Mazariegos v. Paquin et al

Filing 65

ORDER signed by Judge Rudolph T. Randa on 6/23/2015. Plaintiff will be allowed to continue prosecuting case and testify as needed by contemporaneous video transmission from Guatemala (see Order for details). Discovery due 9/28/2015; Dispositive Motions due 10/30/2015. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LUIS FERNANDO MAZARIEGOS,
Plaintiff,
-vs-

Case No. 13-CV-397

JOHN PAQUIN, J. ALDANA,
DR. APPLE, MICHAEL HOWARD,
GARY HAMBLIN, CAPTAIN GEEGEAR,
LT. MIKLE, NANCY PADGETT,
and JEVON D. JACKSON,
Defendants.

DECISION AND ORDER
On April 8, 2015, the plaintiff was deported to Guatemala. On April
14, 2015, the Court directed the parties to address the issue of whether the
plaintiff should be permitted to testify at trial via contemporaneous
transmission from Guatemala. The parties have briefed the issue. Based
on the discussion set forth below, the Court will permit the plaintiff to
continue prosecuting this case and testify as needed by contemporaneous
video transmission from Guatemala.
The plaintiff contends that his immigration status and limited
financial resources justify permitting him to testify remotely.

He also

contends that the defendants will not be unduly prejudiced if the plaintiff
testifies remotely, and that permitting him to testify remotely would

advance both judicial and legislative goals. In response, the defendants
contend that the plaintiff has not exhausted his options to appear in
person, has not identified appropriate safeguards (including the plaintiff
being the only person in the room when he is testifying), and has not shown
that his suggested course of action can and would be appropriately
implemented.
“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). Despite this limited exception to live testimony, “[t]he importance of
presenting live testimony in court cannot be forgotten.” Fed. R. Civ. P. 43
advisory committee’s note (1996 amendment).

“Transmission cannot be

justified merely by showing that it is inconvenient for the witness to attend
the trial.” Id.
Here, the plaintiff submitted his Warning to Alien Ordered Removed
or Deported document which states that he is prohibited from entering,
attempting to enter, or being in the United States for a period of ten years
from the date of his deportation. (Mazariegos Supp. Decl. ¶ 2, Exh. A.)
The plaintiff’s deportation document also states that, “[a]fter your removal
has been effected you must request and obtain permission from the
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Attorney General to reapply for admission to the United States during the
period indicated.” (Id.) The defendants point to that latter provision in
support of their assertion that the plaintiff has not exhausted his options to
appear in person. They contend that the Court should require the plaintiff
to request permission for entry before permitting any videoconference
testimony. However, in Angamarca v. Da Ciro, Inc., 303 F.R.D. 445, 447
(S.D. N.Y. 2012), the court determined that that “legal infeasibility of
attending a deposition or trial in person because of one’s immigration
status rises to the level of compelling circumstances since Angamarca
cannot be compelled to attend without either securing requisite
authorization or violating immigration laws.”
Moreover, here, assuming that the Attorney General would approve
the plaintiff’s reentry, his financial situation prohibits traveling to the
United States.

According to the plaintiff, although he is seeking

employment in Guatemala, he is currently unemployed. (Mazariegos Decl.
¶ 7.) He saved $1,400 while incarcerated in Wisconsin but this amount of
money “is barely enough to live off of while I find my bearings in
Guatemala.” (Mazariegos Decl. ¶¶ 7-8.) These circumstances, together
with the plaintiff’s recent deportation, qualify as compelling circumstances
under Rule 43(a).

Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 480 (D.
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Maryland 2010) (laborers who had brought FLSA action against employer
demonstrated good cause to use videoconferencing in lieu of live testimony
at trial in Maryland for those laborers who resided in Honduras, where
Honduran workers made less than $7,000 a year, forcing them to travel to
the United States would impose substantial hardship, and defendant
would not be prejudiced since each witness would testify in open court,
under oath, and face cross-examination).
Based on the foregoing, the Court will permit the plaintiff to testify,
for a deposition or trial, from Guatemala. This order will provide deadlines
for the completion of discovery and for filing dispositive motions. If this
case survives summary judgment, the plaintiff will need to provide the
Court and the defendants with additional details regarding his trial
testimony.

See Fed. R. Civ. P. 43(a).

The advisory committee’s notes

provide:
Safeguards must be adopted that ensure accurate
identification of the witness and that protect against influence
by persons present with the witness. Accurate transmission
likewise must be assured.
Other safeguards should be employed to ensure that
advance notice is given to all parties of foreseeable
circumstances that may lead the proponent to offer testimony
by transmission. Advance notice is important to protect the
opportunity to argue for attendance of the witness at trial.
Advance notice also ensures an opportunity to depose the
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witness, perhaps by video record, as a means of supplementing
transmitted testimony.
Fed. R. Civ. P. 43(a) advisory committee’s notes (1996 amendments).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the Court will permit the plaintiff to
continue prosecuting this case and testify as needed by contemporaneous
video transmission from Guatemala, as set forth herein.
IT IS FURTHER ORDERED that the deadline for the completion
of discovery is September 28, 2015, and the deadline for filing dispositive
motions is October 30, 2015.
Dated at Milwaukee, Wisconsin, this 23 day of June, 2015.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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