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

Case 3:03-cv-01011-AWT

Document 62

Filed 04/29/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT _____________________________________________ : NICHOLAS CAGGIANIELLO, NEIL : CASE NO. 303CV1011(AWT) HOWARD and THOMAS FALCO, on : behalf of themselves and all other similarly : situated employees of FSG PrivatAir, Inc. : : PLAINTIFFS, : 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. : APRIL 28, 2005 _____________________________________________ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND SANCTIONS

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, PrivatAir respectfully submits this memorandum of law in support of its Motion for Protective Order. I. BACKGROUND: The Plaintiffs bring three claims against the Defendants under Section 7 (a) of the FLSA. However, the Defendant, 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. II. LAW:

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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 annoyance, 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. Ryan, 484 U.S. 953, 108 S. Ct. 344, 98 L. Ed. 2d 370 (1987). III. ARGUMENT: Pursuant to Rule 26 (c) of the Federal Rules of Civil Procedure, the Defendant FSG PrivatAir, Inc. ("PrivatAir") hereby moves for a protective order in response to the Plaintiffs' refusal to abide by counsel's withdrawal of discovery requests before this Court at oral argument on June 18, 2004. In addition, PrivatAir requests that Plaintiffs' counsel be sanctioned for misrepresentations to the Court that now require PrivatAir to bring this Motion. PrivatAir complied in good faith with Judge Martinez's Order dated March 9, 2005 by providing supplemental responses on March 21, 2005 to Plaintiffs' discovery requests dated January 23, 2004. At the same time, the undersigned informed Plaintiffs' counsel that PrivatAir is unable to provide tens of thousands of pages of trip sheet documents generated for the thousands of flights it operated between July 2000 and July 2003 without putting an undue burden on its business operations. In addition, the

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undersigned pointed out that Attorney Baldwin, Plaintiffs' counsel, withdrew the production request for the trip sheet documents for each flight at oral argument before Judge Martinez on June 18, 2004. See Transcipt of Hearing on Motion to Compel Before the Honorable Donna F. Martinez, page 113 attached hereto as Exhibit A. Therefore, PrivatAir respectfully requests a Protective Order to enforce Plaintiffs' counsel's withdrawal of the discovery request for trip sheet documents and requests that Plaintiffs' counsel be sanctioned for requiring PrivatAir to bring this Motion. IV. CONCLUSION: For all of the foregoing reasons, PrivatAir requests that a Protective Order be granted and that Plaintiffs' counsel be sanctioned.

Respectfully Submitted FSG PRIVATAIR, INC. By: _______________________ Joseph C. Maya, Esq. ct/17742 Russell J. Sweeting, Esq. ct/24877 Maya & Associates, P. C. 266 Post Road East Westport, CT 06880 Telephone: (203) 221-3100 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 28th day of April 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

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