Flores et al v. Town of Islip et al

Filing 96

MEMORANDUM of DECISION & ORDER: SO ORDERED that the Islip Defendants' motion Dkt. 95 in limine is denied and the Plaintiffs' letter motion Dkt. 93 is granted. Ordered by Judge Arthur D. Spatt on 4/8/2019. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
ANA FLORES, RENE FLORES, MARIA
MAGDALENA HERNANDEZ, MAGALI
ROMAN, MAKE THE ROAD NEW YORK,
and NEW YORK COMMUNITIES FOR
CHANGE,
Plaintiffs,

MEMORANDUM OF
DECISION & ORDER
2:18-cv-3549 (ADS)(GRB)
FILED 
CLERK 

4/8/2019 2:26 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

-againstTOWN OF ISLIP, ISLIP TOWN BOARD,
SUFFOLK COUNTY BOARD OF
ELECTIONS,
Defendants.
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SPATT, District Judge.
The Court assumes the parties’ familiarity with the facts and procedural history of this
action. Additional detail that is relevant to the instant motion is provided below. Presently before
the Court is a request by the Plaintiffs to consider (1) deposition testimony of employees of the
Town of Islip (“Islip”); and (2) declarations from individuals who will not testify at the hearing.
See Docket Entry (“Dkt.”) 93. Islip and the Islip Town Board (collectively, the “Islip Defendants”)
object, given the substantial discovery already undertaken and the appropriateness of relying on
inadmissible evidence. See Dkt. 94. The Court is also in receipt of the Islip Defendants’ motion
in limine to exclude certain evidence. Specifically, the Islip Defendants seek to preclude from
evidence (1) any documents or testimony that relies on hearsay; (2) any witness testimony that

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attempts to introduce inadmissible lay opinion; and (3) portions of the expert report of Dr. John R.
Logan, Ph.D. See Dkt. 95.
I. DISCUSSION
In deciding this dispute, the Court is guided by the Supreme Court’s statement in University
of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981):
The purpose of a preliminary injunction is merely to preserve the relative positions
of the parties until a trial on the merits can be held. Given this limited purpose, and
given the haste that is often necessary if those positions are to be preserved, a
preliminary injunction is customarily granted on the basis of procedures that are
less formal and evidence that is less complete than in a trial on the merits. A party
thus is not required to prove his case in full at a preliminary-injunction hearing, and
the findings of fact and conclusions of law made by a court granting a preliminary
injunction are not binding at trial on the merits.
Id. (internal citations omitted).
A. As to the Deposition Testimony of Islip Employees
The Plaintiffs argue that they can use the deposition testimony of Islip employees in lieu
of live testimony at the preliminary injunction hearing. Federal Rule of Civil Procedure 32(a)(3)
provides that “[a]n 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)
or 31(a)(4).” FED. R. CIV. P. 32(a)(3). This rule is “liberally construed” by district courts in this
Circuit. See, e.g., Redd v. New York State Div. of Parole, 923 F. Supp. 2d 393, 408 (E.D.N.Y.
2013). While “the court has discretion to exclude parts of the deposition that are unnecessarily
repetitious in relation to the testimony of the party on the stand, it may not refuse to allow the
deposition to be used merely because the party is available to testify in person.” Id. (quoting N.
Ins. Co. of New York v. Albin Mfg., Inc., No. 06-CV-190(S), 2008 WL 3285852, at *3 n.4 (D.R.I.
Aug. 8, 2008)).
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The Plaintiffs contend that Islip employees they intend to call as fact witnesses qualify as
“managing agents.” To determine whether an employee is a “managing agent” of a party, courts
in this Circuit consider the following:
(1) whether the individual is invested with general powers allowing him to exercise
judgment and discretion in corporate matters; (2) whether the individual can be
relied upon to give testimony, at his employer's request, in response to the demands
of the examining party; (3) whether any person or persons are employed by the
corporate employer in positions of higher authority than the individual designated
in the area regarding which the information is sought by the examination; (4) the
general responsibilities of the individual respecting the matters involved in the
litigation; and (5) whether the individual can be expected to identify with the
interests of the corporation.
Id. (internal citations omitted).
The Islip Defendants do not argue that the witnesses-at-issue are not “managing agents.”
Rather, they argue that Rule 32(a)(3) only applies to deposition testimony taken pursuant to Rule
30(b)(6). See Dkt. 94 at 2. No witness has testified pursuant to Rule 30(b)(6) in this case.
However, the Islip Defendants do not cite any authority in this circuit for such a proposition and
courts within this district have applied Rule 30(a)(3) in instances outside of Rule 30(b)(6)
testimony. See, e.g., MF Glob. Holdings Ltd. v. PricewaterhouseCoopers LLP, 232 F. Supp. 3d
558, 573–74 (S.D.N.Y. 2017); Redd, 923 F. Supp. 2d at 408-09.
As the Islip Defendants have not disputed whether the witnesses-at-issue constitute
“managing agents,” and have failed to provide any authority that limits the application of Rule
30(a)(3) to Rule 30(b)(6) witnesses, the Court finds that the Plaintiffs are entitled to rely on the
deposition testimony of Islip employees in post-hearing arguments.

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B. As to the Consideration of Declarations and Depositions Which Include Hearsay
Statements
The Plaintiffs seek to rely on declarations and other documentary evidence regardless of
whether the declarant testifies at the preliminary injunction hearing. Further, the Islip Defendants
seek to preclude all documents or testimony that relies on hearsay.
In Mullins v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010), the Second Circuit
“conclude[d] that hearsay evidence may be considered by a district court in determining whether
to grant a preliminary injunction.” Id. In considering a request for a preliminary injunction, the
Court is free to consider depositions, sworn testimony, and affidavits that contain hearsay. See,
e.g., Juniper Entm’t, Inc. v. Calderhead, No. 07-CV-2413, 2007 WL 9723384, at *8 (E.D.N.Y.
Sept. 29, 2007) (Spatt, J.) (“[I]n considering a motion for a preliminary injunction, the Court is
given discretion to rely solely on affidavits, depositions, and sworn testimony, even including
hearsay.” (internal citations omitted)).
Accordingly, the Court concludes that at a threshold level, declarations, depositions, and
other documentary evidence may be considered at the preliminary injunction stage. See, e.g.,
Mitsubishi Motors N. Am. Inc. v. Grand Auto., Inc., No. 18-cv-814, 2018 WL 2012875, at *1
(E.D.N.Y. Apr. 30, 2018) (considering numerous declarations in the course of deciding a
preliminary injunction, regardless of whether they contain hearsay (citing Mullins, 626 F.3d at 5152)).
However, to the extent the Plaintiffs plan to rely on inadmissible information to satisfy the
list of factors provided by the 1982 Senate Report and examined in Thornburg v. Gingles, 478
U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986), the Plaintiffs are cautioned that the Court will
apply the Federal Rules of Evidence to determine the weight to be accorded to that evidence and
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notes that there is a preference for live testimony regarding disputed issues of fact. See, e.g.,
Mullins, 626 F.3d at 52 (“The admissibility of hearsay under the Federal Rules of Evidence goes
to weight, not preclusion, at the preliminary injunction stage.”).
C. As to Whether the Plaintiffs May Offer Lay-Opinion Witness Testimony
The Islip Defendants seek to preclude the Plaintiffs potential use of lay-opinion witness
testimony, in violation of Rule 701 of the Federal Rules of Evidence.
Rule 701 states that “[i]f a witness is not testifying as an expert, testimony in the form of
an opinion is limited to one that is … rationally based on the witness’s perception; … helpful to
clearly understanding the witness’s testimony or to determining a fact in issue; and … not based
on scientific, technical, or other specialized knowledge within the scope of Rule 702.” FED. R.
EVID. 701. Yet, as previously discussed, courts may consider inadmissible evidence at the
preliminary injunction stage. See, e.g., Mullins, 626 F.3d at 52.
The Islip Defendants point to certain excerpts of Daniel Altschuler’s declaration as an
example: “For instance, Mr. Altschuler declares that it is his ‘belief’ that it is ‘virtually impossible
for Islip’s Latino community to elect a candidate of its choice to the Islip Town Board under the
current at-large system’ and that Latino ‘voter participation still lags behind white voter
participation’ because Latinos have not elected a candidate of choice in the past decade.” Dkt. 95
at 7 (quoting Dkt. 39 ¶ 6). Mr. Altschuler is currently the Director of Civic Engagement and
Research at Make the Road New York, a plaintiff in this action. He does not proclaim to be an
expert on voting-related matters.
While the Court notes that such opinions may violate Rule 701 of the Federal Rules of
Evidence, the Court will consider lay opinion evidence at the preliminary injunction stage.

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However, the Plaintiffs are again cautioned against relying too heavily on potentially inadmissible
evidence to support its argument regarding the 1982 Senate Report factors.
D. As to Whether to Strike Portions of John R. Logan’s Expert Report
Finally, the Islip Defendants ask this Court to preclude portions of the expert report of John
R. Logan, Ph.D., which purportedly contain hearsay statements. Specifically, the Islip Defendants
note that “[m]uch of Dr. Logan’s report, especially his sections on the police, public safety, and
the environment, is nothing more than a repetition of unreliable hearsay, without any expertise
added.” Dkt. 95 at 9.
Regardless of these alleged improprieties, the Court may consider inadmissible evidence
when deciding whether to issue a preliminary injunction. See, e.g., Mullins, 626 F.3d at 52; Half
Price Books, Records, Magazines, Inc. v. Barnesandnoble.com, LLC, No. CIV.A. 302CV2518-G,
2003 WL 23175432, at *1 (N.D. Tex. Aug. 15, 2003) (denying a motion to preclude an expert
report at the preliminary injunction stage, noting “the court is permitted to give weight to otherwise
inadmissible evidence when considering an application for a preliminary injunction”).
Accordingly, at a threshold level, the Court will not preclude any portion of Dr. Logan’s expert
report. Yet, those portions of the expert report that contain inadmissible hearsay may be afforded
little or no weight.
II. CONCLUSION
For the reasons stated above, the Islip Defendants’ motion (Dkt. 95) in limine is denied and
the Plaintiffs’ letter motion (Dkt. 93) is granted.

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SO ORDERED
Dated: Central Islip, New York
April 8, 2019

___/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge

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