United States District Court, N.D. New York
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
J. STEWART, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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 &
Relevance and Service
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.
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.
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 ...