Acceptance Indemnity Insurance v. JJA Auto Sales LLC, et al

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, Chief Judge, GREENAWAY JR. and KRAUSE, Circuit Judges. Total Pages: 5. Judge: SMITH Authoring.

Case: 17-1400

Document: 003112885242

Page: 1

Date Filed: 03/26/2018

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1400
_____________
ACCEPTANCE INDEMNITY INSURANCE COMPANY
v.
JJA AUTO SALES LLC, d/b/a JJA Sales;
SAID FARAJ;
SAID ASSAD J. FARA,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 5-15-cv-02954
District Judge: Honorable Joseph F. Leeson, Jr.
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 18, 2018
Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges
(Filed: March 26, 2018)
_____________________
OPINION
_____________________
SMITH, Chief Judge



This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

Case: 17-1400

Document: 003112885242

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Date Filed: 03/26/2018

This is an appeal from a declaratory judgment that Appellee, Acceptance
Indemnity Insurance Company, did not have a duty to defend or indemnify Appellants,
JJA Auto Sales, LLC and Said Faraj,1 in an underlying tort action brought in New York
state court. The state suit arose out of a car accident in Brooklyn in which Faraj, the
driver, hit a pedestrian. The ultimate question is whether the accident is covered by the
insurance policy that Acceptance issued to JJA. The answer depends on whether JJA, a
used-car dealership, owned the car or used it in connection with its business.
Faraj discussed the accident with Acceptance’s counsel in an “Examination Under
Oath,” a transcript of which was recorded by a court reporter. App. at 236. That transcript
provides the primary evidentiary support for Acceptance’s case, and its admissibility is the
main subject of Appellants’ appeal. The District Court admitted the transcript into
evidence, concluding over Appellants’ objections that it was admissible. Based in large
part on the transcript, the District Court found that JJA did not own or use the vehicle
involved, and therefore the policy did not cover the accident. JJA and Faraj now appeal.
We will affirm the District Court’s judgment in favor of Acceptance.2
Appellants raise several issues, none of which require substantial discussion. As a
threshold matter, Appellants argue that New York rather than Pennsylvania law should
control our analysis. Because Appellants raise only procedural and evidentiary issues on

The original complaint named two individual defendants, “Said Faraj” and “Said Assad
J. Fara,” but both names refer to the same person. App. at 4 n.1.
1

2

The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under
28 U.S.C. § 1291.
2

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appeal, federal law, not the law of New York or Pennsylvania, controls. See Hanna v.
Plumer, 380 U.S. 460, 471 (1965); Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938);
Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000). The District Court did not
err by applying federal law.
Nor did the District Court err by admitting the transcript of the examination into the
record. Appellants’ three arguments in this respect are easily dismissed. First, Appellants
object to the District Court’s decision to reopen the trial record to allow Acceptance to
substitute a certified copy of the examination transcript for the unsigned copy it initially
offered. “[A] motion to reopen [the record] . . . is addressed to [the District Court’s] sound
discretion.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331 (1971). The
certified copy, signed by the court reporter who transcribed the examination, is otherwise
identical to the unsigned copy, and Appellants were not prejudiced by the District Court’s
decision to admit it.
Second, Appellants argue that because the examination was not a deposition, it was
inadmissible. We agree that this examination under oath was not a deposition. But the fact
that Fed. R. Civ. P. 32(a) allows depositions to be used in court under certain circumstances
has no bearing on the admissibility of an examination under oath.

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Third, Appellants argue that the transcript is inadmissible because it was not signed
by Faraj.3 Appellants argue that New York law requires a deposition transcript to be signed
by both the court reporter and the deponent, and that an examination under oath is
sufficiently similar to a deposition that the same requirement should apply. We repeat our
earlier conclusion that federal law, not New York law, governs our evidentiary analysis.
Accepting for the moment Appellants’ proposition that an examination under oath must
meet the same criteria for admissibility as a deposition, there is no applicable requirement
that a deposition transcript be signed as a precondition for admissibility. No changes to the
transcript were made that would require the deponent’s signature under Fed. R. Civ. P.
30(e)(1)(B), and Appellants have not explained or cited other legal authority establishing
the need for a signature. We conclude that the District Court did not err in admitting the
examination transcript into evidence.
Appellants suggest in passing that the case should be dismissed for failure to join
the pedestrian involved in the accident—the plaintiff in the underlying New York
lawsuit—as a necessary party. Appellants do not cite to any authority supporting their
argument, and clearly articulate the argument only once: in the heading of an unrelated
section of their brief. Appellants’ Br. 10. Accordingly, the issue is waived. See, e.g., Kost
v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). In any event, we do not believe that Fed.

3

Because the District Court properly allowed substitution of the certified copy of
the transcript for the unsigned copy, we need not consider whether admitting the
unsigned copy into evidence would have been error.
4

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R. Civ. P. 19 requires joinder of the New York plaintiff in these circumstances, and the
District Court did not err by so holding. See Liberty Mut. Ins. Co. v. Treesdale, Inc., 419
F.3d 216, 228–29 (3d Cir. 2005).
Finally, we note that portions of Appellants’ brief are essentially incomprehensible,
lacking citation to authority or even articulable legal argument. This is not the sort of
appellate advocacy this court expects from the attorneys who appear before us. Any
remaining arguments have not been clearly raised, and are therefore waived. See Kost, 1
F.3d at 182.
We will affirm the judgment of the District Court in favor of Appellee, Acceptance
Indemnity Insurance Company.

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