248 F.R.D. 725 | D.D.C. | 2008
MEMORANDUM AND ORDER
This case, presently scheduled to go to trial beginning April 23, 2008, comes before the Court on plaintiff Emile Mazloum’s motion in limine to preclude defendants Night & Day Management, LLC (“FUR”) and Michael Persons (collectively the “FUR defen
DISCUSSION
John Fiorito remains a nominal defendant to this action. Although the Court has granted summary judgment to Fiorito on all of the claims lodged against him, see Mazloum v. District of Columbia, 522 F.Supp.2d 24 (D.D.C.2007), that decision is not yet a final order and he has not been dismissed from this action. See Fed.R.Civ.P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties ... ”). From the submitted deposition excerpts, it is clear that Fiorito (through his wife) maintains a 5% ownership interest in the FUR Nightclub that manifests itself in the form of a $130,000 annual annuity.
Fiorito was present at the club on March 11-12, 2005, the date of the events at issue. Although he was not a primary participant in any of the relevant physical activity that occurred on that evening, Fiorito’s role in the events of March 12, 2005 is more noteworthy. In particular, Mazloum alleges that Fiorito summoned Imad Alkadi to the FUR Nightclub to inform him that if Mazloum continued to pursue his Metropolitan Police Department complaint he would be “burned.” In addition, Alkadi maintains that Fiorito represented to him that the videotape of the incident recorded by FUR’s security camera system was already “gone” — that is, it had been destroyed far sooner than the scheduled automatic deletion date.
The present controversy centers around the FUR defendants’ desire to submit Fiori-to’s deposition testimony to the jury in lieu of his live participation at trial. They maintain that Fed.R.Civ.P. 32(a)(4)(B) authorizes them to do precisely that because Fiorito is an “unavailable witness” under that rule since he resides in Florida, which is self-evidently more than 100 miles from the situs of the trial. In relevant part, Fed.R.Civ.P. 32(a)(4) provides:
A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: ...
(B) that the witness is more than 100 miles from the place of hearing or trial or is outside of the United States, unless it appears that the witness’s absence was procured by the party offering the deposition.
See Fed.R.Civ.P. 32(a)(4)(B). Hence, the FUR defendants insist that this Rule covers precisely this scenario and that it authorizes them to submit Fiorito’s deposition testimony — whether you characterize him as a party, officer, managing agent, or otherwise— for any purpose whatsoever. They are correct. There is no ambiguity in Rule 32 on this point. The pertinent facts here bring this case squarely within the ambit of Rule 32. And there is no evidence that the FUR defendants have procured Fiorito’s absence from this jurisdiction. Thus, pursuant to Rule 32, the FUR defendants may introduce Fiorito’s deposition testimony for any purpose they desire, subject to, of course, the normal constraints imposed by the rules of evidence.
Notwithstanding the plain import of Rule 32, Mazloum insists that it is not applicable here. That is so, he argues, because Fiorito is no ordinary witness in this case. Instead, he is still an actual party to this matter, he
Unfortunately for Mazloum, Niver did no such thing. In that case, the plaintiff sought to introduce through Rule 32(a)(4)(B) the deposition testimony of several employees of the corporate defendant who were ordinarily located more than 100 miles from the place of trial.
For present purposes, that is all that is strictly required to resolve this motion. Mazloum has not attempted to serve a trial subpoena upon Fiorito in Florida. In any event, nothing in Rule 45, which outlines the use of subpoenas in federal litigation, has any prospective impact upon the application of Rule 32(a)(4)(B). Put another way, even if it were possible for Mazloum to serve a subpoena that Fiorito could not successfully quash, until Mazloum does so and compels Fiorito to show up at trial, the plain text of Rule 32(a)(4)(B) operates in full force.
It does seem likely, however, that Mazl-oum may attempt to serve Fiorito with a trial subpoena that the FUR defendants would surely move to quash. The question of the proper construction and reach of Rule 45 is not presently before the Court and thus the Court will not issue any definitive decision on that question. Nevertheless, it seems appropriate to comment on this issue given that the parties addressed it at length in their briefing. Mazloum appears to be correct that the majority of federal district courts that have addressed the interaction between Rule 45(b)(2)(B) and Rule 45(c)(3)(A)(ii) have held that the latter authorizes a federal court to issue a trial subpoena upon a party witness outside of the 100-mile radius limitation contained in Rule 45(b)(2)(B). See, e.g., Clark v. Wilkin, 2008 WL 648542 at *1 (D.Utah Mar. 10, 2008) (collecting cases from ten different federal courts that reflect the “majority” position). But there are reasons to question that majority position.
But even if one were to accept the apparent majority reading — that Rule 45(c)(3)(A)(ii) could somehow be an expansion of the reach of Rule 45(b)(2) — the terms of Rule 45(e)(3)(A)(ii) do not appear to support the conclusion that the majority of courts have reached. The logical jump that those decisions make, as this Court understands it, begins with Rule 45(c)(3)(A)(ii), which mandates that a court quash any subpoena served upon a non-party (or an employee of a party who is not an officer) that would require that witness to travel more than 100 miles “from where that person resides, is employed, or regularly transacts business in person.” See Fed.R.Civ.P. 45(c)(3)(A)(ii). From that proposition, those courts have concluded that a party witness may be served with a subpoena beyond 100 miles from the place of trial pursuant to Rule 45(b)(2)(B).
But that may not logically follow from the text of the Rule. Indeed, the upshot of Rule 45(c)(3)(A)(ii) with respect to party witnesses is, as this Court sees it, that a court is not required to quash a properly served subpoena even if it required a party witness to travel more than 100 miles. If, for instance, Mazloum had served Fiorito with a trial subpoena while he was present in the District for his 30(b)(6) deposition, Rule 45(c)(3)(A)(ii) would not compel this Court to quash that subpoena (assuming Fiorito is in fact a party) even if he had to travel from Florida to attend the trial. But there does not appear to be a basis in the text of Rule 45(c)(3)(A)(ii) to authorize valid service of a subpoena upon a party witness beyond the normal 100-mile range of a federal court’s subpoena power. Two other federal courts, which evidently comprise the “minority” position, have reached this conclusion. See Jamsport & Entm’t, LLC v. Paradama Prods., Inc., 2005 WL 14917 at *1 (N.D.Ill. Jan.3, 2005); Johnson v. Land O’Lakes, 181 F.R.D. 388, 397 (D.Iowa 1998).
Thus, as it now stands, the FUR defendants will introduce large portions of Fiori-to’s deposition testimony into evidence. And Mazloum, presumably, will likewise do the same through counter-designations. In effect, the trial will involve reading hundreds of pages of documents to the jury. To be sure, this is a highly unsatisfactory result. Fiorito is not simply a tangential witness in this case; he remains a party to this action, he was an eye-witness to some of the events of March 11-12, 2005, and he played a key role in the subsequent destruction of the videotape evidence, as Mazloum would have it. Under such circumstances, it is unusual to present such an important witness’s testimony through lengthy deposition excerpts. The long-standing preference for live testimony serves a sound purpose, and the Court urges the parties to reach an arrangement whereby Fiorito’s testimony can either be videotaped or otherwise presented to the jury in a “live” fashion rather than tediously reading deposition excerpts into the record. Absent such an agreement, however, Rule 32 does indeed permit the FUR defendants to utilize Fiori-to’s deposition excerpts as they see fit.
CONCLUSION
Upon consideration of [175] Mazloum’s motion in limine, the opposition and reply thereto, the entire record herein, and for the
SO ORDERED.
. At one point, Fiorito had a 10% interest that paid a variable weekly amount. See Pl.’s Mot. Ex. A Fiorito Dep. at 35:2-30. That share was reduced to 5% to provide Fiorito’s wife with a guaranteed amount of $2,500 per week. Id.
. FUR evidently lacks any formal corporate structure and does not appear to follow ordinary corporate formalities.
. In fact, Niver interpreted an older version of Rule 32; the provision now found in Rule 32(a)(4)(B) was then found in Rule 32(a)(3)(B).
. At least one other federal court has suggested that "the court’s inherent power enables the court to order” that a party witness appear at trial notwithstanding the fact that the witness resided outside of the 100-mile service radius authorized by Rule 45(b)(2). See Clark, 2008 WL 648542 at *2. This Court, however, is not inclined to exercise its inherent power in a manner that would conflict with the structure and terms of the Federal Rules of Civil Procedure.
