The opinion of the court was delivered by: DENNY CHIN
Before the Court in this employment discrimination case are (1) White & Case's motion for leave to withdraw as counsel for defendant Ozer Ozman, (2) the parties' cross-motions in limine to exclude certain evidence from trial, and (3) plaintiff's application with respect to the use of Ozman's default at the trial of plaintiff's claims against defendant T.C. Ziraat Bankasi (the "Bank").
Plaintiff Antonio Marfia is a 52-year old man of Italian descent. He was employed by the Bank at its New York Branch from January 1984 until May 1987, when he was discharged. From September 1985 until his discharge, he worked under the direct supervision of Ozman, a Turkish national who was then stationed in New York as the General Manager of the New York Branch. As General Manager, Ozman was "authorized and empowered in the name and on behalf of the Bank to execute, authorize, and conduct all business matters related to the operations of the New York Branch." (Corrected Consent Pretrial Order, p. A-2). Plaintiff alleges that during his tenure at the Bank, Ozman made a number of statements to him that demonstrated a bias against Italians in particular and "non-traditional Americans" in general.
Plaintiff commenced this action in May 1988, complaining that the Bank and Ozman had discriminated against him because of his age and national origin. The Bank and Ozman, both represented by White & Case, submitted one answer and proceeded to defend the case jointly.
Plaintiff noticed Ozman's deposition for January 13, 1989. Ozman, however, failed to appear, and defendants also failed to produce certain documents. The Bank contends that Ozman had heart surgery a few weeks before the date for which his deposition was scheduled, and that consequently he was too ill to appear. After plaintiff made a motion to compel, the Court (Duffy, J.) ordered defendants to produce certain documents and ordered Ozman to appear for deposition. Defendants' cross-motion for a protective order was denied, and the Court assessed attorneys' fees of $ 500.
Thereafter, Ozman started his deposition on June 5, 1989, but refused to complete it. Moreover, he apparently destroyed evidence. Plaintiff again moved for sanctions, against both defendants. Judge Duffy entered a default judgment in October 1989, which stated in part as follows:
ORDERED, ADJUDGED AND DECREED that defendant Ozer Ozman, individually and in his official capacity as general manager of the bank, has engaged in bad faith conduct. Accordingly, pursuant to Fed. R. Civ. P. 37(b)(2)(C), the court ORDERS that each and every allegation of plaintiff's complaint shall be deemed admitted by defendant Ozer Ozman individually and in his official capacity as general manager of T.C. Ziraat Bankasi, New York Branch, and that plaintiff shall have Judgment against defendant Ozer Ozman, individually, and in his official capacity as general manager of T.C. Ziraat Bankasi, New York Branch, on each and every cause of action in plaintiff's complaint for the relief demanded in the complaint together with interest, costs and reasonable attorney fees.
Ozman was the General Manager of the Bank during the events leading up to the entry of the default judgment against him. The Bank terminated his employment on June 28, 1989, several weeks after he refused to complete his deposition, although it purported to make the termination effective retroactively to March 15, 1989. (Def. Mem. in Opp. to Pl. Proposed Use of Default Judgment at 5-6).
In March 1990, plaintiff moved for summary judgment on his claims against the Bank, relying on the default judgment entered against Ozman. Judge Duffy denied the motion in a memorandum endorsement, the entire text of which is as follows:
The default taken established nothing. There are questions of fact extant. Summary judgment is inappropriate and this motion is denied.
1. The Motion to Withdraw
White & Case's motion for permission to withdraw from representing Ozman is granted.
Ozman has refused to cooperate in the defense of this case. He apparently brought two lawsuits against the Bank in Turkey. Not only have his actions and inactions in the present lawsuit resulted in a default judgment against him, he has continued to refuse to cooperate with the Bank and White & Case. His action and inactions have prejudiced the Bank's defense of the case. Ozman's refusal to cooperate is sufficient reason to allow White & Case to withdraw.
Moreover, plaintiff will not be prejudiced by White & Case's withdrawal. Trial of this case will not be delayed, as a default judgment has been entered against Ozman and he would not be permitted to defend himself at trial in any event. Although the amount of damages to be assessed against Ozman has not yet been determined, that determination will be made after the trial of the claims against the Bank.
Leave to withdraw, however, is conditioned on White & Case remaining Ozman's agent solely for the purpose of receiving papers in connection with this lawsuit. Since Ozman originally designated White & Case to be his counsel in this case, service of papers on White & Case will be deemed adequate and proper service on Ozman, until Ozman retains new counsel and new counsel appears on his behalf. The Court notes that White & Case has had communications recently with Ozman in Turkey and thus is able to communicate with him. White & Case is directed to promptly forward to Ozman in Turkey any papers it receives in this case on his behalf.
The Bank seeks to exclude from trial (i) any evidence relating to the discharge or resignation of former employees of the Bank other than plaintiff and (ii) any evidence of discriminatory comments allegedly made by Ozman. Plaintiff cross-moves to exclude from trial (i) oral statements allegedly made by Ozman to Sadik Kutlu and/or others and (ii) a letter dated December 9, 1983 from Russell Reynolds Associates, Inc. to the Bank.
i. Evidence Relating To Other Employees
Plaintiff apparently proposes to testify at trial that six former employees of the Bank who were hired by Michael Baldwin, a former General Manager of the Bank's New York Branch, were discharged or forced to resign when Ozman became General Manager. This testimony will be excluded, however, because it is apparent that plaintiff lacks personal knowledge of the facts in question.
Under Rule 602 of the Federal Rules of Evidence, a witness may not testify to a matter unless he or she has personal knowledge thereof. See Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 764 (2d Cir. 1991) (a witness has personal knowledge if he or she testifies from "general observation and knowledge, and not upon conjecture or hearsay") The excerpts of plaintiff's deposition show that he lacks personal knowledge as to whether four of the six former employees in question were discharged or were forced to resign or left the Bank voluntarily. (See Marfia Dep. Tr. at 269-70, 272-73 (Diaz), 270-72 (Brieger), 267-69 (Tamberelli), 276-77 (Mangold)). At best, plaintiff's contention that these employees were fired or forced to resign is based on "conjecture or hearsay." Moreover, even assuming that plaintiff has some personal knowledge as to the voluntariness of the departures of Remigio and Taddeo, there is nothing in the record to show that plaintiff has any personal knowledge that age or national origin was a factor in their departures.
Significantly, plaintiff makes no effort in his memorandum of law in opposition to the motion in limine to show that he has any personal knowledge of the facts surrounding the departure of any of the six former employees in question. (See Pl. Mem. in Opp. to Def. Mot. in Limine at 17-18). Although plaintiff's counsel points out, in a letter submitted after the in limine motions were briefed, that plaintiff was a Senior Vice President of the Bank, plaintiff does not identify any specific facts relating to the departures of the six former employees as to which he has personal knowledge.
Accordingly, defendant's motion in limine is granted as to evidence relating to the departures of the six ...