MBS Management Services, Inc. v. Hartford Fire Insurance Company et al

Filing 492

ORDER AND REASONS: ORDERED that 485 Motion in Limine to Exclude DepositionTestimony of Michael Smuck, Sr. and Michael Smuck, Jr. at Trial is DENIED. Signed by Judge Nannette Jolivette Brown on 3/9/2012. (clm, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLAUDE C. LIGHTFOOT, JR., substituted as
Trustee of the Unsecured Creditors’ Trust formed in
connection with the bankruptcy of MBS
MANAGEMENT SERVICES, INC.

CIVIL ACTION

VERSUS

CASE NO. 07-4833

HARTFORD FIRE INSURANCE COMPANY,
HOMELAND INSURANCE COMPANY OF NEW
YORK, RSUI INDEMNITY COMPANY, AMERICAN
E & S INSURANCE BROKERS NEW YORK, INC.,
and WRIGHT AND PERCY INSURANCE AGENCY,
A DIVISION OF BANCORPSOUTH INSURANCE
SERVICES, INC.

SECTION: G(3)

ORDER AND REASONS
Before the Court is Plaintiff Claude C. Lightfoot, Jr.’s (“Plaintiff”) 1 Motion in Limine to
Exclude Deposition Testimony of Michael Smuck, Sr. and Michael Smuck, Jr. at Trial, filed March
7, 2012.2 Defendant Homeland Insurance Company (“Defendant”) filed its opposition on March 8,
2012.3 Having reviewed the motion, the response, the record, and the applicable law, the Court will
deny the motion.
I. Background
In this motion, Plaintiff argues that Defendant should be prohibited from introducing the
deposition testimony of Michael Smuck, Sr. and Michael Smuck, Jr. (collectively, “the Smucks”) at
trial given that both will be present and will testify live at trial. Plaintiff argues that, therefore, any

1

Plaintiff appears as trustee for the original party, MBS Management Services, Inc., which has since
declared bankruptcy.
2

Rec. Doc. 485.

3

Rec. Doc. 489.

testimony Defendant seeks can be elicited on cross-examination and that the Defendant could
reference the deposition testimony if necessary to impeach. Plaintiff argues only that because the
Smucks will testify live, introduction of the deposition testimony would be unduly cumulative and
that it is within the Court’s discretion to exclude the deposition testimony.
The deposition testimony in question was obtained under Federal Rule of Civil Procedure
30(b)(6), as the Smucks were deposed as corporate representatives of the original plaintiff to this
action, MBS Management Services, Inc. (“MBSMS”). Defendant responds that the Federal Rules
of Civil Procedure specifically allow the use of such deposition testimony for any purpose, regardless
of whether the witnesses are available to testify live.

II. Law and Analysis
Federal Rule of Civil Procedure 32(a)(3) provides that an “adverse party may use for any
purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director,
managing agent, or designee under Rule 30(b)(6). . . .” 4 A Rule 30(b)(6) designee is one who
testifies on an entity’s behalf and who must testify about information “known or reasonably available
to the organization.” 5 Unlike Federal Rule of Civil Procedure 32(a)(2), the use of deposition
testimony is not confined to use for impeachment.
The Fifth Circuit has specifically declared that “[a]s stated, [Rule 32(a)(2)] permits a party
to introduce the deposition of an adversary as part of his substantive proof regardless of the
adversary’s availability to testify at trial” 6 and has held that it is error for the district court to prohibit
4

Fed. R. Civ. P. 32(a)(3) (emphasis added).

5

Fed. R. Civ. P. 30(b)(6).

6

Coughlin v. Capitol Cement Co., 571 F.2d 290, 308 (5th Cir. 1978) (citations omitted).

2

an adversary’s use of deposition testimony of a designee.7 Although it is harmless error to exclude
such deposition testimony where a designee is available to testify live, it is still error to do so.8
Here, the Smucks were deposed under Federal Rule of Civil Procedure 30(b)(6) as designees
for MBSMS. Therefore, their depositions clearly fall within the confines of Federal Rule of Civil
Procedure 32(a)(3). Both the language of that rule and Fifth Circuit case law are clear that the
Smucks’ deposition testimony can, therefore, be used for “any purpose” by the adverse party,
regardless of whether the witness appears live. Defendant is an adverse party and, therefore, is
entitled to introduce the deposition testimony even though the Smucks will be available to testify
live.

III. Conclusion
Based upon the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion in Limine to Exclude Deposition
Testimony of Michael Smuck, Sr. and Michael Smuck, Jr. at Trial is DENIED.
NEW ORLEANS, LOUISIANA, this _____ day of March, 2012.
9th

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

7

Id. See also,Brazos River Authority v. GE Ionics, Inc, 469 F.3d 416, 434 (5th 2006) (noting that a court
must allow deposition testimony of a 30(b)(6) designee); Aetna Casualty Co. v. Guynes, 713 F.2d 1187, 1194 (5th
Cir. 1983).
8

Jackson v. Chevron Chemical Co., 679 F.2d 463, 466 (5th 1982). See also, Coughlin, 571 F.2d at 308;
Aetna, 713 F.2d at 1194.

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