United States of America v. Gumbaytay et al

Filing 398

MEMORANDUM OPINION AND ORDER that James and Barbara Clark and Abraham Campbell's Motions in Limine (Docs. # 345 , 353 , 355 ) are GRANTED. Signed by Honorable Judge Mark E. Fuller on 6/23/2011. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
MATTHEW BAHR, et al.,
Defendants.

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CASE NO. 2:08-cv-573-MEF
(WO)

MEMORANDUM OPINION AND ORDER
On April 13, 2011, Plaintiff United States of America (“the United States”) filed
its deposition designations, which included portions of Jamarlo Gumbaytay’s
(“Gumbaytay”) deposition taken during Boswell v. Gumbaytay, case number 2:07-cv-135.

(Doc. # 310). The only party in common between the Boswell case and this one is
defendant Matthew Bahr. Gumbaytay was a defendant in this action, but passed away
during the course of the litigation. He is no longer a party to this lawsuit, and the United
States chose not to substitute his estate.
Defendants James and Barbara Clark and Abraham Campbell have filed
objections to the United States’ designation of portions of Gumbaytay’s deposition.
(Docs. # 345, 353, 355). The court construes these objections as Motions in Limine to
exclude Mr. Gumbaytay’s deposition. For the foregoing reasons, these motions are due
to be GRANTED.

DISCUSSION
Federal Rule of Civil Procedure 32(a)(4) provides that portions of a deposition
may be used as evidence during trial if the court finds that the deponent is unavailable.
Gumbaytay is unquestionably unavailable, as he is deceased. However, the use of
depositions is limited by Rule 32(a)(5), which provides that if the deposition in question
was taken in a prior proceeding, the deposition “may be used in a later action involving
the same parties, or their representatives or successors in interest, to the same extent as if
taken in the later action.” The deposition taken in an earlier action may also “be used as
allowed by the Federal Rules of Evidence.”
The relevant rule of evidence is Rule 804(b)(1), which provides that deposition
testimony taken in the course of another proceeding is an exception to the hearsay rule if
“the party against whom the testimony is now offered, or, in a civil action or proceeding,
a predecessor in interest, had an opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination.”
As mentioned above, the only party in common between the instant case and the
Boswell case, in which Gumbaytay’s deposition was taken, is Matthew Bahr. None of
the other defendants in this case were involved in, or had representatives or successors in
interest involved in, the Boswell case. The United States argues that Courts have
expanded the literal definition of “predecessor in interest” to include those who had a
like motive to develop the testimony. Even if this is the case, the Court finds that no one

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involved in the Boswell case had motives similar to the defendants involved here. While
Gumbaytay, and therefore his counsel in the Boswell case, had a motive to develop
exculpatory evidence regarding Gumbaytay’s conduct, Gumbaytay’s counsel did not
have a motive to develop testimony regarding the agency relationship between
Gumbaytay and the owner defendants involved in this case. In this case, the owner
defendants are arguing that While Matthew Bahr was a party in the Boswell suit, he did
not participate in that case and was defaulted. It is unlikely that he was even present at
the deposition to develop the testimony. Accordingly, his inclusion as a defendant in
both cases does not render the deposition admissible against the other defendants in this
case.
It is the opinion of this Court that Gumbaytay’s motives for developing his own
testimony were not similar to the motives of the owner defendants. Accordingly, it is
hereby ORDERED that James and Barbara Clark and Abraham Campbell’s Motions in
Limine (Docs. # 345, 353, 355) are GRANTED.
Done this the 23rd day of June, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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