Floodbreak, LLC v. T. Moriarty & Son, Inc. et al
Filing
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ORDER granting 37 . For the reasons set forth in attached Opinion and Order, Defendants' motion is GRANTED. Ordered by Magistrate Judge Joseph A. Marutollo on 10/23/2024. (GWM) Modified on 10/23/2024 (GWM).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FLOODBREAK LLC,
Plaintiff,
v.
T. MORIARTY & SON, INC., and JAMES P.
MORIARTY JR,
OPINION & ORDER
23-CV-6185
(Komitee, J.)
(Marutollo, M.J.)
Defendants.
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JOSEPH A. MARUTOLLO, United States Magistrate Judge:
In this patent infringement action, Plaintiff Floodbreak LLC alleges that Defendants T.
Moriarty & Son, Inc. (“TMS”) and James P. Moriarty, Jr. (collectively, “Defendants”) directly
infringed Plaintiff’s U.S. Patent No. 9,752,342 (the “’342 patent”) by selling mechanical closure
devices (“MCDs”) to the New York Metropolitan Transit Authority (“MTA”) and that Mr.
Moriarty induced TMS’s direct infringement. See Dkt. No. 37 at 3 1; see also Dkt. No. 36 ¶¶ 1, 13.
Currently before the Court is Defendants’ motion for an order, pursuant to Federal Rule of
Civil Procedure 30(b)(4), directing that the deposition of non-party witness, Kevin F. Biebel, be
conducted remotely for the witness and all counsel via Zoom or Microsoft Teams. Dkt. No. 37 at
2. For the reasons set forth below, Defendants’ motion is GRANTED.
I.
Background
According to Plaintiff, Mr. Biebel “played a central role in the events that led to this
lawsuit—his company, Art Metal Industries, LLC (‘AMI’), supplied to TMS the 398 [MCDs] at
issue in this case.” Dkt. No. 37 at 6. Plaintiff had previously brought a lawsuit against Mr. Biebel
and AMI for infringing the ’342 patent. See Dkt. No. 36 ¶ 31 (citing FloodBreak, LLC v. Art Metal
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Page citations are to the ECF-stamped page numbers.
Industries, LLC, No. 18-CV-503 (SRU) (D. Conn.) (“the Connecticut Litigation”). According to
Plaintiff, “on July 21, 2022, AMI, Biebel, and AMI’s parent company, Diego Trust, LLC [],
stipulated to the validity and enforceability of the ’342 patent.” Id. ¶ 34. The stipulation allegedly
“specified that they directly infringed and induced infringement of at least claims 1, 4–5, 8, 10, 14,
and 20–24 of the ’342 patent by supplying MCDs to Moriarty Inc., [a construction company owned
by Mr. Moriarty]; that in doing so they acted willfully; and that their infringement damaged
[Plaintiff] in the amount of at least $17,811,202.” Id. ¶¶ 4, 34.
The parties note that Mr. Biebel pled guilty to tax-related offenses and will begin his prison
sentence on January 7, 2025. See Dkt. No 37 at 3. Mr. Biebel resides in South Carolina under
parole restrictions in connection with his guilty plea. See id.
On October 2, 2024, Defendants served a third-party subpoena on Mr. Biebel for a
deposition at 10:00 a.m. on November 7, 2024 at 1104 Brooks Willis Drive, Hardeeville, South
Carolina. See Dkt. No. 37-1 at 2. On the face of the subpoena, however, Defendants noted that
“Defendants will attempt to obtain a stipulation of the parties and/or an Order from the Court to
conduct the deposition by Zoom or Microsoft Teams pursuant to Rule 30(b)(4).” Id.
In scheduling Mr. Biebel’s deposition, Defendants spoke with Mr. Biebel’s attorney, who
asked for the accommodation of proceeding with the deposition remotely for several reasons. See
Dkt. No. 37 at 3. Specifically, according to Defendants, Mr. Biebel’s attorney claims that “Mr.
Biebel is now destitute and cannot afford to fly his lawyer to Hardeeville, South Carolina, where
he resides under parole restrictions.” Id. Additionally, according to Defendants, Mr. Biebel “was
recently diagnosed with and received treatment for malignant melanoma” and also has “healthcare
responsibilities for his wife, who has Stage 4 cancer and resultant unstable diabetes.” Id. at 4.
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Further, Defendants note that Mr. Biebel’s availability is limited given his order to report to prison
on January 7, 2024. Id.
Following a conferral with Defendants about the method of deposing Mr. Biebel, Plaintiff
served, on October 8, 2024, a separate third-party subpoena on Mr. Biebel for a deposition at 9:00
a.m. on November 7, 2024 at 1104 Brooks Willis Drive, Hardeeville, South Carolina. See Dkt.
No. 37-5 at 2. Plaintiff also requested the production of nine categories of documents from Mr.
Biebel and AMI as part of its subpoena. See id. at 2, 8–10.
Plaintiff’s counsel has offered to schedule Mr. Biebel’s deposition at a neutral location near
Mr. Biebel’s home in South Carolina. See Dkt. No. 37 at 6. Plaintiff’s counsel is amenable to
Defendants or Mr. Biebel’s counsel appearing remotely at Mr. Biebel’s deposition, but Plaintiff
wishes to conduct its “cross-examination” in person. See id. at 7. Defendants, however, object
and argue that no attorney should be permitted to depose Mr. Biebel in person, particularly if the
Court permits a remote deposition to occur. See id. at 3–5.
II.
Discussion
The Federal Rules of Civil Procedure specifically provide for the taking of depositions by
telephone or other remote means. See Fed. R. Civ. P. 30(b)(4). “Since Rule 30(b)(4) does not
specify the standards to be considered in determining whether to grant a request [for a remote]
deposition . . . the decision to grant or deny such an application is left to the discretion of the Court,
which must balance claims of prejudice and those of hardship . . . and conduct a careful weighing
of the relevant facts.” In re Terrorist Attacks on Sept. 11, 2001, 337 F.R.D. 575, 578 (S.D.N.Y.
2020) (citations omitted).
Under Rule 30.2 of the Local Rules of the U.S. District Courts for the Southern and Eastern
Districts of New York, “[t]he motion of a party to take the deposition of an adverse party by
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telephone or other remote means will presumptively be granted.” Authorization to take telephonic
or virtual depositions does not depend upon the hardship incurred by the applicant, see Zito v.
Leasecomm Corp., 233 F.R.D. 395, 398 (S.D.N.Y. 2006); instead, it depends upon the hardship of
the deponent. See RP Family, Inc. v. Commonwealth Land Title Ins. Co., No. 10-CV-1149 (DLI)
(CLP), 2011 WL 6020154, at *3 (E.D.N.Y. Nov. 30, 2011).
Here, the Court finds that a fully remote deposition of Mr. Biebel is warranted based on
the state of his health and finances, as well as the parole restrictions of his upcoming prison term.
See Dkt. No. 37 at 3-6 (explaining the hardships imposed on Mr. Biebel to participate in an inperson deposition); see also Dkt. No. 37-3.
Plaintiff’s argument that a remote proceeding would prejudice its “right to examine [Mr.
Biebel] in the deposition in the usual way” (Dkt. No. 37 at 8) is unpersuasive, as courts have
concluded that video depositions achieve such ends. See, e.g., In Re Terrorist Attacks, 337 F.R.D.
at 578 (“Deposition by video allows the party ‘to view [the witness’s] demeanor during
questioning’” (citations omitted)); see also Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp.
3d 571, 575–76 (S.D.N.Y. 2020) (“If the lack of being physically present with the witness were
enough prejudice to defeat the holding of a remote deposition, then Rule 30(b)(4) would be
rendered meaningless”). “Although the lawyers might gain some marginal value by observing the
witness in person, ultimately the purpose of a deposition is to gather information and commit a
witness’s testimony. The product of the deposition is the transcript and video footage, which will
be unaffected whether the deposition is conducted remotely or in person.” In re Terrorist Attacks,
337 F.R.D. at 579; see also Tangtiwatanapaibul v. Tom & Toon Inc., No. 17-CV-816 (LGS)
(KHP), 2017 WL 10456190, at *3 (S.D.N.Y. Nov. 22, 2017) (“remote depositions are a
presumably valid means of discovery”).
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Indeed, Plaintiff’s entire argument is belied by the fact that Plaintiff has recently taken Mr.
Biebel’s deposition on multiple occasions via Zoom, to wit: Plaintiff deposed Mr. Biebel in the
Connecticut Action on September 21, 2021 and August 15, 2024, respectively, via Zoom. See
Dkt. No. 37-4 at 2, 3.
Although Plaintiff’s counsel volunteers to travel to South Carolina to be physically present
during the deposition, the interests of fairness and the furtherance of a “just, speedy, and
inexpensive” resolution favors that the deposition be remote for all parties. See Fed. R. Civ. P. 1;
see also Simon v. Philip Morris Inc., 200 F.R.D. 21, 26 (E.D.N.Y. 2001) (“The language and spirit
of the Federal Rules of Civil Procedure provide trial judges with the authority to structure trials
efficiently and fairly”); Doubleday & Co. v. Curtis, 763 F.2d 495, 502 (2d Cir. 1985) (stressing
that the Federal Rules of Civil Procedure “embody the spirit of fairness”).
Finally, Plaintiff’s concern that a video deposition would prevent it from obtaining the
necessary documents to cross-examine Mr. Biebel is without merit. “[C]ourts have found that
exhibits can be managed in remote depositions by sending Bates-stamped exhibits to deponents
prior to the depositions or using videoconference technology to share documents and images
quickly and conveniently.” Rouviere, 471 F. Supp. at 575 (citation omitted); see also United States
for Use & Benefit of Chen v. K.O.O. Constr., Inc., 445 F. Supp. 3d 1055, 1057 (S.D. Cal. 2020)
(collecting cases).
Notwithstanding the above, Mr. Biebel shall abide by Plaintiff’s subpoena and produce all
responsive documents to Plaintiff in advance of the deposition, and by no later than November 4,
2024.
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Defendants are ordered to serve a copy of this Opinion and Order on Mr. Biebel’s counsel
by October 24, 2024.
SO ORDERED.
Dated: Brooklyn, New York
October 23, 2024
s/ Joseph A. Marutollo
JOSEPH A. MARUTOLLO
United States Magistrate Judge
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