Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 1501

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Defendant J. Douglas Cassitys "Motion to Dismiss without Prejudice or in the Alternative to Sever" [ECF No. 1433 ] is DENIED. IT IS FURTHER ORDERED that Plaintiffs shall submit a Status Report regarding the provision of copies of deposition transcripts to Defendant J. Douglas Cassity. Signed by District Judge E. Richard Webber on 04/10/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.

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Case No. 4:09CV01252 ERW

MEMORANDUM AND ORDER
This matter comes before the court upon Defendant J. Douglas Cassity’s “Motion to
Dismiss without Prejudice or in the Alternative to Sever” [ECF No. 1433].
Defendant J. Douglas Cassity (“Doug Cassity”) is presently serving a term of
imprisonment for criminal charges arising out of the circumstances of this civil matter. In his
“Motion to Dismiss without Prejudice or in the Alternative to Sever,” Doug Cassity asks the
Court to either dismiss the case against him, or to sever the trial as to him, until such time as his
incarceration has been served and he is released from prison. Doug Cassity states that following
his January 17, 2014 incarceration, he was notified of some, but not all, of the depositions
scheduled in this matter. He further states Plaintiffs’ attorney sent him an email, listing the
scheduled depositions and their dates, on February 18, 2014. Doug Cassity asserts that his efforts
to communicate with Plaintiffs’ attorney and to secure permission from the Bureau of Prisons to
participate in the depositions by telephone have been unsuccessful, and he contends his inability
to so participate and to receive copies of the deposition transcripts deprive him of basic rights,

because he is unable to confront witnesses against him or review transcripts of their testimony to
prepare for trial [ECF Nos. 1433, 1491]. He also asks that an attorney be appointed to represent
him. Specifically, he claims his camp counselor, Brad Weisel, has been unable to “approve or
deny” his request for telephone access to the depositions.
In their “Opposition to Defendant Doug Cassity’s Motion to Dismiss or in the Alternative
to Sever” [ECF No. 1461], Plaintiffs state they have mailed to Doug Cassity at his prison address
notice of each deposition taken by them, including the date, time, and court reporter information,
as well as a dial-in number for his participation by telephone. Plaintiffs contend Doug Cassity’s
motion should be denied, because an incarcerated defendant has no inherent right to participate in
civil depositions,1 and because the factors bearing on questions of severance, e.g., the interests of
judicial economy and lack of prejudice to Doug Cassity, weigh strongly in Plaintiffs’ favor. They
assert Plaintiffs’ counsel has made, and continues to make, good-faith efforts to facilitate Doug
Cassity’s ability to participate in the depositions, including discussions with the prison’s officials
and legal department. Plaintiffs further state that, based on communications with the prison’s
warden and the United States Department of Justice, a resolution of the issue may be possible
[ECF Nos. 1499, 1499-1].
On April 10, 2014, the Court conducted a telephone conference to discuss the Motion,
during which Doug Cassity and counsel for Plaintiffs presented an update on Doug Cassity’s
access concerns. After hearing from both parties, and considering their submissions and

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As asserted by Plaintiffs, lawful incarceration necessarily limits an individual’s
privileges and rights, and the fundamental rule is that an incarcerated defendant has no
constitutional right to attend depositions in a civil action. See Price v. Johnston, 334 U.S. 285-86
(1948) (overruled on other grounds); In re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998).
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representations, the Court finds Plaintiffs and the Department of Justice have undertaken goodfaith efforts to facilitate Doug Cassity’s participation in future depositions by telephone, and it
appears the issue is resolved. The Court will deny the Motion. However, as stated during the
conference, Doug Cassity’s participation in deposition proceedings is an important concern for
the Court. Regarding his request for copies of deposition transcripts, the Court will not order
Plaintiffs to provide copies at their cost, but will rely on a representation made by Plaintiffs’
counsel as to her willingness to discuss with her clients the possibility of providing copies to
Doug Cassity. Plaintiff shall thereafter submit a Status Report to the Court, regarding the
discussions and any accommodations made to provide copies of deposition transcripts to Doug
Cassity.
IT IS HEREBY ORDERED that Defendant J. Douglas Cassity’s “Motion to Dismiss
without Prejudice or in the Alternative to Sever” [ECF No. 1433] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs shall submit a Status Report regarding the
provision of copies of deposition transcripts to Defendant J. Douglas Cassity.
Dated this

10th

day of April, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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