Petaway v. Osden et al

Filing 76

ORDER. Defendants' motion to amend, ECF No. 68 is GRANTED; Mr. Petaway's objection, ECF No. 69 , is DENIED as moot. The other pending motions, ECF Nos. 64 , 65 , 71 , and 75 , are DENIED.The Court will extend deadlines in this ma tter sua sponte to address any potential hardship caused by this ruling. The Court adopts the following schedule: Completion of discovery due by 4/27/2018; Dispositive motions due by 6/1/2018; Joint Trial Memorandum due within 30 days af ter the Court rules on dispositive motions.Trial Ready Date 6/29/2018 or, if dispositive motions are filed, 30 days after the Joint Trial Memorandum.Additionally, the Court will reschedule the post-discovery telephonic status conference. It will now be held on May 3, 2018 at 11:00 a.m. Signed by Judge Victor A. Bolden on 3/5/2018. (Giammatteo, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

WILLIAM PETAWAY,
Plaintiff,
v.

No. 3:17-cv-00004 (VAB)

COUNSELOR SUPERVISOR OSDEN,
ET AL,
Defendants.

RULING ON PENDING MOTIONS
William Petaway (“Plaintiff”) filed this Complaint pro se on January 3, 2017, alleging
that defendants violated his rights by failing to provide him with written notice of disciplinary
action, failing to provide reasons or a written statement of evidence for those actions, and
ultimately taking away good time credit as a result. Compl., ECF No. 1.
Currently before the Court are six motions. Mr. Petaway has moved for two orders: an
“order, for ‘telephone deposition,’” ECF No. 64, and an order for Defendants to provide copies
of hearing tapes, ECF No. 65. He has also moved for the Court to take judicial notice, ECF No.
71, and for “Memorandum ‘Review’ By Judge,” ECF No. 75. Defendants have moved to amend
their answer and affirmative defenses, ECF No. 68, and Mr. Petaway moved for the Court to
deny Defendants’ motion, ECF No. 69.
For the reasons stated below, the Court will GRANT Defendants’ motion to amend and
DENY as moot Mr. Petaway’s motion in response. The Court will DENY the motion for a
telephonic deposition. The motions for judicial notice, copies and memorandum review are
DENIED.

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I.

DEFENDANTS’ MOTION TO AMEND AND PLAINTIFF’S OBJECTION
Defendants move to amend their answers and affirmative defenses for the second time.

See Defs. Mot. to Amend, ECF No. 68. They argue that “the defendants conducted further
discussion and investigations” into the allegations raised by Mr. Petaway and seek to update their
responses in accordance with that investigation. Id. at 2. Specifically, they seek to amend their
answers to the allegations in two paragraphs of the Complaint, and to remove several affirmative
defenses “in response to plaintiff’s motion for sanctions.” Id. at 3.1 Finally, they seek to add
several affirmative defenses: a mootness argument, a contributory negligence defense, a statute
of limitations defense, and a harmless error defense. Id. at 3-4.
Mr. Petaway filed two documents in response: an objection, ECF No. 70, and what he
styled as “Plaintiff’s Request to Court to Deny the Defendants ‘Motion to Correct-Amend, Dated
10/17/17” (“Pl. Opp. Mot.”), ECF No. 69. Mr. Petaway argues that the motion to amend should
be denied under Federal Rule of Civil Procedure 12(g)(2) because “the Defendants has failed to
‘cure defects’ in answer to complaint” and in “other motions filed, not raised” those defenses. Pl.
Opp. Mot. at 2. Additionally, he notes that Defendants “then (withdrew) all the affirmative
defenses in ‘Answer’” and that it is “unfair to this Court to repeatedly allow the Defendant” to
‘amend the answer’ to the Complaint.” Id.
The Court previously granted Defendants’ first motion to correct their answers and
affirmative defenses. See October Ruling at 4-6. Defendants then filed a second motion the same
day as the Court issued its ruling.

1

The Court previously denied Plaintiff’s motion for sanctions. See generally Ruling Denying
Plaintiff’s Motion for Sanctions (“October Ruling”), ECF No. 66.
2

As the Court previously noted in this case, Federal Rule of Civil Procedure 15 allows a
party to amend “only with the opposing party’s written consent or the court’s leave.” Rule 15
requires, however, the “the court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Leave to amend may be denied if the Court finds “undue delay, bad faith or dilatory
motive . . . , repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Mere delay, however, absent a
showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the
right to amend.” State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d
Cir.1981).
In considering prejudice, the Second Circuit requires that district courts consider several
factors in deciding whether assertion of a new claim would prejudice an opposing party. Block v.
First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993) (“We consider whether the assertion of
the new claim would: (i) require the opponent to expend significant additional resources to
conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or
(iii) prevent the plaintiff from bringing a timely action in another jurisdiction.”); see also
Odyssey Reinsurance Company v. Cal-Regent Insurance Services Corporation, 123 F.Supp. 3d
343 (D. Conn. 2015) (applying Block test and allowing defendant to amend answer)
Like the previous motion to amend, the new defenses are either primarily legal in nature
or would be based on similar factual grounds as previous defenses. As a result, none of the
claims appear to require significant additional resources. Additionally, discovery is still ongoing
and any delay in the resolution of this matter would be minimal. And, as addressed below,

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should the parties need additional time to complete discovery they might move for an extension
of time. In short, Mr. Petaway will not be prejudiced by amendment.
The question of whether the motion should be denied for “repeated failure to cure
deficiencies” is a closer one. Certainly, Defendants seem to have taking something of a movingtarget approach to the litigation, adding and subtracting affirmative defenses. Defendants justify
this approach by noting that “[s]ince filing their answer in July, the defendants conducted further
discussions and investigation into the allegations and now seek to amend their answer and
affirmative defenses.” Defendants, however, moved to amend their answers in September, and
the Court subsequently granted that request. The latest motion does not address why the defenses
asserted here were not raised in the September motion.
There is no evidence, however, that bad faith motivated Defendants’ failure to raise these
affirmative defenses earlier, and Rule 15 requires that this Court “should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Defendants’ conduct does not appear to rise to the
level that the Court would decline to exercise its discretion, and therefore Defendants’ motion to
correct, ECF No. 68, is granted.
Plaintiff’s motion objection to the motion, ECF No. 69, is denied as moot.
II.

PLAINTIFF’S MOTION FOR TELEPHONIC DEPOSITION
Mr. Petaway also moves for the Court to allow his deposition to be taken over the

telephone, rather than in person. See Pl. Mot. for Order for “Telephone” Dep., ECF No. 64. He
argues that “plaintiff has no way to (get to) the Atty. Varunes office in Hartford,” and that under
Federal Rule of Civil Procedure 30(b)(4) he should be allowed to appear via telephone. Id. at 1.
Defendants object, stating that they would reschedule the deposition in order to facilitate
a time when Mr. Petaway was better able to attend. Defs. Obj., ECF No. 72.

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Federal Rule of Civil Procedure 30(a)(1) states that “[a] party may, by oral questions,
depose any person, including a party, without leave of court” except in limited circumstances not
implicated here. The rule states, however, that “[t]he parties may stipulate—or the court may on
motion order—that a deposition be taken by telephone or other remote means.” Fed. R. Civ. P.
30(b)(4).
Courts within the Second Circuit have applied different standards when deciding to
allow for telephone depositions: some require a showing of physical or financial hardship, while
others have found such a showing unnecessary. See Davis v. Farrell, No. CV 16-4874
(ADS)(AYS), 2017 WL 2817051, at *2 (E.D.N.Y. June 29, 2017) (collecting cases). Ultimately,
however, the decision of where or how to conduct the deposition is within the Court’s discretion,
while seeking to “achieve a balance between claims of prejudice and those of hardship.” Id.
(quoting Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 387 (S.D.N.Y.
2011).
However, the bulk of these rulings address whether an out-of-district deponent may be
forced to travel to that district for the purposes of a deposition. See, e.g., Sec. & Exch. Comm'n v.
Aly, 320 F.R.D. 116 (S.D.N.Y. 2017) (allowing deposition by videoconference of defendant who
lives in Pakistan). The Court is not aware of any case in the Second Circuit such as this one:
where a deposition is noticed within the district where the deponent resides, but the deponent
argues he or she lacks transportation or means to attend the deposition. The Court will adopt a
similar methodology as in other cases, and weigh the arguments on both sides.
Mr. Petaway is proceeding in this matter in forma pauperis. See ECF No. 7. He does not
submit independent support for why a telephone deposition is necessary, given the fact that he
lives in Connecticut and there is public transportation available between his city of residence and

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Hartford, where the deposition is noticed to take place. The Court nonetheless credits that Mr.
Petaway would face some burden — both financially and in terms of effort, given his financial
circumstances.
On the other hand, Defendants provide no support for their position. Instead of grounding
their objection in legal argument, Defendants chose to impugn Mr. Petaway’s character. See
Defs. Obj. at 2 (arguing Plaintiff should be “[v]iewed as being obstinate versus indigent . . . .”).
The Court does not credit this response with any weight.
There is, however, a general rule that “the party noticing [a] deposition usually has the
right to choose the location . . . .” Aly, 320 F.R.D. at 118 (quoting Buzzeo v. Bd. of Educ., 178
F.R.D. 390, 392 (E.D.N.Y. 1998)). And courts in the Second Circuit have noted that “concern
about not being able to see Plaintiff's demeanor or observe what documents are present and being
reviewed are valid factors considered” by courts. Stephens v. 1199 SEIU, No. CV 07-0596 JFB
AKT, 2011 WL 2940490, at *2 (E.D.N.Y. July 19, 2011) (allowing telephone deposition where
deponent had been deported to Jamaica); see also Gagasoules v. MBF Leasing LLC, No. 08-cv2409 (ADS)(ARL), 2009 WL 5176576, at *3 (E.D.N.Y. Dec. 22, 2009) (“The Court agrees with
[the magistrate judge’s] finding that telephone depositions would not be feasible in this case
given that MBF has a legitimate concern about viewing the Plaintiffs' demeanor.”).2
Mr. Petaway’s testimony will be important in this matter, given the central role of his
testimony to his allegations, and his credibility as a witness will be crucial as well. He is being

2

Courts have been reticent, however, to reject telephone depositions for only this reason. See,
e.g., Robert Smalls Inc. v. Hamilton, No. 09-civ-7171(DAB)(JLC), 2010 WL 2541177, at *4
(S.D.N.Y. June 10, 2010) (noting concerns over demeanor and feasibility are “problems with any
telephone deposition, and telephone depositions are a presumptively valid means of discovery. .
. . Moreover, accepting Plaintiffs' arguments absent a particularized showing of prejudice would
be tantamount to repealing [Fed.R.Civ.P. 30(b)(4)].”) (internal quotations and citations omitted).
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deposed within the district where he lives and where he filed suit, and unlikely to face hardship
in traveling to the deposition location. In short: the Court sees no reason to deviate from the
general rule here and prevent Defendants from taking Mr. Petaway’s deposition at the office of
the Attorney General. Mr. Petaway’s motion, ECF No. 64, is denied.
III.

PLAINTIFF’S MOTION FOR JUDICIAL NOTICE AND MEMORANDUM
REVIEW
Mr. Petaway also moves for the Court to take judicial notice of several facts that he

argues are not subject to reasonable dispute. ECF No. 71. In a declaration supporting the motion,
he states that he received documents from the Defendants, and that these “tickets” failed to give
written reasons for the disciplinary actions at the heart of this case. William Petaway Decl., ECF
No. 71-1. Mr. Petaway has also filed a motion for “memorandum review,” again seeking judicial
notice. ECF No. 75.
Defendants filed what they captioned as an objection to Mr. Petaway’s motion. ECF No.
74. The document, however, appears to be a filing in a completely separate matter not pending
before this Court.
Under the Federal Rules of Evidence, the Court may take judicial notice of facts that are
“not subject to reasonable dispute,” either because those facts are “generally known within the
trial court’s territorial jurisdiction” or provided from sources that “can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b).
Mr. Petaway seeks judicial notice of adjudicative facts that are not in the public record,
and have not been authenticated. Cf. Pelletier v. Purdue Pharma L.P., No. 3:15-cv-233 (JAM),
2016 WL 3620710, at *3 (D. Conn. June 29, 2016) (declining to take judicial notice of a release
where it had “not been filed with any court nor been authenticated in any way.”); Olds v. Baird,
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No. 3:11-cv-1375 (JCH), 2012 WL 606770, at *3 (D. Conn. Feb. 21, 2012) (taking judicial
notice of state court proceedings because “[t]he court can verify the accuracy of these
documents, including documents filed in state court proceedings”). The accuracy of his proposed
evidence, a document attached to his motion, cannot be readily determined, and it therefore
would be inappropriate to take judicial notice of it at this stage of the litigation.3
Mr. Petaway’s motions for judicial notice, ECF No. 71, and for memorandum review,
ECF No. 75, are therefore denied.
IV.

PLAINTIFF’S MOTION FOR ORDER TO PROVIDE COPIES
Mr. Petaway also moves for an order to “provide him copies of the ‘hearing tapes’ of all

bookings of Mr. Petaway.” ECF No. 65. The Court construes this as a discovery dispute.
According to this Court’s Chambers practices,
Motions to resolve discovery disputes cannot be filed unless first
discussed with Judge Bolden. Judge Bolden will attempt to resolve
discovery disputes by conference call whenever possible. To initiate
the Court's involvement, parties should file a joint motion for a
discovery conference, describing the nature of the dispute and
stating that the parties have conferred, attempted to resolve the
dispute in good faith, but remain unable to resolve it. This joint
motion also should enumerate the issues for resolution and provide
dates and times counsel are available for a telephonic status
conference. At least one week before the date of the telephonic
status conference set by the Court, the parties shall file brief
submissions -- no more than 5 pages each -- detailing their positions.
Judge Bolden's Pretrial Preferences, http:// www.ctd.uscourts.gov/content/victor-bolden. Plaintiff
has not followed this procedure, and the Court will therefore deny the motion without prejudice.

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The Court expresses no view on the ultimately admissibility of this evidence or what role, if
any, it might have in establishing liability.
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CONCLUSION
Defendants’ motion to amend, ECF No. 68 is GRANTED; Mr. Petaway’s objection,
RCF No. 69, is DENIED as moot. The other pending motions, ECF Nos. 64, 65, 71, and 75, are
DENIED.
The Court will extend deadlines in this matter sua sponte to address any potential
hardship caused by this ruling. The Court adopts the following schedule:


Completion of discovery due by 4/27/2018;



Dispositive motions due by 6/1/2018;



Joint Trial Memorandum due within 30 days after the Court rules on dispositive
motions.



Trial Ready Date 6/29/2018 or, if dispositive motions are filed, 30 days after the Joint
Trial Memorandum.

Additionally, the Court will reschedule the post-discovery telephonic status conference. It will
now be held on May 3, 2018 at 11:00 a.m.
SO ORDERED at Bridgeport, Connecticut this 5th day of March, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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