Baloga v. Pittston Area School District et al
Filing
45
MEMORANDUM (Order to follow as separate docket entry)Re:(Docs. 28, 30, & 36)Signed by Honorable Richard P. Conaboy on 6/1/17. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Mike Baloga
:
Plaintiff
:
v.
: Case No. 3:16-CV-1039
Pittston Area School District
:
and
: (Judge Richard P. Conaboy)
Jim Serino
:
Defendants
:
_________________________________________________________________
Memorandum
We consider here three motions arising from discovery disputes
between counsel.
Plaintiff has filed two of these motions, both of
them motions for sanctions.
(Docs. 28 and 30).
Defendant has
filed a Motion to Limit Deposition Testimony Pursuant to Federal
Rule of Civil Procedure 30(d)(3). (Doc. 36).
We note at the outset
that the Court has broad authority to craft an order “...to protect
a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the
following:...(D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain matters”.
See Rule 26(c)(1)(D). We shall consider these motions in the order
filed.
Before doing so we briefly describe the context for each.
This case stems from Defendants’ decision to reassign
Plaintiff from his position as a custodian in the high school
1
building of the Pittston Area School District to a similar position
in the district’s elementary school.
Plaintiff also functions as
the Vice-President of the union that represents all Pittston Area
School District support staff.
His principal allegation is that he
was transferred in retaliation for telling Defendant Jim Serino,
the maintenance director of the Pittston Area School District, that
staff morale was low due to the District’s decision to schedule
work on Martin Luther King Day, January 15, 2016.
Plaintiff
alleges further that the same day he voiced his concerns about
employee morale he was transferred to the primary school location.
He contends that he was reassigned for promoting union concerns and
that Defendants’ reassignment of him was designed to chill or to
interfere with legitimate union activity.
This, Plaintiff
contends, was an abridgment of his First Amendment right of free
speech that, due to Pittston Area School District’s status as a
state actor, constitutes a violation of 42 U.S.C. § 1983.
A.
Plaintiff’s First Motion for Sanctions.
(Doc. 28)
Plaintiff’s first motion concerns the deposition of Matt
Szumski on May 17, 2017.
Plaintiff asserts that Mr. Szumski’s
deposition was not properly noticed.
Plaintiff’s counsel stated
that she objected to the deposition going forward due to improper
notice and that, despite her objection, Defendants’ counsel deposed
2
Mr. Szumski in her absence.1
Plaintiff requests: that the
deposition be re-opened to afford Plaintiff’s counsel an
opportunity to cross examine Mr. Szumski; that Defendants be
required to unilaterally bear the costs of both the original and
re-opened depositions; and that Plaintiff be awarded an unspecified
monetary sanction and attorney fees in connection with the Szumski
depositions.
Defendants’ counsel explains that Plaintiff’s counsel should
have been aware of his intention to depose Mr. Szumski on March 17,
2017 because his paralegal had informed Plaintiff’s counsel that
Matt Shumsky (sic) was intended to be a deponent by email dated
February 21, 2017.
See Doc. 31-1.2
It must be noted, however,
that a subsequent (February 24, 2017) letter from Defendants’
counsel to Plaintiff’s counsel did not indicate that Mr. Szumski
was among the five proposed deponents for March 17, 2017.
As Plaintiff points out (Doc. 29 at 2) Rule 30(b)(1) of the
Federal Rules of Civil Procedure states that “[a] party desiring to
take the deposition of any person upon oral examination shall give
reasonable notice in writing to every other party to the action.”
The Court finds that Defendants’ counsel’s misspelling of Mr.
1
The Szumski deposition transcript reveals that Defense Counsel asked Mr. Szumski six
substantive questions. The rest of the transcript consists of legal wrangling over the propriety of the
deposition going forward.
2
Confusion may have been created because Mr. Szumski’s last name was incorrectly spelled
as indicated above.
3
Szumski’s name in his correspondence coupled with his omission of
Mr. Szumski’s name in his subsequent letter to Plaintiff’s counsel
defeats any notion that he supplied Plaintiff’s counsel with the
requisite “reasonable notice” contemplated by Rule 30(b)(1).
Accordingly, Mr. Szumski’s deposition may be reconvened in order to
give Plaintiff’s counsel a reasonable opportunity to cross-examine
him.
Plaintiff’s other requests that Defendant pay some monetary
sanction and be required to pay the full cost of both Mr. Szumski’s
depositions is denied because the Court finds that Defendants’
counsel made an attempt, albeit unsuccessful, to provide notice and
that his conduct was not so egregious as to require Defendant to
bear these costs unilaterally.
B.
Plaintiff’s Second Motion for Sanctions (Doc. 30).
Plaintiff’s second motion for sanctions seeks to reopen the
depositions of Kenneth Bangs and James O’Brien due to Defendants’
counsel’s direction to these deponents not to answer certain
questions posed by Plaintiff’s counsel.
Plaintiff specifically
complains that: (1) Defendants’ counsel refused to allow Mr. Bangs
to answer a question regarding his receipt of “comp time” as a
salaried employee; and (2) Defendants’ counsel refused to allow Mr.
O’Brien to answer a question regarding an allusion to back taxes he
may owe as a result of his operation of a tavern.
Plaintiff’s counsel’s question to Mr. Bangs, a maintenance
4
supervisor at Pittston Area School District, insinuated that by
accepting “comp time” as a salaried employee he was somehow
engaging in criminal activity. Plaintiff’s counsel’s line of
questioning also solicited a legal opinion from a lay person who
had no apparent expertise to support such an answer.
Defendants’
counsel instructed Mr. Bangs not to respond to these questions on
the grounds that he was not going to allow Mr. Bangs to potentially
incriminate himself and that Plaintiff’s counsel’s questions were
both oppressive and irrelevant to the subject matter of the case.
Plaintiff’s counsel’s questions to Mr. O’Brien, a warehouse
supervisor at Pittston Area School District,3 delved into whether
he owed back taxes in connection with his operation of a tavern
which he sold in 2008.
Defendants’ counsel objected to this line
of questioning as harassment and as irrelevant to the subject
matter involved in this law suit.
Plaintiff’s counsel contends
that Mr. O’Brien’s potential debt for back taxes reflects on his
credibility and makes this line of questioning relevant.
The Court
will observe that, had Mr. O’Brien been convicted of tax evasion,
that would certainly reflect upon his credibility.
However, his
potential debt for back taxes, to the extent there is one, sheds no
light on his credibility or the lack thereof since many honest
people owe back taxes for reasons that have nothing to do with
3
Mr. O’Brien had previously served in two elected positions: Luzerne County Recorder of
Deeds and as a school director of the Pittston Area School District.
5
dishonesty.
Having reviewed Plaintiff’s complaint, the briefs filed by the
parties, and the deposition transcripts provided by the parties,
the Court finds that Plaintiff’s counsel’s line of questioning to
both Mr. Bangs and Mr. O’Brien ranged too far afield from any
subject matter relevant to the issues in this case and were unduly
oppressive as well.
Accordingly, the Court finds that Plaintiff’s
counsel has had ample opportunity to question both men and, as
such, will deny Plaintiff’s second motion for sanctions in all
respects.
C.
Defendants’ Motion to Limit Deposition Testimony.
Defendants’ motion was made pursuant to Rule 30(b)(3)(A) of
the Federal Rules of Civil Procedure which provides:
...At any time during a deposition, the deponent
or a party may move to terminate or limit it on
the ground that it is being conducted in bad faith
or in a matter that unreasonably annoys,
embarrasses, or oppresses the deponent or party.
The motion may be filed in the Court where the
action is pending or the deposition is being
taken.
If the objecting deponent or party so
demands, the deposition must be suspended for the
time necessary to obtain an order.
Defendants’ motion seeks the Court’s approval of his
6
objections to the disputed testimony of Mr. Bangs and Mr.
O’Brien as outlined above.
Inasmuch as the Court has
already indicated that Defense counsel’s objections were
reasonable under the circumstances, they are once again
sustained.
Moreover, to reiterate, the Court finds that
Plaintiff’s counsel’s questioning of Mr. Bangs and Mr.
O’Brien was both unduly oppressive and that the information
sought by Plaintiff’s counsel was neither relevant to
Plaintiff’s claim nor “proportional to the needs of the
case.”
See Rule 26(b)(1) of the Federal Rules of Civil
Procedure.
The Court also finds that cases relied upon in
Plaintiff’s counsel’s brief (Doc. 30, Paragraphs 7-8) are
inapposite.
U.S. v. Lundy, 416 F.Supp. 2d. 325 (E.D.Pa.
2005), dealt with the question whether witnesses who had
been charged with crimes involving the failure to file tax
returns, the failure to report income or the provision of
fraudulent statements could be impeached on the basis that
such conduct is probative of truthfulness.
Here there is no
evidence that the deponents were charged with any crimes of
this nature.
Similarly, U.S. v. Collier, 527 F.3d 695 (8th
Cir. 2008) dealt with a witness who had committed a crime
that implicated dishonesty.
There is no indication in this
record that either witness involved in this dispute has been
charged with a crime, much less committed one.
7
For these
reasons, neither case provides an appropriate foundation
from which to impeach the credibility of Mr. Bangs or Mr.
O’Brien.
Consequently, Defendants’ Motion to Limit
Deposition Testimony (Doc. 36) will be granted.
An Order
consistent with all the above determinations will be filed
contemporaneously.
BY THE COURT
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: June 1, 2017
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?