Yelland v. Abington Heights School District et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 9/18/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM H. YELLAND,

:
:

Plaintiff

CIVIL ACTION NO. 3:16-2080
:

v.

(JUDGE MANNION)
:

ABINGTON HEIGHTS SCHOOL
DISTRICT, et al.,
Defendants

:
:

MEMORANDUM
Presently before the court is plaintiff’s brief in support of his request to
conduct the deposition of a minor non-party fact witness, Student C, against
his parents’ permission and to seek the court’s authorization to serve
subpoenas on Student C. (Doc. 31). The defendants have not taken any
position regarding plaintiff’s request. The plaintiff’s request will be GRANTED
and Student C will be compelled to testify at his deposition and to comply with
the subpoenas.1
On October 14, 2016, plaintiff, William H. Yelland, filed this civil rights
action pursuant to 42 U.S.C. §1983. (Doc. 1). Named as defendants were
Abington Heights School District, Eduardo Antonetti, the Board of Directors
for the Abington Heights School District, Michael Elia, and Michael Mahon.
Yelland was a former science teacher at Abington Heights Middle School. On
April 8, 2015, Student A and the student’s parents reported to Principal Elia
1

Since the court stated the complete background of this case in its
February 9, 2017 memorandum, (Doc. 18), it shall not fully repeat it herein.

and Vice Principal Antonetti that Yelland assaulted Student A during class.
Yelland was suspended without pay and later terminated. Subsequently,
Yelland was acquitted of state criminal charges stemming from the incident.
In the instant action, Yelland essentially alleges that his 14th Amendment
procedural due process rights were violated with respect to his suspension
and termination.
On February 9, 2017, the court issued a memorandum and order, (Doc.
18, Doc. 19), and granted in part and denied in part defendants’ motion to
dismiss, (Doc. 6), plaintiff’s complaint, (Doc. 1). Yelland was permitted to
proceed with his 14th Amendment pre-deprivation procedural due process
claim contained in Count I of his complaint as well as his state law malicious
prosecution claim contained in Count III. Defendant AHSD Board of Directors
was dismissed from this case with prejudice.
Remaining defendants filed their answer to the remaining claims in
Yelland’s complaint. (Doc. 20). Discovery then ensued. Yelland sought to
subpoena Student C to take his deposition and to produce documents.
However, Student C’s father objected and prevented service of the
subpoenas on his son. (Doc. 31-2). Yelland now seeks the court’s assistance
to have his subpoenas served on Student C so that he can be deposed.
Yelland seeks to depose Student C, who was a student in the middle
school in AHSD during the time Yelland taught there, as a fact witness,
regarding his statements to defendants, alleging that Yelland physically
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abused him, which defendants claim he made during their internal
investigation into the assault allegations Student A asserted against Yelland.
Student C is a minor still enrolled in AHSD and he is not a party in this case.
On May 2, 2017, Student C’s father refused to allow his son to testify at a
deposition and he ejected Yelland’s process server from his property who was
attempting to serve Yelland’s deposition and document production subpoenas
on Student C. (Doc. 31-2). On May 12, 2017, the court conducted a discovery
dispute telephone conference with counsel for the parties regarding, in part,
the incident in trying to serve the subpoenas on Student C and Yelland’s
request for the court’s permission to depose Student C. (Doc. 26). The court
directed Yelland to file a brief regarding his request to depose Student C.
Defendants did not take any position regarding Yelland’s request.
On June 2, 2017, Yelland filed his brief regarding the deposition of
Student C with exhibits. (Doc. 31). Yelland attached redacted versions of the
subpoenas directed to Student C as Exhibits B and C. (Doc. 31-3, Doc. 31-4).
Defendants did not file a responsive brief. The issue is whether the court will
compel a minor non-party witness to be deposed against his parents’ consent
and permission.
Yelland’s subpoenas to depose Student C was issued under
Fed.R.Civ.P. 45. The court in Highland Tank & Mfg. Co. v. PS Intern., Inc.,
277 F.R.D. 374, 379 (W.D. Pa. 2005), stated:
Generally, Federal Rule of Civil Procedure 45 authorizes the
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issuance of a subpoena commanding a person to whom it is
directed to attend and give testimony, or to produce and permit
the inspection of designated documents. [footnote omitted]. Rule
45(a)(1)(C). Rule 45 is the only discovery method whereby
information may be obtained from a nonparty to the suit. See Adv.
Comm. Note on 1991 Amendments to Fed.R.Civ.P. 45.
The Federal Rules of Civil Procedure do not distinguish minors from
adults for depositions. Rule 30(a)(1) provides, “[a] party may, by oral
questions, depose any person, including a party, without leave of court except
as provided in Rule 30(a)(2).” Even if a parent objects to the deposition of a
non-party minor child, courts have allowed the testimony provided it is: (a)
relevant; (b) not unreasonably duplicative; and (c) unlikely to cause the minor
irreparable harm. Arassi v. Weber-Stephen Products LLC, 2014 WL 1385336
(E.D.Wis. Apr. 9, 2014); Flanagan v. Wyndham Intern. Inc., 231 F.R.D. 98
(D.D.C. 2005).
First, the court considers whether Student C’s testimony is relevant to
this case. During defendants’ investigation into the assault allegations made
against Yelland by Student A, Yelland states that defendants also found some
alleged incidents between himself and Student C. Thus, in the May 7, 2015
Notice of Dismissal that the School District sent Yelland, it contained seven
grounds for termination, including the following grounds regarding Student C:
d. In recent weeks, Yelland pushed Student C into a table and
began to wrestle him. Yelland swept the student’s feet out from
under him, throwing the student onto his back on the floor.
e. In recent weeks, Yelland grabbed Student C by the head and
forced him to the floor. While holding the student down, Yelland
demanded that the student “lick the floor.” In spite of being held
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down forcefully, the student refused. In response Yelland grabbed
the student by the head and pulled Student C’s sweatshirt around
his neck until he could not breathe. The student licked the floor in
order to end Yelland’s assault.
f. On April 17, 2015 Yelland attempted to stab Student C with a
pen, causing the student to “get away.” Later that same day,
Yelland forcefully stuck his thumb into the student’s jaw at a
“pressure point” in order to cause pain. Yelland attempted to force
Student C into the mud, but Student C was able to break free.
g. On April 8, 2015 Yelland forcefully punched Student C in the
stomach leaving the student short of breath unable to breathe.
Student C fell to the ground following the attack.
(Doc. 1, ¶106).
Yelland alleges that “[t]he grounds asserted by the Defendants in the
Notice of Dismissal, which were based on the Principals’ sham investigation
and report, were completely untrue. Mr. Yelland did not do any of the things
alleged.” (Doc. 1, ¶107). Yelland also avers that defendants fabricated these
allegations to support the previously made decision to terminate him. Further,
Yelland avers that defendants reported the alleged incidents regarding
Student C to the Children, Youth, and Families Services and the criminal
authorities, and that Children, Youth, and Families Services determined the
abuse allegations regarding Student C were “unfounded.”
Yelland states that “Student C,[ ], has since told Plaintiff that he never
made [the above] statements” and that “Student C’s testimony regarding
whether he actually made those statements is directly relevant to Plaintiff’s
claims and the parties should be entitled to explore such testimony under
oath.” (Doc. 31, p. 4).
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Based on the above, the court finds that Student C’s testimony is indeed
relevant to the issues in this case.
Next, as Yelland states, “Student C’s testimony would not be duplicative
because there is no superior source for the same testimony and Student C
has not testified under oath concerning this matter.” (Id.). Student C’s
testimony relates directly to Yelland’s claims that the defendants’ investigation
was a sham and that the allegations against him were fabricated.
Finally, the court considers whether Student C has shown that he will
suffer “irreparable harm” if he is deposed.
Student C’s father basically contends that forcing his son to testify
imposes an undue burden since his son and his other children may suffer
retaliation while they are still attending school in the Abington Heights School
District if his son’s testimony is against the district’s position. Student C’s
father has mere suspicions however, and he does not present any evidence
to show that either Student C or his other children will suffer any “irreparable
harm.” Student C’s father only speculates that the Abington Heights School
District may try to intimidate or retaliate against Student C. Furthermore, there
is no showing that any official or teacher in the school district has threatened
to retaliate against Student C if he testifies in a deposition.
In Lamberth v. Clark County School Dist., 2015 WL 4076506 (D.Nev.
July 1, 2015), the court ruled that Jacob Lamberth, the minor younger brother
of Hailee Lamberth, a 13 year old student who committed suicide, and a
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plaintiff in a case his parents filed against the school district, must answer the
district’s interrogatories. The court, 2015 WL 4076506, *4, stated:
Courts, while mindful of the adverse emotional effect that
discovery may have on a child plaintiff or witness, have generally
refused to preclude an opposing party from obtaining the child’s
testimony on relevant and material issues in the case. In deciding
what restrictions, if any, to impose on discovery directed to a
young child party or witness, the court “must compare ‘the
hardship to the party [or person] against whom the discovery is
sought, if discovery is allowed, with the hardship to the party
seeking discovery if discovery is denied.’” Arassi v.
Weber–Stephen Products LLC, 2014 WL 1385336 (E.D.Wis.
2014), at *2, quoting Marrese v. American Academy of Orthopedic
Surgeons, 726 F.2d 1150, 1159 (7th Cir. 1984) (en banc).
The court in Lamberth, 2015 WL 4076506, *6, directed Jacob to answer
the district’s interrogatories and held that “the emotional stress that Jacob is
likely to experience by being required to answer these interrogatories is not
so substantial as to preclude them from being asked and answered.”
The court finds that the hardship to Yelland if his request to depose
Student C is denied is much greater than the alleged speculative hardship to
Student C if he is compelled to testify. While the court understands the
concerns of Student C’s parents and their desire to protect their son, there is
simply no evidence that any defendant or anyone at AHSD threatened
retaliation against Student C or against his siblings, who also attend school
in the district, if he testifies in this matter. As such, Yelland’s request will be

7

granted and Student C will be directed to comply with Yelland’s deposition
subpoena. Additionally, defendants will be directed to immediately report to
the court any complaint of retaliation made to them by Student C, his parents,
or by any of his siblings attending school in the district. The court forewarns
the parties that any witness intimidation in this case will not be tolerated.
Accordingly, the court will grant Yelland’s request to compel Student C
to be deposed. The court will also grant Yelland’s request for assistance in
serving his subpoenas and direct the United States Marshals Service,
pursuant to 28 U.S.C. §566(a) and (c), to serve Student C with the
subpoenas. Rule 45(b)(1) states that “[s]erving a subpoena requires delivering
a copy to the named person.” However, “the text of Rule 45(b) ‘does not
unequivocally require’ personal service, but instead, service ‘requires
delivering a copy’ of the subpoena to the witness without specifying the
method of delivery.” Bland v. Fairfax County, Va., 275 F.R.D. 466, 471
(E.D.Va. 2011) (citations omitted). In Bland, the court “ joined with the minority
position in permitting other than personal service for Rule 45(b) third party
witness subpoenas”, and allowed the service of a subpoena on a witness to
testify at trial by FedEx and certified mail since “the non-personal service was
effected by means reasonably sure to complete delivery.” The Bland Court
conducted an extensive analysis of what constitutes delivery of a subpoena
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on the named person for purposes of Rule 45. The court indicated that Wright
and Miller, 9A Fed. Prac. & Proc. Civ. §2454 (3d ed.), noted “[i]n recent years
a growing number of cases have departed from the view that personal service
is required and alternatively have found service of a subpoena under Rule 45
proper absent personal service.” Id. at 468; see also In re New England
Compounding Pharmacy, Inc. Products Liability Litigation, 2013 WL 6058483,
*4-*5 (D.Mass. Nov. 13, 2013) (“This Court agrees with the growing minority
trend and finds that service was proper in this case [by Federal Express or
certified mail], where it was effectuated by a means reasonably calculated to
complete delivery and the respondents received actual notice of the
subpoena.”).
This court concurs with the Bland Court’s analysis, without repeating it
herein, and with the finding that “the form of Rule 45(b), [ ], does not compel
requiring personal service to the exclusion of other manners of service”, id.
at 472, for this particular case involving serving a minor. The court specifically
notes that it limits its finding only to this case in order to protect the interests
of the minor, especially since it finds that serving one of Student C’s parents
is without doubt “reasonably calculated to complete delivery.”2 Thus, the court
2

As the court in Yarus v. Walgreen Co., 2015 WL 4041955, *2 n. 5
(E.D.Pa. July 1, 2015), noted, “[t]here is a split among the circuits whether
‘delivery’ of the subpoena requires personal delivery” and “the Third Circuit
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will direct the Marshals Service to serve Yelland’s subpoenas on one of
Student C’s parents who resides with him. An appropriate order will follow.

s/

Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATED: September 18, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2080-02.wpd

has not issued a precedential decision on this issue.” Although the Yarus
Court also noted that “District Courts in this Circuit have consistently applied
Rule 45’s service requirement strictly”, this court has specifically limited its
holding to the instant case involving a minor.
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