Dillingham v. Garcia et al
Filing
198
ORDER DENYING 196 Plaintiff's Motion to Appear at Trial via Zoom and Directing Plaintiff to Show Cause. Plaintiff is ordered to notify the Court in writing by 5:00 pm on Friday, May 13, 2022 that he intends to be personally present in the courtroom to proceed with the jury trial in this case on May 17, 2022. Signed by District Judge Dale A. Drozd on 5/11/2022. (Hernandez, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
JERRY DILLINGHAM,
12
Plaintiff,
13
14
No. 1:18-cv-00579-DAD-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPEAR AT TRIAL VIA ZOOM AND
DIRECTING PLAINTIFF TO SHOW CAUSE
v.
F. GARCIA,
15
Defendant.
(Doc. No. 196)
16
17
This case is scheduled for jury trial commencing on May 17, 2022. On May 10, 2022,
18
19
plaintiff––who is proceeding pro se in this action––filed a motion for an order authorizing him to
20
appear at trial telephonically or, alternatively, by video or Zoom. (Doc. No. 196.) In his pending
21
motion, plaintiff once again argues that he is cognitively and physically disabled and that he is
22
wheelchair-bound. (Id. at 1–2.) He further asserts that he currently resides in an “ADA-
23
compliant transitional housing facility.” (Id. at 2.) Plaintiff states that in light of his disability,
24
his financial circumstances, and his lack of a personal vehicle, he has no means of transportation
25
available to travel to the Federal Courthouse in Fresno, California in order to attend his May 17,
26
2022 jury trial. (Id.) Based on these representations, plaintiff requests that the court allow him to
27
appear remotely by telephone or by video or Zoom at the aforementioned jury trial. (Id.)
28
/////
1
Plaintiff’s motion to proceed remotely via video at jury trial will be denied. In the context
1
2
of a jury trial, the matter of whether to permit parties or witnesses to appear remotely by way of
3
Zoom (or otherwise) is left to the court’s discretion. See, e.g., Steele v. Nat’l R.R. Passenger
4
Corp., No. 19-cv-553-BHS, 2022 WL 1154351, at *2 (W.D. Wash. Apr. 19, 2022); Bao Xuyen Le
5
v. Reverend Dr. Martin Luther King, Jr. Cnty., 524 F. Supp. 3d 1113, 1115–16 (W.D. Wash.
6
2021); Rinaldi v. SCA La Goutte, D’Or, 16-cv-1901-VSB, 2022 WL 443779, at *2 (S.D.N.Y.
7
Feb. 14, 2022).1 Specifically, Federal Rules of Civil Procedure 43(a) and 77(b) do authorize
8
courts to “permit testimony in open court by contemporaneous transmission from a different
9
location,” for good cause in compelling circumstances. But plaintiff’s request is broader than
10
merely wishing to present certain trial testimony remotely. Here, the court does not find good
11
cause or compelling circumstances that would warrant plaintiff’s participation in the trial of this
12
case, in which he is proceeding pro se, to be entirely carried out remotely via Zoom.
Although plaintiff’s asserted disabilities could be construed as an illness or similar
13
14
condition, those circumstances cannot be said to be unexpected in this case. Plaintiff has been
15
consistently reiterating his alleged disabilities throughout this litigation, but he has nonetheless
16
indicated that he wishes to proceed to trial. Now, on the eve of that jury trial, the court cannot
17
find plaintiff’s request to conduct that trial remotely to be well-taken. While the court remains
18
sympathetic to plaintiff’s asserted conditions, plaintiff brought this action on his own behalf and it
19
is his burden to prosecute it. Accordingly, plaintiff’s motion will be denied.
Plaintiff has now informed the court that “telephonic appearance is the only way” that he
20
21
will be able to be present at the jury trial scheduled in this action and that if he cannot appear
22
remotely, his alleged circumstances will prevent him from appearing in the courtroom of the
23
undersigned on the date set for trial. (Doc. No. 196 at 2.) The court takes plaintiff at his word in
24
As the district court in Rinaldi recognized, “‘[t]he opportunity to judge the demeanor of a
witness face-to-face is accorded great value in our tradition. Transmission cannot be justified
merely by showing that it is inconvenient for the witness to attend the trial.’” Rinaldi, 2022 WL
433779, at *2 (citing Federal Rule of Civil Procedure 43(a) Advisory Committee’s note to 1996
amendment). “The most persuasive showings of good cause and compelling circumstances are
likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or
illness, but remains able to testify from a different place.” Id.
2
1
25
26
27
28
1
this regard. Nonetheless, for the reasons explained above, the court will deny plaintiff’s request
2
to appear at the jury trial in this action telephonically or by video or Zoom. Plaintiff is therefore
3
ordered to notify the court in writing by no later than 5:00 p.m. on Friday May 13, 2022 that he
4
intends to be personally present in the courtroom of the undersigned at 8:30 a.m. on May 17,
5
2022 to prosecute this action at trial as scheduled. If plaintiff fails to notify the court of his
6
intention to personally appear at trial, the court will find that he has declined to appear at his
7
scheduled jury trial as indicated in his pending motion and will dismiss this case due to plaintiff’s
8
failure to prosecute.2
9
Accordingly,
10
1.
11
Plaintiff’s motion to participate in the May 17, 2022 jury trial in this case solely by
telephone or via video or Zoom (Doc. No. 196) is denied;
12
2.
Plaintiff is ordered to notify the court in writing by 5:00 p.m. on Friday, May 13,
13
2022 that he intends to be personally present in the courtroom of the undersigned
14
to proceed with the jury trial in this case on May 17, 2022;
15
3.
If plaintiff fails to notify the court of his intent to proceed in person, the court will
16
find that plaintiff has declined to personally appear at trial (as indicated in the
17
pending motion is his intention), and the court will dismiss this case due to
18
plaintiff’s failure to prosecute; and
19
4.
The Clerk of the Court is ordered to serve this order on plaintiff by way of mail
20
and via e-mail at his e-mail address of record in order to ensure he receives it with
21
time to respond as ordered.
22
IT IS SO ORDERED.
23
Dated:
May 11, 2022
UNITED STATES DISTRICT JUDGE
24
25
26
27
28
2
The court simply cannot justify inconveniencing the 50 perspective jurors who are otherwise
being called upon to report to the courthouse for the jury trial on the morning of May 17, 2022, if
plaintiff has no intention of personally appearing for trial as ordered.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?