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Kirby v. J.C. Penney Corporation

October 29, 2009

MARY KATHLEEN KIRBY, PLAINTIFF,
v.
J.C. PENNEY CORPORATION, INC., DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court is DEFENDANT'S MOTION IN LIMINE TO PRECLUDE USE OF DEPOSITION EXCERPTS OF GERALDINE GARDNER AS TRIAL TESTIMONY BY THE PLAINTIFF, filed at docket entry number 49 (Doc. # 49), and PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION IN LIMINE TO PRECLUDE USE OF DEPOSITION EXCERPTS OF GERALDINE GARDNER AS TRIAL TESTIMONY BY THE PLAINTIFF, filed at Doc. # 51. The motion is ripe for disposition.

At the outset, the Court will address the timing of Defendant's motion. This Court issued its Trial Scheduling Order on August 4, 2009, which set out, among other things, the pretrial procedures to be followed by the parties. Doc. # 25. The Order required the parties to file motions in limine on or before October 13, 2009. The parties were further ordered to submit their respective designation of deposition excerpts to be offered at trial on October 19, 2009, which both did on that date. See Doc. ## 36 & 42. Defendant's motion pending before the Court was filed on October 23, 2009. Plaintiff argues that the motion should be denied based upon the fact that motions in limine were due on October 13, 2009, and Defendant's motion was not filed until ten days after that deadline. The Court does not consider Defendant's motion to be late in light of the fact that the parties were not required to designate deposition excerpts to be offered at trial until after the deadline for the motions in limine, and therefore, the Court will consider it.

I. STATEMENT OF THE CASE

The following background is drawn from the pleadings in the matter sub judice. Plaintiff brings the present action claiming discrimination due to her race when she was terminated by Defendant from her position as a Custom Decorator on or about May 10, 2007. See, generally, Amended Complaint, Doc. # 14. Plaintiff, along with co-worker Geraldine Gardner, were terminated due to "disruptive behavior", namely and argument that occurred on the premises while both were at work on May 7, 2007. Id.; see also, Doc. # 21. Plaintiff is Caucasian while Ms. Gardner is African-American. Doc. # 14, Amended Complaint.

As noted above, on October 19, 2008, Plaintiff filed her Designation of Discovery Excerpts to be Offered at Trial, Doc. # 36, designating several pages of transcript from the deposition of Geraldine Gardner, a non-party to this lawsuit. On October 20, 2009, Plaintiff filed a Supplemental Designation of Discovery Excerpts to be Offered at Trial, Doc. # 46, once again identifying additional pages from the transcript of the discovery deposition of Gardner for use at trial. Defendant objects to the use of these deposition excerpts arguing hat Plaintiff has failed to satisfy the requirements of Federal Rule of Civil Procedure 32 in order to use the deposition testimony at trial. Doc. # 49. In response, Plaintiff notes that the deposition of Gardner was videotaped, which affords the jury the opportunity to observe Gardner's demeanor and voice in order to evaluate her credibility. Doc. # 51.

II. ANALYSIS

A witness's testimony at trial must be taken in open court unless a federal statute, the Federal Rules of Evidence, the Federal Rules of Civil Procedure, or other rules adopted by the Supreme Court provide otherwise. Fed.R.Civ.P. 43. The preference for live testimony at trial rather than deposition testimony as a substitute is uniformly stressed in case law. In those cases where a deposition may be used in court proceedings, Fed.R.Civ.P 32 provides in relevant part:

Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:

(A) that the witness is dead:

(B) that the witness is more than 100 miles from the place of the hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition;

(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;

(D) that the party offering the deposition could not procure the witness's attendance by subpoena; or

(E) on motion and notice, that exceptional circumstances make it desirable - in the interests with justice and with due regard to the importance of live testimony in open ...


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