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Ji v. Jling Inc.

United States District Court, E.D. New York

December 19, 2017

JUNJIANG JI and DECHENG LI on behalf of themselves and others similarly situated, Plaintiffs,
JLING INC. d/b/a Showa Hibachi, JANNEN OF AMERICA, INC. d/b/a Showa Hibachi, JOHN ZHONG E HU, JIA LING HU, and JIA WANG HU, Defendants.



         Presently before the Court in this wage and hour litigation, brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and New York Labor Law (“NYLL”) § 190 et seq., for overtime and minimum wage pay and related statutory violations, is Plaintiffs' motion in limine for the admission into evidence of Plaintiff Junjiang Ji's (“Ji”) deposition transcripts in lieu of live testimony at trial, or in the alternative to permit him to testify by video from an alternative location, because, since the commencement of this action, Ji has moved to China. See Docket Entries (“DE”) [69-71]. Defendants oppose the motion. See DE [72]. For the reasons set forth below, the motion is granted in part and denied in part. Ji will be permitted to testify at trial by video conference. Plaintiffs will be responsible for making all attendant arrangements so that the testimony may go forward and cover all related costs. Accordingly, the motion to submit deposition transcripts at trial in lieu of live testimony is denied as moot.

         I. Background

         The following facts are taken from various pleadings and are provided for context purposes only. Plaintiffs were employed as cooks in the kitchen of a restaurant, Showa Hibachi located in Wantagh, New York. See DE [62] (Proposed Pretrial Order). The corporate Defendants, Jling Inc. and Jannen of America, Inc., operated Showa Hibachi during the relevant time period. Id.; DE [50] (First Amended Complaint). According to Plaintiffs, the individual Defendants are principals of the corporate Defendants and are liable for all FLSA and NYLL violations. See First Amended Complaint.[1]

         II. Discussion

         A. Testimony by Deposition Transcript

         Initially Plaintiffs argue that at trial Ji's deposition transcript should be entered into evidence in lieu of his live testimony because Ji is unavailable within the meaning of Fed.R.Civ.P. 32 as he presently lives in China and is barred from returning to the United States. According to the relevant provisions of Rule 32,

[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:
(B) that the witness is more than 100 miles from the place of . . . trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition[.]

Fed. R. Civ. P. 32(a)(4). The Second Circuit has recognized that this Rule permits the use of a party's own deposition testimony as evidence reasoning that “a suitor not able to afford a New York trip should not be denied all remedy here.” Richmond v. Brooks, 227 F.2d 490, 492 (2d Cir. 1955); accord Wal-Mart Stores, Inc., 14-CV 5262, 2017 WL 1312968, at *2 (W.D. Ark. Apr. 5, 2017) (corporate party may submit deposition testimony of its president, where the witness was located more than 100 miles away in California). Applying Rule 32, courts have reached different conclusions as to whether an undocumented worker who leaves the country voluntarily, and therefore has no legal basis to return for trial, is “unavailable” sufficient to permit him to submit his deposition transcript in lieu of live testimony. Compare Garcia-Martinez v. City & County of Denver, 392 F.3d 1187, 1192 (10th Cir. 2004) (district court did not abuse its discretion by excluding a party's deposition transcript where that party claimed he was unable to appear for trial due to concerns about his arrest as a result of his immigration status), with Transcript of Trial, Yi Cao v. Atami on 2nd Avenue, Inc., 15 CV 5434 (S.D.N.Y. June 15, 2017) (denying Fed.R.Civ.P. 41 motion to dismiss concluding that where the plaintiff would be unable to attend trial in New York due to his immigration status, and where he failed to arrange to testify by video at trial, his deposition transcript could be submitted into evidence).[2]

         There are several problems with Plaintiffs' motion. Initially, Plaintiffs offer no evidence that Ji is unavailable. No deposition testimony on the topic is attached and no affidavit from Ji is submitted. The only statement that Plaintiffs provide on this subject is in their memorandum of law without citation, referring only generally to the “1996 Illegal Immigration Reform and Responsibility Act, ” which they invoke in support of their argument that Ji be permitted to testify remotely by video rather than to demonstrate that Ji is actually unavailable. See DE [71] at 2-4. The only reference to any evidence comes from Defendants who cite to the transcript of Ji's deposition, during which he stated that he never gave any thought to returning the United States and that he was only of the opinion that any attempt would be unsuccessful, indicating that he had never endeavored to obtain a temporary visa or otherwise appear lawfully at trial. See Affirmation of William Brown, DE [72-1], Ex. A.

         On this bare record, it would be difficult to determine whether Ji is actually unavailable for the purposes of Rule 32 sufficient to permit him to submit his deposition testimony at trial in lieu of his live appearance. Fortunately, and unlike the situation presented to the court in the Yi Cao case, where Plaintiffs' counsel here also represented Plaintiff there, Ji has moved in the alternative to appear at trial via video link pursuant to Fed.R.Civ.P. 43. The Court will grant that application for the reasons set forth below, thereby obviating the need to submit Ji's deposition transcript in place of his live testimony. Accordingly, Plaintiffs' motion to submit Ji's deposition transcript at trial in place of his live testimony is denied.

         B. Remote Testimony from China

         Apparently recognizing that they have not submitted anything but conclusory, and potentially insufficient, statements that Ji is unavailable for trial, Plaintiffs move in the alternative that Ji be ...

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