In a mortgage enforcement action, the plaintiff moved for summary judgment.
The defendants subsequently brought a motion under Rule 31.10 for leave to examine four non-parties, intending to use the evidence to oppose the summary judgment motion.
The court dismissed the motion, finding it was an abuse of process as it was brought under the wrong rule to avoid the test under Rule 39.02.
Furthermore, the defendants failed to serve the non-parties with the motion, and the cumulative test under Rule 31.10 was not met because discoveries had not yet taken place.
