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Lopez v. Meluzio

December 29, 2006


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

I. Background

A. Procedural History

In accordance with Local Civil Rule 37.3(c), Plaintiff's counsel filed a letter motion seeking to compel the attendance of four non-parties served with subpoenas DE [51]. According to Plaintiff's motion, despite proper service of the subpoenas, non-parties Martino Pisani, Janine Meluzio, Vincent Pinello and Violet Pinello did not appear for their depositions or produce any requested documents. Defendants' counsel filed his response DE [52], which stated that he did not represent the non-parties and therefore, could not oppose Plaintiff's motion to compel, but did object to producing non-party Vincent Pinello because of his handicap. In support of his position, Defendants' counsel included a copy of a February 11, 2002 Order bearing Index number 24284/01 and signed by Justice Charles Thomas of the New York State Supreme Court for the County of Queens (the "Incapacitation Order") holding Vincent Pinello incapacitated under New York Mental Health & Hygiene Law § 81.02(b) and appointing the Defendant Carmela Meluzio a/k/a Carmela Pinello ("Defendant Carmela Meluzio") as Mr. Pinello's guardian for the "personal needs and/or property management of Vinny Pinello." Defendants' counsel argued that the Incapacitation Order made the Defendant Carmela Meluzio the sole arbiter of Vincent Pinello's medical records, social life and lawful liabilities. Therefore, Defendants' argued, Vincent Pinello could not ably testify or even fully comprehend the questions posed to him at a deposition. The Defendants further argued that Vincent Pinello's examination would be unduly burdensome and irrelevant to the Plaintiff's claims.

In response, Plaintiff supplemented her motion to compel by filing a copy of the transcript of Vincent Pinello's testimony taken at his Article 81 hearing on December 11, 2001. DE [53]. Plaintiff's counsel argued the transcript shows that despite Vincent Pinello's handicap, he is nonetheless competent and capable of testifying. Defendants filed their response DE [54] which sought to distinguish the nature of the guardianship proceeding from the rigors of a deposition. Further, Defendants' counsel asserted that in the incapacitation proceeding, the court never made a finding whether Vincent Pinello understood the nature of the oath, nor did the court even put Vincent Pinello under oath. Rather, Defendants note, the court simply relied on the representations of Vincent Pinello's attorney that his client understood the oath.

The Case Management and Scheduling Order directed that all discovery was to be completed by April 14, 2006. By letter motion filed April 7, 2006 DE [55], Plaintiff's counsel moved to extend discovery to enable Plaintiffs to depose the remaining four non-party witnesses, an item which had been the subject of their March 6, 2006 motion to compel. On April 13, 2006, Plaintiff filed a third motion to compel DE [57] with respect to various camp and school records of Vincent Pinello sought by Plaintiff's counsel in the initial September 2005 Interrogatories.

With the exception of the specific motion to compel the testimony of Vincent Pinello, these issues were resolved by prior Order of the Court DE [59].

B. Facts

The Complaint, filed January 3, 2005 DE [1], alleges that for a period of three years, Plaintiff was employed by Defendants primarily as caretaker for Vincent Pinello, then a teenager. The allegations contained in the Complaint, if true, describe arduous and seemingly less than humane working conditions. Plaintiff alleges she was paid a weekly wage of $250 for working six 18-hours days a week, which her counsel asserts amounts to approximately $1.98 per hour over the course of her employment, in violation of state and federal statutory and common law. The Complaint asserts twelve causes of action for, inter alia, violations of the New York State and federal minimum wage laws, breach of contract, unjust enrichment, negligent misrepresentation, fraudulent inducement and conversion.

II. Standard of Review

Federal Rule of Civil Procedure 45(c)(2)(B) provides that upon failure to properly comply with a subpoena, the party serving the subpoena "may, upon notice to the person commanded to produce, move at any time for an order to compel production." FED. R. CIV. P. 45(c)(2)(B). A motion to compel is "entrusted to the sound discretion of the district court." United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000), cert denied, 531 U.S. 1015 (2000). The Second Circuit noted that "rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion." DG Creditor Corp. v. Dabah, (In re DG Acquisition Corp.), 151 F.3d 75, 79 (2d Cir. 1998) (citing Cruden v. Bank of N.Y., 957 F.2d 961, 972 (2d Cir. 1992)). An abuse of discretion is considered to have occurred if a court "bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Where, as here, "discovery is sought from a non-party, the Court should be particularly sensitive to weighing the probative value of the information sought against the burden of production on the non-party." Fears v. Wilhelmenia Model Agency, Inc., No. 02-CV-4911, 2004 WL 719185, at *1 (S.D.N.Y. April 1, 2004). See also Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996).

III. Discussion

It is undisputed that the parties disagree as to the amount of hours worked by Plaintiff -- facts both necessary and essential to establishing or refuting her claims. Plaintiff's counsel believes that by deposing Vincent Pinello -- the minor for whom Plaintiff was hired to perform caretaker services -- a clearer understanding of the number of hours worked by Plaintiff will be gleaned. At oral argument and in their submissions to the Court, Defendants argued that because of his handicap and the existence of the Incapacitation Order, Vincent Pinello cannot testify. Therefore, any information elicited from Vincent Pinello will bear the imprimatur of unreliability, particularly since, as counsel argues, it is unknown whether Vincent Pinello even understands the nature of an oath. Defendants further contend that due to Vincent Pinello's emotional fragility, it is also unknown whether he can withstand the physical and mental rigors of a deposition. The central issues, then, are (1) whether Vincent Pinello is competent to be deposed, and (2) whether he should be compelled to do so under Federal Rule of Civil Procedure 37.

Federal Rule of Evidence 601 states that every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision the competency of a witness shall be determined in accordance with State law.

FED. R. EVID. 601. The Federal Rules of Evidence provide each witness with an initial presumption of competency. See United States v. Blankenship, 923 F.2d 1110, 1117 (5th Cir. 1991); United States v. Khoury, 901 F.2d 948, 966 (5th Cir. 1990); United States v. Bloome, 773 F. Supp. 545, 546 (E.D.N.Y. 1991). Indeed, the only parties deemed "incompetent" to testify under the Federal Rules of Evidence are judges and jurors. See FED. R. EVID. 605; FED. R. EVID. 606. Generally, the competence of a witness depends upon "a capacity to observe, to ...

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