Charter Practices International, LLC et al v. Robb

Filing 46

ORDER re 31 Witness List filed by John M. Robb. See attached. Signed by Judge Donna F. Martinez on 1/18/13.(Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHARTER PRACTICES,
INTERNATIONAL, LLC, et al.,
Plaintiffs,
v.
JOHN M. ROBB,
Defendant.

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CASE NO. 3:12cv1768(RNC)

ORDER
The plaintiffs, Charter Practices International, LLC ("CPI")
and Medical Management International, Inc. ("MMI") operate companyowned and franchised Banfield Pet Hospitals.

They bring this

diversity case against defendant John M. Robb, DVM, a statelicensed veterinarian and Banfield franchisee, who is appearing pro
se.

The plaintiffs claim that the defendant is interfering with

CPI's operation of the Banfield Pet Hospital located inside the
PetSmart Store at 288 West Avenue in Stamford, Connecticut, in
violation of a "Charter Practice Agreement" between CPI and the
defendant.
defendant.

They

seek

(Doc. #3.)

a

preliminary

injunction

against

the

The plaintiffs also ask the court to hold

the defendant in contempt for violating the terms of the court's
Temporary Restraining Order. (Doc. #18.) Pending before the court
is the defendant's proposed witness list for the evidentiary
hearing on the plaintiffs' motions.1 (Doc. #31.)
1

22.)

The motions were referred to the undersigned.

(Doc. ##13,

Background
On December 17, 2012, the plaintiffs filed their complaint and
moved for a temporary restraining order (doc. #2) and a preliminary
injunction. (Doc. #3.)

On December 18, 2012, the court (Chatigny,

J.) granted the plaintiff's motion for a temporary injunction in
part2

and

referred

the

plaintiffs'

injunction to the undersigned.

motion

(Doc. #11.)

for

a

preliminary

On December 19, 2012,

the court issued an order scheduling an evidentiary hearing on the
preliminary injunction for January 3, 2013. The court ordered each
party to file a witness list, an exhibit list and a memorandum of
law by January 2, 2013.

(Doc. #12.)

On December 21, 2012, the plaintiffs filed an "Emergency
Motion to Hold Defendant in Contempt for Violating Temporary
Restraining Order and to Modify the Temporary Restraining Order."
(Doc. #18.) Judge Chatigny denied the plaintiffs' motion to modify
the

temporary

restraining

order

and

referred

the

motion

for

contempt to the undersigned to be heard as part of the scheduled
evidentiary hearing.

(Doc. #22.)

On December 26, 2012, the

parties filed a joint motion to reschedule the hearing and to
continue the temporary restraining order until the court ruled on
the plaintiffs' motion for preliminary injunction.

2

(Doc. #19.)

The Temporary Restraining Order enjoined the defendant from
entering the premises of the Banfield Pet Hospital and PetSmart
store located at 288 West Avenue, Stamford, Connecticut, including
the parking lot of the PetSmart Store. (Doc. #11.)
2

The court granted the joint motion and rescheduled the evidentiary
hearing to begin on January 7, 2013.

(Doc. #21.)

On January 2, 2013, in compliance with the court's order (doc.
#12), the plaintiffs filed a pre-hearing memorandum of law and
disclosed three witnesses and twenty-three exhibits.
28.)

(Doc. ##26-

The defendant did not comply with the order: he filed no pre-

hearing submissions, and did not even file his appearance until
January 7, 2013, the day of the hearing.

(Doc. #29.)

He offers no

explanation for his noncompliance.
The evidentiary hearing began on January 7, 2013 and continued
over five days.

As of the date of this order, the plaintiffs are

still presenting their case-in-chief.

On January 9, the third day

of the hearing, the defendant first asked to call witnesses.

The

court ordered him to file and serve a list of the witnesses he
proposed to call and to provide a synopsis of their anticipated
testimony.

(Doc. #30.)

On January 10, 2013, the defendant filed a list of 41 proposed
witnesses.

(Doc. #31.)

The plaintiffs object.

They point to the

defendant's failure to comply with the court's deadline to disclose
witnesses and argue that he should not be permitted to call
witnesses. In the alternative, the plaintiffs argue that the court
should limit the number of witnesses the defendant may call to
three — the same number that the plaintiffs called.
4.)

(Doc. #36 at

Finally, they object to the proposed witnesses on the grounds

3

of "prejudicial lack of disclosure, relevancy, waste of judicial
and

the

parties'

cumulativeness."

resources

and,

in

some

cases,

hearsay

and

(Doc. #36.)

Discussion
Sanctions
As the plaintiffs correctly argue, a court may sanction a
party for failure to obey a court order, including prohibiting the
disobedient
evidence.

party

from

introducing

designated

Fed. R. Civ. P. 37(b)(2)(A)(ii).

matters

into

In this case, the

defendant's failure to comply with the court's deadline to disclose
witnesses is grounds to preclude their testimony.

Preclusion,

however, is a harsh sanction that the court declines to impose on
the pro se defendant in the present circumstances.3
Relevance
Although the court will not preclude the defendant's witnesses
as a sanction, some of the witnesses must be precluded because the
testimony that the defendant intends to elicit from them is not
relevant.

"'Relevant evidence' means evidence having any tendency

to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it

3

The court does not countenance the defendant's late
disclosure. However, under the circumstances of this case, the
plaintiffs are not unduly prejudiced. As indicated, the plaintiffs
are still presenting their case-in-chief.
They have time and
opportunity to address the defendant's proposed witnesses, many of
whom are their own employees.
4

would be without the evidence."

Fed. R. Evid. 401.

As applied to

this proceeding, relevant evidence is that which tends to affect
the court's determination of the pending Motion for Preliminary
Injunction (doc. #3) and Motion to Hold Defendant in Contempt (doc.
#18).
To

determine

preliminary

whether

injunction,

the

the

plaintiffs

court

must

are

entitled

decide

whether

to

a

the

plaintiffs have established "(a) irreparable harm and (b) either
(1) likelihood of success on the merits or (2) sufficiently serious
questions going to the merits to make them a fair ground for
litigation and a balance of hardships tipping decidedly toward the
party requesting the preliminary relief." UBS Fin. Servs., Inc. v.
W. Va. Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir. 2011).
The plaintiffs seek an order enjoining the defendant from
breaching their step-in rights under the Charter Practice Agreement
("CPA").4

(Doc. #36 at 5.)

The "Step-In" provision states:

In order to prevent any interruption of the operation of
the Hospital that would cause harm to the Hospital or to
the reputation of the Network, You authorize CPI or its
designee to step in to operate the Hospital if, in CPI's
reasonable judgment: . . . CPI decides that significant
operational problems exist which require CPI to operate
the Hospital for a time.
Section 9.10 of the Agreement. The plaintiffs allege that (1) they
"determined in [their] reasonable judgment that Dr. Robb's practice
of administering half-doses of vaccines and using the remaining

4

The CPA terminates on February 5, 2013.
5

dose on other animals . . .

is a 'significant operational problem'

that entitles [them] to step-in to operate the hospital" (doc. #36
at 6) and (2) the defendant breached the CPA by interfering with
CPI's exercise of its step-in rights.

The court must determine

whether the plaintiffs have shown likelihood of success on the
merits as to their claim and whether the plaintiffs would suffer
irreparable harm if they were not granted equitable relief.
The plaintiffs also seek a preliminary injunction to enforce
the non-disparagement provision of the CPA. (Doc. #36 at 5.) That
provision states:
You must conduct your business following the highest
standards of honesty, integrity, fair dealing and ethics.
You must do nothing that would tend to discredit,
dishonor, reflect adversely upon or in any manner injure
the reputation of MMI, CPI, their affiliates, or the
Network [of Banfield Pet Hospitals]. . . . You must
remove any displayed materials that CPI identifies as
inconsistent with this Section 7.16.
Section 7.16 of the Agreement.

Again, the court must determine

whether the plaintiffs have adequately shown likelihood of success
on the merits as to their claim that the defendant has violated
this clause and whether the plaintiffs would suffer irreparable
harm absent equitable relief.
Finally, the plaintiffs seek an order holding the defendant in
contempt of the Temporary Restraining Order.5

5

(Doc. #11.)

Here,

Pursuant to 28 U.S.C. § 636(e)(6)(B), on a motion for
contempt in a civil, non-consent case, a magistrate judge
"certif[ies] the facts to a district judge and may serve or cause
to be served, upon any person whose behavior is brought into
6

the court must determine whether the defendant entered the premises
or parking lot of the Banfield Pet Hospital in Stamford after Judge
Chatigny ordered him not to.
After a careful review of the defendant's description of the
testimony he intends to elicit from each proposed witness, it is
evident that much of that testimony would not be relevant.6
this

reason,

the

court

sustains

the

plaintiffs'

For

relevance

objections and precludes the following witnesses: Kelly Klinger
(client/former employee); Mary White (former receptionist); Andy
Tanner (employee); Nancy (office manager); Charlene (considers
defendant her Pastor); Pam Flint (started the Facebook page); Pam
Andross (former manager at another hospital); Dr. Kelleher (a vet
in Florida who was terminated by Banfield); Pam Hale (former
Banfield employee who was terminated); Scott Oppat (director of an
association

of

Banfield

charter

hospital

owners);

Dr.

Scott

Campbell (former chief executive officer, now retired); Kelly
Orfield (a Banfield employee who said not to make waves); Dr.

question under this paragraph, an order requiring such person to
appear before a district judge upon a day certain to show cause why
that person should not be adjudged in contempt by reason of the
facts so certified." See, e.g., Telebrands Corp. v. Marc Glassman,
Inc., No. 3:09CV734 (RNC)(DFM), 2012 WL 1050018, at *1 (D. Conn.
Mar. 28, 2012). Upon certification, the district judge may impose
sanctions after conducting a hearing to decide the facts de novo.
28 U.S.C. § 636(e)(6)(B).
6

Notably,
the
defendant's
integrity
and
professional
competence are not relevant to the questions presented in the
pending motions. Nor are his allegations of being harassed and/or
threatened.
7

Quarti (a medical director); Dr. Mellilo (a medical director); Dana
(would

testify

to

defendant's

reputation

and

character);

the

waitress and receptionist at the City Limits Diner; Edgar (client
who called the news); David Longo (client); Mr. and Mrs. Fitchell
(former clients); Ellie Goldstein (client and friend); Eileen
McCaughern (will testify as to defendant's work with greyhounds);
Attorney Richard Johnston (gave defendant an award); Gary Glassman,
CPA (will testify as to defendant's integrity); Bill Beatty (same);
and Aldona Robb (defendant's wife).

These witnesses are precluded

from testifying at the ongoing evidentiary hearing.
On the present record, the court cannot conclude that the
testimony

of

irrelevant.

the

remainder

of

the

witnesses

is

obviously

Therefore, they are not precluded at this time.

However, if at any time it becomes apparent that their testimony is
irrelevant, the court may decide to exclude it.

Additionally, the

defendant is cautioned that the court may exclude evidence pursuant
to Rule 403 of the Federal Rules of Evidence "if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury,

undue

delay,

wasting

time,

or

needlessly

presenting

cumulative evidence."
Subpoenas
If the defendant wishes to call witnesses that the court has
not precluded, he is responsible for securing their attendance in

8

court.

He has asked about the issuance of subpoenas.

Civ. P. 45.

See Fed. R.

Rule 45(a)(1)(A) provides that every subpoena must:

(i) state the court from which it issued;
(ii) state the title of the action, the court in which it
is pending, and its civil-action number;
(iii) command each person to whom it is directed to do
the following at a specified time and place: attend and
testify; produce designated documents, electronically
stored information, or tangible things in that person's
possession, custody, or control; or permit the inspection
of premises; and
(iv) set out the text of Rule 45(c) and (d).
Fed. R. Civ. P. 45(a)(1)(A)(i)-(iv).
A subpoena must be signed and issued by either: (1) the clerk
of the court or (2) an attorney, as an officer of the court.
Fed. R. Civ. P. 45(a)(3)(A)-(B).

See

Once a subpoena is issued, it

must be served properly and within the requirements set forth in
Rule 45(b).

A subpoena may be served at any place "outside the

district but within 100 miles of the place specified for the
deposition, hearing, trial, production, or inspection."
Civ. P. 45(b)(2)(B).

Fed. R.

Rule 45(b)(1) also requires witness fees and

mileage. Upon a timely motion to quash, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a
party's officer to travel more than 100 miles . . .
(iii) requires disclosure of privileged or other
protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(c)(3)(A)(i)-(iv).
There might be less cumbersome and more efficient alternatives
to calling witnesses to testify at the proceeding. For example, in

9

lieu of oral testimony, the plaintiffs have submitted affidavits in
support of their motions and suggest that the defendant could do
the same.

See Mullins v. City of New York, 626 F.3d 47, 52 (2d

Cir. 2010).
Regardless of how the defendant chooses to proceed, the
evidentiary hearing is scheduled to resume on January 22, 2013 at
10:30 a.m. and to continue, if necessary, on January 23, 2013.

The

defendant is responsible for having his witnesses in attendance and
ready to proceed.
SO ORDERED at Hartford, Connecticut this 18th day of January,
2013.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

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