Free Response - District Court of Connecticut - Connecticut

Case 3:02-cv-01302-JCH

Document 457

Filed 08/30/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT SHAWN POULIOT Plaintiff v. PAUL ARPIN VAN LINES, INC. et al. Defendants : : : : : : : : :

CIVIL ACTION NO. 3:02 CV 1302 (JCH)

August 29, 2005

DEFENDANTS PAUL ARPIN VAN LINES, INC.'S AND ARPIN LOGISTICS, INC.'S RESPONSE TO PLAINTIFF'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF TAKING VIDEOTAPED DEPOSITIONS FOR PURPOSES OF TRIAL Defendants Paul Arpin Van Lines, Inc. and Arpin Logistics, Inc. (hereinafter collectively "Arpin") hereby submit this Response to Plaintiff's August 26, 2005 Supplemental Memorandum in Support of Taking Videotaped Depositions for Purposes of Trial. Arpin's position as to these depositions is set forth in its August 23, 2005 Supplemental Memorandum of Law, which is incorporated herein by reference.1 However, Plaintiff has once again failed to meet his burden of demonstrating that the witnesses are unavailable as required by Fed. R. Evid. 804.2 So that an accurate summary of this issue may be reviewed by the Court, this Response is hereby filed.
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The witnesses whose testimony is at issue are William Tweedy, William Mottla, Joseph Rocha, Erica Ramirez, Michael Kovac, Agatha Devito, and Petra Milks.

As the proponent of the use of videotaped depositions at trial, Plaintiff must demonstrate to the Court both (a) that the witnesses are unavailable; and (b) that he used due diligence in his attempts to secure the witnesses' attendance at trial. Kirk v. Raymark Industries, Inc., 61 F.3d 147, 165 (3d Cir. 1995), cert. denied 516 U.S. 1145, 116 S. Ct. 1015, 134 L.Ed.2d 95 (1996); Moore v. Mississippi Valley State University, 871 F.2d 545, 552 (5th Cir. 1989) (plaintiff's assertion that witness was unavailable, without further explanation, was insufficient); Williams v. United Dairy Farmers, 188 F.R.D. 266, 272 (S.D. Ohio 1999) (proponent must establish that reasonable efforts were undertaken to secure the witness's attendance at the hearing). While, in his August 26th Supplemental Memorandum of Law, Plaintiff has set out certain mileage distances, he has not demonstrated to the Court that he has used due diligence to try to secure the witnesses' attendance at trial. Accordingly, he has failed to make the showing required for the use of videotaped depositions at trial.

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Case 3:02-cv-01302-JCH

Document 457

Filed 08/30/2005

Page 2 of 4

Fed. R. Civ. P. 45 provides that a trial subpoena may be served outside the district anyplace that is within 100 miles of the place of trial. The 100-mile radius is calculated based upon a straight line measurement, "as the crow flies." Palazzo v. Corio, 204 F.R.D. 639 (E.D. N.Y. 1998) citing SCM Corp. v. Xerox Corp., 76 F.R.D. 214, 215-16 (D. Conn. 1977).3 In his August 26th Supplemental Memorandum of Law, Plaintiff has mistakenly provided the Court with what appears to be the driving mileage to Bridgeport for each witness, rather than "as the crow flies" distances, as the Rules require. Correctly calculated "as the crow flies" distances, place the following witnesses within the Court's subpoena power: 1. William Tweedy (West Warwick, RI) ­ 94 miles 2. William Mottla (Douglas, MA) - 96 miles 3. Agatha Devito (Hauppauge, NY) ­ 25 miles 4. Petra Milks (Hauppauge, NY) ­ 25 miles Accordingly, even though it should not have been Defendants' burden to make this showing, these four witnesses are clearly available for trial. Moreover, as set forth in Arpin's August 23, 2005 Supplemental Memorandum, Mr. Kovac and Ms. Ramirez, like the other witnesses, were deposed. Thus, if truly unavailable,4 their depositions are required to be used at trial. See Ruehle v. Lifespring, Inc., No. 89 CV 7679 (GLG), 1992 WL 34150, *1 (S.D. N.Y. February 20, 1992) (where witness has already been deposed and party did not seek to record initial deposition on videotape, that party "must now make do with the deposition transcripts").
Arpin concedes that Joseph Rocha, Erica Ramirez and Michael Kovac are outside this 100-mile radius. Mr. Rocha will appear voluntarily at trial. Plaintiff has not explained what diligence he has undertaken to secure attendance of these witnesses at trial. Kirk, 61 F.3d 147, 165.
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Case 3:02-cv-01302-JCH

Document 457

Filed 08/30/2005

Page 3 of 4

WHEREFORE, Arpin respectfully requests that this Court issue an Order granting the following relief, as set forth in Arpin's August 23, 2005 Supplemental Memorandum of Law on this issue: a. Petra Milks and Agatha Devito are not required to appear for videotaped deposition but, instead, shall appear at trial by virtue of subpoenas that will be served by either or both parties; b. Joseph Rocha and William Mottla shall not be subjected to further deposition but, instead, shall appear at trial voluntarily or by subpoena; c. Erica Ramirez and Michael Kovac shall not be subjected to further deposition; instead, their previous depositions shall be used to present their testimony at trial; d. Plaintiff may take William Tweedy's videotaped deposition for trial; however, Arpin may call Mr. Tweedy live at trial, as well; and e. Such other and further relief as this Court deems appropriate.

Dated this 29th day of August, 2005. Defendants Paul Arpin Van Lines, Inc. and Arpin Logistics, Inc., By their attorneys:

/s/ Karen Frink Wolf Harold J. Friedman, Esq. CT 23785 Karen Frink Wolf, Esq. CT 26494 FRIEDMAN GAYTHWAITE WOLF & LEAVITT Six City Center, P.O. Box 4726 Portland, ME 04112-4726 (207) 761-0900 (207 761-0186 (Fax) [email protected] [email protected]

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Case 3:02-cv-01302-JCH

Document 457

Filed 08/30/2005

Page 4 of 4

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was mailed via U.S. First Class Mail this 29 day of August, 2005 to the following:
th

Michael A. Stratton, Esq. Stratton Faxon 59 Elm Street New Haven, CT 06510 Thomas J. Grady, Esq. Lenihan Grady & Steele 6 Canal Street PO Box 541 Westerly, RI 02891-0541 James R. Oswald, Esq. Adler, Pollock & Sheehan One Citizen's Plaza, 8th Floor Providence, RI 02903-2443 Susan O'Donnell, Esq. Halloran & Sage One Goodwin Sq., 225 Asylum St. Hartford, CT 06103

Roland F. Moots, Jr., Esq. Moots, Pellegrini, Spillane & Mannion 46 Main Street, PO BOX 1319 New Milford, CT 06776-1319 Daniel J. Krisch, Esq. Horton, Shields & Know, P.C. 90 Gillett Street Hartford, CT 06105

/s/ Karen Frink Wolf Karen Frink Wolf, Esq. CT 26494

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