Cutler v. New Haven et al

Filing 53

ORDER denying 46 MOTION for Protective Order to prohibit the deposition by John DeStefano, City of New Haven in accordance with this ruling and reasonable limits placed on the deposition. Signed by Judge Holly B. Fitzsimmons on 7/31/12. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JASON CUTLER
v.
CITY OF NEW HAVEN
JOHN DESTEFANO

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CIV. NO. 3:11CV662 (WWE)

RULING ON DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
Plaintiff Jason Cutler alleges that defendants, City of New
Haven and John DeStefano, violated the Equal Protection Clause
of the United States Constitution and 42 U.S.C. §1983.
Compl. Doc. #25].

[Amend.

Plaintiff asserts that defendants have

targeted him and his places of business, Center Street Lounge
and Club Pulse, for disparate treatment, including disparate
enforcement of laws relating to the operation of bars in the
City of New Haven, in order to drive plaintiff out of business
and to inflict economic injury upon him. Plaintiff, in part,
alleges that DeStefano has a personal and business relationship,
through his driver, with Gotham Citi Café, and he is trying to
further the business interests of the café, a direct competitor
of plaintiff, at plaintiff’s expense. [Doc. #25].

Plaintiff

also alleges that the Mayor staged a press conference directly
in front of one of his establishments and “cited the plaintiff
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as an example of ‘irresponsibility’ and ‘problem bars’” in New
Haven. [doc. #25]. A motion to dismiss this case was denied by
the Court on December 9, 2011. [Doc. #29]. On July 20, 2012, a
conference call was held on the record to discuss this motion
for a protective order.
Defendants move for a protective order to prohibit the
deposition of Mayor DeStefano. [Doc. #46]
Defendants assert that Mayor DeStefano falls under the
category of “high ranking official.” See Lederman v. Guilinai,
98 Civ.2024(LMM), 2002 WL 31357810 (S.D.N.Y. Oct. 17, 2002).
Because of this, special scrutiny is given to the burden a
deposition imposes on the government official, and depositions
are not permitted unless a two-pronged test is satisfied.
First, the deposition must be necessary to obtain information
not available from any other source.

Second, the deposition

must not significantly interfere with the official’s ability to
perform his governmental duties.

Murray v. County of Suffolk,

et. Al., 212 F.R.D. 108, 109 (E.D.N.Y. 2002)(citing Marisol v.
Giuliani, No. 95 Civ. 10533 (RJW), 1998 WL 132810 *2 (S.D.N.Y.
May 23, 1998)).

Defendants contend that neither prong is

satisfied. Defendants state that information about defendant’s
driver can be better obtained from the driver himself and not
the mayor; moreover, the driver denies any relationship with the
Gotham Citi Café. Defendants also contend that the Mayor has no
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personal knowledge of any effort to treat plaintiff or
plaintiff’s establishments differently from others. Finally,
defendants represent that a deposition of the Mayor would
significantly interfere with his ability to perform governmental
duties.
“It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under [42 U.S.C.] §1983.”
Mulready v. Mulready, Civ. No. 3:06CV00934 (AWT), 2007 WL
1757055, *2 (D. Conn. June 19, 2007) (citing
449 F.3d 470, 484 (2d Cir. 2006)).

Farrell v. Burke,

Plaintiff aptly points out

that the Mayor is a party to this litigation and his deposition
is necessary and proper discovery under Fed. R. Civ. P. 26.
Discovery is meant to help define and clarify the issues of a
case and should not be limited by the defendants’ opinion on the
merits of the lawsuit. Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978).
Defendant’s Motion for Protective order [Doc. #46]

is

DENIED. The deposition will go forward with “reasonable limits”
to enable the Mayor to perform his governmental duties. See
Marisol A., 1998 WL 132810 at *2 (“courts must place ‘reasonable
limits’ as to conserve the time and energies of public officials
and prevent the disruption of the primary functions of
government.”). The Mayor’s deposition will be limited to two
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hours in length and will occur at a time and place convenient to
the Mayor. Questioning will be limited to the Mayor’s personal
knowledge of or involvement in the activities alleged in the
Amended Complaint. The parties will contact the Court during the
deposition to resolve objections and to make the best use of the
Mayor and counsels’ time.
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the "clearly
erroneous" statutory standard of review.

28 U.S.C. '636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

As such,

it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.

ENTERED at Bridgeport, this 31st day of July 2012.

_________/s_/_______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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