Baeza’s (“Baeza”) Motion to (A) Quash Subpoena to Testify at a 

Deposition in Bankruptcy Case and (B) to Vacate Order Granting 

Petitioning Creditor’s Motion for Entry of an Order Pursuant to 

Bankruptcy Rule 2004 Granting Petitioning Creditor’s Motion for 

Entry of an Order Pursuant to Bankruptcy Rule 2004 Requiring 

Examination of Francisco Baeza as Void Under Fed. R. Civ. P. 60(B)(4) 

(the “Motion to Quash”) [DE #173]. Baeza is the principal of the 

Robert A. Mark, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on June 10, 2020.

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Debtor, Pacifico Sur Group, LLC (“Pacifico”), and of Chilean 

Fisheries Group, LLC (“Chilean” and, together with Pacifico, the 

“Debtors”), a debtor whose bankruptcy case is being jointly 

administered with Pacifico’s bankruptcy case. Although Baeza 

ultimately consented to entry of an order for relief in both Debtors’ 

bankruptcy cases, the Debtors’ bankruptcy cases began as contested 

involuntary cases prosecuted by the creditors who seek to depose 

Baeza and whose subpoenas are the subject of Baeza’s Motion to Quash.

Factual and Procedural Background 

Affinity Capital Funding, LLC (“Affinity”), Kash Capital

(“Kash”), Advantage Platform Services Inc. d/b/a Advantage Capital 

Funding (“Advantage”), and Torro, LLC (collectively, the 

“Petitioning Creditors”) loaned money to the Debtors to finance the 

Debtors’ fisheries operations. The Debtors defaulted on their 

payment obligations to the Petitioning Creditors, who sought entry 

of state court judgments against the Debtors for breach of loan 

agreements and damages arising from the breach. On September 10, 

2019, Affinity filed an involuntary petition against the Debtors

seeking orders for relief under chapter 7 of the Bankruptcy Code. 

The three other Petitioning Creditors subsequently joined in 

Affinity’s involuntary petitions.

Through their principal, Baeza, the Debtors vigorously 

contested the involuntary petitions. On November 17, 2019, the 

Court entered an order scheduling a March 4, 2020 trial on the 

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contested involuntary petitions [DE #44].1 To support their claims 

that the Debtors were insolvent and the proper subjects of bankruptcy 

relief, the Petitioning Creditors sought discovery from the Debtors.

On February 5, 2020, Affinity, Advantage, and Kash filed two 

Notices of Taking Rule 7030 Deposition that subpoenaed (i) Baeza [DE 

#103] and (ii) the corporate representative of the Debtors [DE #102] 

to appear for deposition on February 18, 2020. The Court will refer 

to the notice directed at Baeza, as amended by DE #106, as the “7030 

Subpoena.” 

On February 18, 2020, the Debtors produced Agustin Palma as 

their corporate representative. Baeza failed to appear for his

deposition. During the course of Mr. Palma’s deposition, it became 

apparent that Baeza is the most knowledgeable corporate 

representative and is the person who should have been produced by 

the Debtors for examination. In addition, during or after Palma’s 

deposition, Debtors’ counsel spoke to Baeza by telephone and 

obtained Baeza’s permission to consent to entry of orders for relief 

in both Debtors’ bankruptcy cases. On February 19, 2020, the Debtors 

filed formal consents to entry of orders for relief [DE #124]. 

1 For ease of reference, the Court will refer to docket entry numbers 

in the Pacifico case only. When referring to the Debtors, plural, 

but citing only a single docket entry, either a parallel filing was 

made in the Chilean case or the filing in the Pacifico case 

referenced both Debtors.

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On March 9, 2020, all four Petitioning Creditors moved for 

entry of an order compelling Baeza to appear for examination under 

Federal Rule of Bankruptcy Procedure 2004 (the “Motion to Compel”) 

[DE #146]. Although the Court’s local rules permit the scheduling 

of Rule 2004 examinations by notice, LR 2004-1(A), the Federal Rules 

of Bankruptcy Procedure expressly provide that an order authorizing 

a Rule 2004 examination may be requested by motion, Fed. R. Bankr. 

Pro. 2004(a). Therefore, the Court is treating the Motion to Compel 

as the equivalent of a notice of Rule 2004 examination (the “2004 

Subpoena”).

By order dated April 9, 2020, the Court granted the Motion to 

Compel (the “Order Compelling 2004 Examination”) [DE #164]. The 

order directed Baeza to appear for a Rule 2004 examination on April 

30, 2020, and stated that noncompliance with the order may result

in the Court “issu[ing] an order of contempt requiring the United 

States Marshal to detain Francisco Baeza if he is in the United 

States or to detain him upon his arrival in the United States should 

he be abroad.”

On April 30, 2020, Baeza filed his Motion to Quash, seeking 

entry of an order quashing the 7030 Subpoena and vacating the Order 

Compelling 2004 Examination. Baeza argues both that he was not 

properly served with the 7030 Subpoena, the 2004 Subpoena, and the 

Order Compelling 2004 Examination, and that he is beyond the Court’s 

subpoena power because he is a foreign national living abroad. 

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On May 18, 2020, the Petitioning Creditors filed a response in 

opposition to the Motion to Quash (the “Response”) [DE #187]. In 

their Response, the Petitioning Creditors moved for entry of an 

order to show cause why Baeza should not be held in contempt for 

noncompliance with the Order Compelling 2004 Examination (the 

“Response”) [DE #187]. Baeza filed his reply on May 28, 2020 [DE 

#195], and the Court conducted a hearing on this contested matter 

on June 2, 2020.

Service was Sufficient

In their Response, the Petitioning Creditors confirm that they

served the 7030 Subpoena, the 2004 Subpoena, and the Order Compelling 

2004 Examination, on Baeza as follows: (i) by email to 

francisco@chileanfisheries.com, and (ii) by first class mail to the 

following three addresses: (i) 400 Sunny Isles Boulevard, Unit 119, 

Sunny Isles, FL 33160 (the “Sunny Isles Condo”), (ii) 20900 NE 30 

Avenue, Suite 200-32, Aventura, FL 33180 (the “Aventura Office”), 

and (iii) 6358 Avalon Pointe Court, Boca Raton, FL 33496 (the “Boca 

Office”). In support of the adequacy of these methods of service, 

the Petitioning Creditors attached to their Response copies of (i) 

Florida real property records, (ii) loan documents between the 

Debtors, Baeza, and Affinity, and (iii) corporate records filed by 

the Debtors with the Florida Secretary of State and published online 

at www.sunbiz.org. 

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The loan documents provide that notices “would be deemed to 

have been validly served” on Pacifico if sent by email to 

francisco@chileanfisheries.com and by ground mail to an address 

identical to the Aventura Office except for the suite number.2 The

Florida real property records indicate that Baeza and his wife own 

the Sunny Isles Condo. The corporate records published online at 

www.sunbiz.org confirm that the Aventura Office is the mailing

address of the Debtors and of Pacifico’s manager, Baeza, and that 

the Boca Office is the mailing address of Chilean’s manager, Baeza.

As stated at the June 2nd hearing, the Court finds that Fed. 

R. Civ. Pro. 45 governs the adequacy of service of the 7030 Subpoena 

and the 2004 Subpoena, and that service of a subpoena is proper 

under Rule 45 if the method of service was “reasonably calculated” 

to ensure receipt by the deponent. In re Viacao Itapemirim, S.A.,

608 B.R. 268, 272-73 (Bankr. S.D. Fla. 2019).

The facts here demonstrate that service was sufficient. Baeza

argues that he is a resident of Chile and was not in the United 

States when the Petitioning Creditors served him. This might have 

been significant if Baeza was simply a third-party witness. He is 

not. Rather, he is the principal of the Debtors who owns real 

property in the Southern District of Florida, operated businesses 

2 The Aventura Office address is 20900 NE 30th Ave., Suite 200-32, 

Aventura, FL 33180. The notice address for Pacifico in the Affinity 

loan documents is 20900 NE 30th Ave., Suite 200-14, Aventura, FL 

33180-2157.

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incorporated in the State of Florida, and actively participated in 

the Debtors’ bankruptcy cases in the Southern District of Florida, 

including consenting to entry of orders for bankruptcy relief.

 Moreover, Baeza obviously received actual notice of the 7030 

Subpoena, the 2004 Subpoena, and the Order Compelling 2004 

Examination because he filed his Motion to Quash on the date on 

which he was due to be examined by the Petitioning Creditors under 

Fed. R. Bankr. Pro. 2004. Although actual notice is not, alone, a 

determinative factor, it is a significant factor, particularly in 

this case where the Court is analyzing the sufficiency of service 

on the principal of a corporate debtor. Viacao, 608 B.R. at 273 -

274. For these reasons, and the additional reasons stated on the 

record at the hearing, which are incorporated here by reference, the 

Court finds that service on Baeza was adequate.

Therefore, it isORDERED as follows:

1. The Motion to Quash is denied.

2. The Petitioning Creditors’ request for entry of an order 

to show cause is denied without prejudice to the Petitioning 

Creditors renewing their request if Baeza fails to comply with this 

Order.

3. Unless otherwise agreed by the Petitioning Creditors, 

Baeza shall appear for a video-conference deposition by the 

Petitioning Creditors no later than June 30, 2020. 

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###

COPIES TO:

Gary M. Freedman, Esq.

Barry Seth Turner, Esq.

Laudy Luna, Esq.

AUST

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