Mazzoni v. Long Island Railroad Company
Filing
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OPINION AND ORDER: For the foregoing reasons, Defendant's motion in limine, in which it requests permission to use the Discovery Deposition and the LIRR Statement as part of its direct case, is denied. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 6/15/2018) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROBERT MAZZONI,
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Plaintiff,
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LONG ISLAND RAILROAD COMPANY,
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Defendant.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
6/15/2018
DATE FILED: ______________
OPINION AND ORDER
16-CV-9366 (JLC)
JAMES L. COTT, United States Magistrate Judge.
A jury trial in this case, brought under the Federal Employers’ Liability Act,
is scheduled to commence on June 18, 2018. On June 1, 2018, Defendant Long
Island Railroad Company filed a motion in limine requesting permission to
introduce two items of evidence as part of its direct case, both involving its former
employee, Jose Alcalde: (1) portions of the transcript of Alcalde’s deposition taken
on August 1, 2017; and (2) Alcalde’s written statement, dated April 25, 2016, given
to the LIRR Office of the General Counsel. Plaintiff Robert Mazzoni has opposed
Defendant’s motion. For the reasons set forth below, Defendant’s motion is denied.
A.
Relevant Background
The Court assumes familiarity with the factual allegations and procedural
history of this case, and thus summarizes only the background relevant to
Defendant’s motion in limine.
In his amended complaint, Plaintiff alleges that he suffered an injury on
February 26, 2015 while employed by Defendant (Dkt. No. 5, ¶¶ 15–19). Alcalde, a
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former employee of Defendant, worked with Plaintiff on the day of his alleged
injury. On April 25, 2016, Alcalde provided a written statement to the LIRR Office
of the General Counsel about the events surrounding Plaintiff’s alleged injury (the
“LIRR Statement”). On August 1, 2017, the parties took Alcalde’s deposition (the
“Discovery Deposition”). Discovery closed on October 31, 2017 (Dkt. No. 27).
On March 7, 2018, the parties filed a proposed joint pretrial order in which
Defendant listed Alcalde as an “in person” trial witness (Dkt. No. 39 at 5). On
March 29, 2018, the parties attended a pretrial conference. During the conference,
Plaintiff’s counsel first “learned that Mr. Alcalde had retired from the railroad and
apparently moved out of the country” (Dkt. No. 53-1 at 2). Accordingly, on May 1,
2018, Plaintiff’s counsel filed a letter requesting that the Court so-order a subpoena
authorizing Alcalde’s de bene esse deposition, as Alcalde appeared to be “in the New
York Metropolitan area” at the time (Dkt. No. 49). The Court so-ordered the
subpoena (Dkt. No. 51), and the parties took Alcalde’s de bene esse deposition on
May 4, 2018 (the “de bene esse Deposition”).
On June 1, 2018, Defendant filed its motion in limine requesting permission
to use the Discovery Deposition and the LIRR Statement as part of its direct case
(Dkt. No. 52). On June 8, 2018, Plaintiff filed its opposition to Defendant’s motion
(Dkt. No. 53).
B.
The Discovery Deposition
In its motion in limine, Defendant states that it “intends to read portions” of
the Discovery Deposition “on its direct case” (Dkt. No. 52 at 1). Defendant contends
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that it may do so because Alcalde is an “unavailable” witness within the meaning of
Rule 32(a)(4)(B) of the Federal Rules of Civil Procedure. Plaintiff disputes
Defendant’s contention that Alcalde should be deemed an “unavailable” witness. 1
The Second Circuit’s decision in Manley v. AmBase Corp., 337 F.3d 237 (2d
Cir. 2003) is instructive in resolving the issue presented. In Manley, an attorney
(the plaintiff) sued a corporation (the defendant) due to its failure to indemnify the
plaintiff for a multimillion dollar settlement the plaintiff had paid in connection
with a bankruptcy proceeding. Prior to trial, the parties deposed the defendant’s
corporate chairman on two occasions: once during discovery, and another time in a
de bene esse deposition that the district court had ordered “when it appeared that
the eighty-year old” former chairman “would not travel to New York for trial.” Id.
at 247. The plaintiff prevailed at trial, but the district court granted a new trial on
the basis that the evidence did not support the jury’s verdict. At the second trial,
plaintiff was excluded from introducing excerpts of the chairman’s discovery
deposition. The defendant prevailed at the second trial. The plaintiff moved for a
new trial and argued that the district court erred by, inter alia, excluding excerpts
of the chairman’s discovery deposition from the second trial.
The Second Circuit affirmed the judgment against the plaintiff and concluded
that it was not an abuse of discretion for the district court to have excluded the
statements made by the chairman during his discovery deposition. In so
concluding, the Second Circuit rejected the plaintiff’s argument that the chairman
Neither party cites any case law in support of its respective position on this
particular issue (see Dkt. No. 52 at 1–2; Dkt. No. 53-1 at 3–4).
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“was not available to testify at trial” and thus that excerpts of the discovery
deposition should have been admitted. Id. at 247. The Second Circuit explained
that the plaintiff’s argument “ignore[d] the district court’s directive that [the
chairman’s] de bene esse deposition ‘substitut[e] for trial testimony’ and that the
parties conduct themselves at this deposition ‘as though [they] were at trial.’” Id. at
248. The Second Circuit added that “[e]xperienced counsel would understand this
instruction to mean that [the chairman] would not be viewed as an ‘unavailable’
trial witness within the meaning of Rule 804(b)(1). Rather, his de bene esse
testimony would be admitted as the equivalent of trial testimony, with
impeachment governed by Fed. R. Evid. 613(b).” Id.
The Second Circuit’s rationale in Manley is applicable here. Alcalde’s de bene
esse Deposition was authorized specifically because of his apparent unavailability to
testify at trial, as he had retired from the LIRR and now resides abroad. Under
these circumstances, the parties were aware that the de bene esse Deposition was
intended to substitute for Alcalde’s “live” testimony at trial. Because the de bene
esse Deposition took place, and video of that deposition is admissible as evidence at
trial, Alcalde cannot be considered an “unavailable” witness under Rule 32(a)(4)(B).
Indeed, during the de bene esse Deposition, Defendant’s counsel questioned
Alcalde about some of the statements he had made during the Discovery Deposition
(see Dkt. No. 53-4 at 52–55). That Defendant’s counsel asked these questions
suggests that she was aware that the de bene esse Deposition was essentially her
last opportunity to question Alcalde about the statements he had made during the
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Discovery Deposition. See, e.g., Manley, 337 F.3d at 248 (“The fact that [plaintiff’s]
counsel did question [the chairman] at the de bene esse deposition with respect to
certain aspects of his discovery deposition undermines [plaintiff’s] argument that he
did not understand the significance of that proceeding”).
In light of the reasoning in Manley, Alcalde cannot be characterized as an
“unavailable” witness under Rule 32(a)(4)(B). Defendant’s request to read portions
of the Discovery Deposition as part of its direct case is therefore denied. 2
C.
The LIRR Statement
Defendant contends that the LIRR Statement is excluded from the ordinary
hearsay rules, and thus admissible at trial, under Rules 801(d)(2) and 801(d)(1)(A)
of the Federal Rules of Evidence. This contention is meritless.
The hearsay exclusion under Rule 801(d)(2) applies when a statement is
“offered against an opposing party” and the statement is, among other things, made
by the opposing party itself or its agent. See Fed. R. Evid. 801(d)(2)(A), (D). The
hearsay exclusion does not apply to statements made by witnesses who do not
qualify as an “opposing party” or agents of such party. See, e.g., Knox v. Town of
Se., No. 11-CV-8763 (ER), 2014 WL 1285654, at *12 n.16 (S.D.N.Y. Mar. 31, 2014)
Plaintiff opposes Defendant’s request concerning the Discovery Deposition on
other grounds, including that the deposition transcript is inadmissible because
Alcalde did not review and sign it, and that Defendant cannot use the Discovery
Deposition because Defendant failed to cite it in the parties’ joint pretrial order.
Given its ruling on Alcalde’s availability through the de bene esse Deposition, the
Court will not address Plaintiff’s other arguments in this Opinion. If during the
trial Defendant attempts to offer and Plaintiff objects to that part of the de bene esse
Deposition where Alcalde is asked questions about his testimony in the Discovery
Deposition, the Court will resolve that objection at that time.
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(finding that “the hearsay exception for admissions by a party opponent is clearly
not applicable” where “alleged out-of-court statements” were made by two
witnesses, “neither of whom is a party to this action”), aff’d, 599 F. App’x 411 (2d
Cir. 2015); Dora Homes, Inc. v. Epperson, 344 F. Supp. 2d 875, 885 (E.D.N.Y. 2004)
(Rule 801(d)(2)(D) did not apply to statements by out-of-court declarants who were
independent contractors and not an “opposing party”).
Here, Defendant seeks to offer a written statement made by Alcalde (i.e., the
LIRR Statement) against Plaintiff. Alcalde, however, is neither an “opposing party”
himself nor an agent or employee of an opposing party, to wit, Plaintiff. Rule
801(d)(2) is thus inapplicable and cannot serve as a basis for the admission of the
LIRR Statement.
Unlike Rule 801(d)(2), Rule 801(d)(1)(A) is not limited to statements made by
an “opposing party” or its agents. Under Rule 801(d)(1)(A), a prior inconsistent
statement made by a declarant is not considered to be hearsay if that statement
“was given under penalty of perjury at a trial, hearing, or other proceeding or in a
deposition.” In the absence of proof that the prior statement was given at a “trial,
hearing, or other proceeding,” however, the statement will generally be considered
inadmissible. See, e.g., United States v. Lisyansky, No. 11-CR-986 (GBD), 2014 WL
1046750, at *3 (S.D.N.Y. Mar. 13, 2014) (where statement “was not made under
penalty of perjury,” the statement “could not be offered for the truth of the matter
asserted under Federal Rule of Evidence 801(d)(1)(A)”), aff’d, 806 F.3d 706 (2d Cir.
2015); Grancio v. De Vecchio, 572 F. Supp. 2d 299, 312 (E.D.N.Y. 2008) (statements
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made in “private interviews” did not qualify under Rule 801(d)(1)(A)); see also
Santos v. Murdock, 243 F.3d 681, 684 (2d Cir. 2001) (witness who met with attorney
and signed affidavit prepared by the attorney did not present circumstances
constituting an “other proceeding” within the meaning of Rule 801(d)(1)(A)).
In this case, Defendant has provided no information that the LIRR Statement
was given by Alcalde “under penalty of perjury at a trial, hearing, or other
proceeding or in a deposition,” as required by Rule 801(d)(1)(A). Therefore,
Defendant fails to demonstrate that the LIRR Statement is admissible under this
exclusion to the hearsay rules.
Finally, Defendant contends that the LIRR Statement is admissible under
the Second Circuit’s decision in Di Carlo v. United States, 6 F.2d 364 (2d Cir. 1925).
Di Carlo, however, is inapposite. In that case, the defendants were indicted on
various charges involving their assault upon a victim. Shortly after he was
assaulted, the victim had identified the defendants to the police as his assailants.
However, prior to trial, the victim was himself convicted and sentenced for certain
crimes. At trial, a number of witnesses testified that the victim had made out-ofcourt statements identifying the defendants as his assailants. Defendants
challenged the admission of the victim’s out-of-court statements on the basis that he
had a motive to lie—specifically, that the victim sought to cooperate with the
authorities (by lying) in the hope of reducing his own criminal sentence. The
district court ruled that the victim’s out-of-court statements identifying the
defendants were admissible, and the Second Circuit affirmed. The Second Circuit
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reasoned that “when the veracity of a witness is subject to challenge because of
motive to fabricate, it is competent to put in evidence statements made by him
consistent with what he says on the stand, made before the motive arise.” Id. at
366. In other words, if a witness testifies the same way both before and after a
“motive to fabricate” arises, such testimony tends to suggest that the witness is
being truthful despite the existence of a motive to lie.
Here, as Plaintiff points out, Alcalde had no “motive to fabricate” at any time.
Moreover, as Plaintiff also observes, in this case the LIRR Statement is actually
inconsistent in material respects with Alcalde’s testimony in his de bene esse
Deposition, which makes the rationale of Di Carlo inapplicable.
D.
Conclusion
For the foregoing reasons, Defendant’s motion in limine, in which it requests
permission to use the Discovery Deposition and the LIRR Statement as part of its
direct case, is denied.
SO ORDERED.
Dated: New York, New York
June 15, 2018
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