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Baez v. City of Schenectady

United States District Court, N.D. New York

October 31, 2017

CHRISTIAN BAEZ, Plaintiff,
v.
CITY OF SCHENECTADY, et al., Defendants.

          THE KINDLON LAW FIRM, PLLC Attorney for Plaintiff

          CARTER, CONBOY LAW FIRM Attorney for Defendants

          GENNARO D. CALABRESE, ESQ.

          WILLIAM C. FIRTH, ESQ.

          DECISION AND ORDER

          DANIEL J. STEWART, UNITED STATES MAGISTRATE JUDGE.

         A. Background

         Plaintiff Christian Baez commenced this civil rights action on July 12, 2016, alleging an unconstitutional assault by one or more City of Schenectady police officers, while other officers allegedly failed to intervene. See Dkt. Nos. 1, Compl. & 28, Am. Compl. The Plaintiff further alleges claims of false arrest and malicious prosecution, as well as state law claims. Id. A Rule 16 Initial Pretrial Conference was held with the Court, after which the Court issued a Uniform Pretrial Scheduling Order which called for all discovery to be completed by August 1, 2017. Dkt. No. 13. As part of the discovery process, the Defendants served deposition subpoenas, signed by defense counsel, upon two nonparty witnesses, Efrain Beniquez and Tanasia Young. Dkt. Nos. 37-2 & 37-5. For Mr. Beniquez, the initial deposition was noticed for July 25, 2017, and the subpoena was personally served upon Mr. Beniquez on July 21, 2017. Dkt. No. 37-2. With regard to Ms. Young, her deposition was noticed for July 26, 2017, but an affidavit of service indicates that service of the subpoena was not successful. Dkt. No. 37-4. Mr. Beniquez then failed to appear for the July 25, 2017 deposition. Dkt. No. 37-1, Aff. of William C. Firth, Esq., dated Sept. 20, 2017, at ¶ 5.

         New subpoenas were then issued by Defendants for depositions of these two witnesses to occur on August 29, 2017. Dkt. Nos. 37-3 & 37-5. The subpoena was once again served upon Mr. Beniquez personally. Dkt. No. 37-3. The subpoena was served upon Ms. Young by delivering it to her usual place of abode, and by providing a copy to a co-occupant (her cousin), as well as mailing a second copy of the subpoena to her at that address. Dkt. No. 37-5. Once again counsel for the parties appeared at the time and place noticed for the deposition, and once again both witnesses failed to attend. Firth Aff. at ¶¶ 7 & 11. Counsel for both Plaintiff and Defendants were not noticed of any issues regarding the deposition, nor was a motion to quash made. Id.

         On September 20, 2017, Defendants' counsel requested the Court issue an Order to Show Cause regarding the two witnesses' alleged failure to comply with the deposition subpoena. Dkt. No. 37. That Order to Show Cause was signed by the Court on September 25, 2017. Dkt. No 39. The Order to Show Cause had a return date of October 30, 2017, at 10:00 a.m., at the James T. Foley Courthouse in Albany, New York. Id. Again, counsel for the parties appeared, but the two witnesses did not. Service of the Order to Show Cause was effectuated through nail-and-mail service. Dkt. Nos. 40 & 41.

         B. Relevance and Service

         The Court concludes that the information sought to be obtained from the witnesses through the deposition process is relevant and material to the allegations and claims at issue in this case. At the most recent Court hearing, defense counsel proffered that the Plaintiff had maintained in his deposition that both Mr. Beniquez and Ms. Young were witnesses to the alleged assault. It was further said that the versions of events laid out by the Plaintiff and the Defendants is wholly contradictory, thus elevating the importance of any non-party witness testimony. Because the issue of what exactly happened at this time and place is both in significant dispute, and central to the case, I find that the information sought easily satisfies the standard of proportional relevance.

         The Court has also reviewed the affidavits of service submitted by Defendants' counsel and concludes that proper service was made on witness Beniquez for both deposition notices as well as the Order to Show Cause, and on witness Young for the second deposition notice and the Order to Show Cause. Witness fees were tendered, and the location of the deposotion was in all respects proper. Thus, the preliminary requirements of Rule 45 have been satisfied.

         C. Contempt

         “A non-party witness who has disobeyed a court order may be held in civil contempt if the movant shows that ‘(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner.'” NXIVM Corp. v. Bouchey, 2011 WL 5080322, at *4 (N.D.N.Y. Oct. 24, 2011) (quoting Paramedics ElectromedicinaComercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004)). The authority in the Federal Rules of ...


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