ERMC LLC v. Millertown Pavilion LLC (JRG1)

Filing 54

ORDER that the bench trial in this matter on January 12, 2021 be conducted via video conference. Signed by Magistrate Judge Debra C. Poplin on 1/7/21. Associated Cases: 3:19-cv-00407-DCP, 3:19-cv-00408-DCP(ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ERMC, LLC,
Plaintiff,
v.
MILLERTOWN PAVILION, LLC, f/k/a
KNOXVILLE PARTNERS, LLC,
Defendant.

SECURAMERICA, LLC
Plaintiff,
v.
MILLERTOWN PAVILLION, LLC f/k/a
KNOXVILLE PARTNERS, LLC,
Defendant.

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No. 3:19-CV-407-DCP
Lead Case

No. 3:19-CV-408-DCP

ORDER
These cases are before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73 of the
Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings,
including entry of judgment.
The matter is before the Court sua sponte. During the pretrial conference on January 5,
2021, the parties reported to the Court that their witnesses would be testifying remotely. Plaintiffs
have included eight (8) specific individuals on their witness list [Doc. 43], and Defendant has
included an additional witness [Doc. 42] on its witness list. Thus, the parties will present the
testimony of approximately nine (9) witnesses during this bench trial.

Case 3:19-cv-00407-DCP Document 54 Filed 01/07/21 Page 1 of 3 PageID #: 675

Federal Rule of Civil Procedure 43 provides, “At trial, the witnesses’ testimony must be
taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other
rules adopted by the Supreme Court provide otherwise.” Fed. R. Civ. P. 43(a). Rule 43 further
states, “For good cause in compelling circumstances and with appropriate safeguards, the court
may permit testimony in open court by contemporaneous transmission from a different location.”
Fed. R. Civ. P. 43(a). In the present matter, the Court finds good cause in these compelling
circumstances to allow the witnesses to testify remotely. See Argonaut Ins. Co. v. Manetta
Enterprises, Inc., No. 19CV00482PKCRLM, 2020 WL 3104033, at *2 (E.D.N.Y. June 11, 2020)
(“The Court finds that the COVID-19 pandemic, and the months’ long delay it has caused—
indeed, continues to cause—in all court proceedings, constitutes good cause and compelling
circumstances to hold the bench trial in this matter via video-conference.”) (internal quotations
omitted).
Specifically, the Court finds that the issues caused by the current health pandemic warrant
conducting the trial by video conferencing. As the parties are fully aware, COVID-19 has caused
significant disruptions to everyday life, including court proceedings.

According to the

recommendations by the Centers for Disease Control and Prevent (“CDC”), individuals should
stay

at

least

six

feet

apart

from

others

and

avoid

crowds.

See

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (lasted visited
Jan. 7, 2021). During the status conference on December 3, 2020, the parties indicated that several
of the witnesses resided out-of-state and would need to travel for the trial. In addition, the parties
stated that several witnesses are elderly. The CDC has determined that older adults are “[a]t greater
risk

of

requiring

hospitalization

or

dying

if

diagnosed

with

COVID-19.”

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html

(last

2

Case 3:19-cv-00407-DCP Document 54 Filed 01/07/21 Page 2 of 3 PageID #: 676

visited Jan. 7, 2021). Under such compelling circumstances, the Court finds a bench trial using a
virtual format warranted. See Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 amendment
(“The most persuasive showings of good cause and compelling circumstances are likely to arise
when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but
remains able to testify from a different place.”).
In making this determination, the Court has also considered continuing the trial. As stated,
in the Court’s previous Order, however, it is not clear when the concerns related to COVID-19
will be alleviated. The Court finds the better course of action is to proceed with the bench trial via
video conferencing as opposed to postponing this case indefinitely. The Court is also persuaded
that the trial can be effectively tried using a virtual format given the short duration of the trial (i.e.,
one to two days) as indicated by the parties at the pretrial conference. This conclusion is reinforced
by the limited nature of the issues to be tried and testimony to be presented. See [Doc. 52]
(Memorandum and Order).
Finally, as other courts have found, appropriate safeguards can be established through
video conference testimony “to ensure accurate identification of the witness and that protect
against influence by persons presen[t] with the witness.” In re RFC & ResCap Liquidating Tr.
Action, 444 F. Supp. 3d 967, 972 (D. Minn. 2020) (internal quotations omitted). Accordingly, for
good cause in these compelling circumstances, the Court exercises its discretion under Rule 43(a)
and ORDERS that the bench trial in this matter be conducted via video conference.
IT IS SO ORDERED.
ENTER:
_________________________
Debra C. Poplin
United States Magistrate Judge

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