Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-01011-AWT Document 69 Filed 07/08/2005 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NICHOLAS CAGGIANIELLO, NEIL CASE NO. 303CV10l 1(AWT)
HOWARD and THOMAS FALCO, on :
behalf of themselves and all other similarly :
situated employees of FSG PrivatAir, Inc. :
PLAINTIFFS, 2
VS. :
FSG PRIVATAIR, INC. and in their
individual and official capacities DAVID C. :
HURLEY, HUGH F. REGAN, THOMAS H. :
MILLER and THOMAS L. CONNELLY :
DEFENDANTS. JULY 7, 2005
MEMORANDUM OF LAW IN SUPPORT OF MOTIONFOR
PROTECTIVE ORDER AND BRIEFING SCHEDULE
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Defendants
respectfully submit this memorandmn of law in support of their Motion for Protective
Order and Briefing Schedule.
I. BACKGROUND:
The Plaintiffs bring three claims against the Defendants under Section 7 (a) of the
FLSA. However, the Defendant, FSG PrivatAir, Inc. ("PrivatAir") is a Common Air
Carrier and subject to Title II of the Railway Labor Act ("RLA") under 45 U.S.C. § 181.
Therefore, the Defendants are exempt from the FLSA pursuant to 29 U.S.C. § 213(b) (3)
because the Plaintiffs are employed by a Common Air Carrier. The Court has limited
discovery to the issue of subject matter jurisdiction relating to PrivatAir’s status as a
Common Air Carrier. The Defendants have filed Motions to Dismiss and for Sanctions to

Case 3:03-cv-01011-AWT Document 69 Filed 07/08/2005 Page 2 of 4
be renewed once the outstanding discovery obligations have been satisfied. The Defendants
have now complied with all outstanding discovery obligations and PrivatAir has produced
evidence that it has conducted thousands of charter flights during the P1aintiffs’
employment. The Plaintiffs are now attempting to extend discovery and have noticed the
deposition of Defendant Hugh Regan.
II. LAW:
Rule 26(c) provides that "upon motion by a party or by the person from whom
discovery is sought . . . and for good cause shown, the court . . . may make any order
which justice requires to protect a party or person from armoyance, embarrassment,
oppression, or undue burden or expense .... " Fed. R. Civ. P. 26(c). "A plain reading of
the language of Rule 26(c) demonstrates that the party seeking a protective order has the
burden of showing that good cause exists for issuance of that order. It is equally apparent
that the obverse also is true, i.e., if good cause is not shown, the discovery materials in
question should not receive judicial protection .... " In re Agent Orange Product Liability
Litigation, 821 F .2d 139, 145 (2d Cir. 1987), cert. denied sub nom. Dow Chemical Co. v.
·A , 484 U.S. 953, 108 S. Ct. 344, 98 L. Ed. 2d 370 (1987).
III. ARGUMENT:
The P1aintiffs’ Notice of the Deposition of Defendant Hugh Regan ("Regan") for
July 14, 2005 is procedurally defective and contravenes the Court’s Orders in this case.
The time to conduct subject matter jurisdiction discovery has ended in this case and the
Notice of Deposition is untimely and does not even limit the scope of the deposition to
the issue of subject matter jurisdiction and the Common Air Carrier issue.

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The Court has limited discovery in this case to the issue of subject matter
jurisdiction relating to Defendant FSG PrivatAir’s ("PrivatAir") status as a Common Air
Carrier. The time to complete this discovery ended on April 26, 2004 pursuant to the
Court’s Order dated December 24, 2003 and the Defendants filed their Renewed Motions
to Dismiss and for Sanctions at this time. However, the Renewed Motions to Dismiss
and for Sanctions were denied without prejudice to be renewed once the Defendants have
complied with outstanding discovery obligations pursuant to the Court’s Orders on
March 15, 2005. PrivatAir provided supplemental discovery responses showing that it
has conducted thousands of charter flights during the PlaintiiTs’ employment and the
Defendants have complied with all outstanding discovery obligations. Therefore, the
Defendants move for a protective order to prevent the deposition of Regan and seek a
briefing schedule to file Renewed Motions to Dismiss and for Sanctions based upon the
supplemental discovery responses.
IV. CONCLUSION:
For all of the foregoing reasons, the Defendants respectfully request that a
Protective Order be granted to prevent the deposition of Regan and that a briefing
schedule be approved for the filing of Renewed Motions to Dismiss and for Sanctions.
Respectfully Submitted
THE DEFEND NTS.
By:
Joseph C. Maya, E . ct! 17742
Russell J. Sweeting, Esq. ct/24877
Maya & Associates, P. C.
266 Post Road East
Westport, CT 06880
Telephone: (203) 221-3 100
Fax No: (203) 221-3199

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CERTIFICATION
This is to certify that a copy of the foregoing was faxed and mailed this 7th day of
July 2005 to:
James T. Baldwin, Esq.
John B. Kaiser, Esq.
Coles, Baldwin & Craft, LLC
1261 Post Road, P.O. Box 577
Fairfield, CT 06824
Russell J. Sweeting