New England Bank v. Richard A. Green, Sr. et al. (2011)

RULING ON PLAINTIFF'S MOTION TO COMPEL DEPOSITION (# 107)

The plaintiff moves to compel defendants, Richard A. Green, Sr., and Stephen E. Green, Jr., (“the defendants”) to attend a deposition.   If either defendant fails to attend the deposition, the plaintiff asks the court to issue a capias for the arrest of the nonappearing party.   The motion to compel is granted.

FACTUAL BACKGROUND

The plaintiff initiated this action on August 12, 2010, seeking a prejudgment remedy against the defendants up to the value of $750,000.   The plaintiff asserts that in 2004 the defendants agreed to be responsible for a May 24, 2004, loan made to an entity known as “ERA II.” The original amount of the loan is alleged to have been $736,000.   The plaintiff claims that the loan is in default with a principal balance, as of June 21, 2010, in the amount of $531,799.95 and accrues interest at the rate of $75.88 per day.   The defendants did not appear in this action and were defaulted on September 16, 2004.

The plaintiff attempted to depose Richard A. Green, Sr., pursuant to a notice of deposition and subpoena duces tecum that a marshal served on Richard A. Green, Sr., on September 22, 2010.   The deposition was originally scheduled to take place on October 6, 2010, but was rescheduled to October 7, 2010.   The plaintiff's counsel notified Richard A. Green, Sr., of the rescheduled deposition by letter, but Richard A. Green Sr., did not appear for the deposition on either October 6, 2010, or October 7, 2010.   The plaintiff similarly attempted to depose Stephen E. Green, Jr., on the same dates that Richard A. Green, Sr. was to be deposed.   The plaintiff was unable to make personal service on Stephen E. Green, Jr. but did provide him with notice of the deposition together with a designation of documents to be produced at the deposition.

The plaintiff asserts that neither of the defendants contacted plaintiff's counsel indicating, for any reason, that they could not attend the deposition.   The plaintiff attached a copy of the notice of deposition for each defendant, and a copy of the marshal's return of service regarding Richard A. Green, Sr., to his motion to compel.

The plaintiff wishes to depose the defendants regarding the whereabouts and/or the disposition of heavy equipment that was allegedly purchased with the loan proceeds that are the subject of this action.   The plaintiff asks this court to order the defendants to appear and be deposed and to produce the documentation that was already served upon them.   If either defendant fails to appear for such a deposition, the plaintiff seeks a capias for the arrest of the nonappearmg defendant.

DISCUSSION

The Practice Book provides that “at any time after the commencement of the action or proceeding ․ [a party may] take the testimony of any person, including a party, by deposition upon oral examination.   The attendance of witnesses may be compelled by subpoena as provided in Section 13-28.”   Practice Book § 13-26.  Practice Book § 13-28(b) provides that a judge “may issue a subpoena, upon request, for the appearance of any witness before an officer authorized to administer oaths within this state to give testimony at a deposition subject to the provisions of Sections 13-2 through 13-5, if the party seeking to take such person's deposition has complied with the provisions of Section 13-26 and 13-27.”  Practice Book § 13-27(a) provides that “[a] party who desires to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action.   Such notice ․ shall be served upon each party or each party's attorney in accordance with Sections 10-12 through 10-17.   The notice shall state the time and place for taking the deposition, the name and address of each person to be examined ․ If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.”   General Statutes § 52-143(a) provides:  “[s]ubpoenas for witnesses shall be signed by the clerk of the court or a commissioner of the Superior Court and shall be served by an officer, [or] indifferent person ․ The subpoena shall be served not less than eighteen hours prior to the time designated for the person to appear, unless the court orders otherwise.”

The court finds that the plaintiff complied with all applicable provisions of the Practice Book and General Statutes § 52-143(a).   There is nothing in the record, to date, that justifies the defendants' failure to appear for their depositions.   The court finds that the plaintiff has properly filed its motion to compel.   A motion to compel is governed by Practice Book § 13-14 which provides in relevant part:  “(a) If any party ․ has failed to appear and testify at a deposition duly noticed pursuant to this chapter ․ the judicial authority may, on motion, make such order as the ends of justice require. (b) Such orders may include the following ․ (2) The award to the discovering party of the costs of the motion, including a reasonable attorneys fee ․” “The granting or denial of a discovery request rests in the sound discretion of the court.”  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983).

The defendants were each properly summoned to appear at a deposition.  “In our statutes, the verb ‘summon’ does not mean to ask or request to attend or appear, but to command to attend or appear, usually at a legislative or judicial proceeding.   More than a hundred years ago, our Supreme Court recognized the duty of citizens to testify ‘when legally required to do so.’   In re Clayton, 59 Conn. 510, 521, 21 A. 1005 (1890).   The procedure for ‘summoning’ a witness is usually to serve him with a subpoena or a capias.”   Andover Lake Management v. Andover, Superior Court, judicial district of Tolland, Docket No. 50306 (October 17, 1995, Rubinow, J.).

General Statutes § 52-143(e) provides in relevant part:  “if any ․ person upon whom a subpoena is served to appear and testify in a cause pending before any court and to whom one day's attendance and fees for traveling court have been tendered, fails to appear and testify, without reasonable excuse, he shall be fined not more than twenty-five dollars and pay all damages to the party aggrieved;  and the court or judge, on proof of the service of a subpoena containing the statement as provided in subsection (d), or on proof of the service of a subpoena and the tender of such fees, may issue a capias directed to some proper officer to arrest the witness and bring him before the court to testify.”   The “issuance of a capias is in the discretion of the court ․ [which] has the authority to decline to issue a capias when the circumstances do not justify or require it.”  (Internal quotation marks omitted.)  Housing Authority v. DeRoche, 112 Conn.App. 355, 372-73, 962 A.2d 904 (2009).

The plaintiff has met all requirements precedent to the issuance of a capias.   Indeed, the plaintiff produced a letter, allegedly signed by both defendants, in which they appear to claim that they are not subject to the jurisdiction of this court.¹  Under these circumstances, there is a substantial basis for the issuance of a capias for each of the defendants.   Nonetheless, the court will not, at this stage, exercise its discretion to issue a capias.

The court orders Richard A. Green, Sr., 63 Eagle Ridge, Torrington, CT 06790, to appear for a deposition to be held at the Litchfield Courthouse, 15 West Street, Litchfield, Connecticut, on the 17th day of March 2011, at 11:00 am.   The plaintiff will arrange for the service of this order by an officer or indifferent person, together with the designation of materials to be produced by Richard A. Green, Sr. If service cannot be effected, the plaintiff will notify the deponent of the scheduled deposition by regular mail, postage prepaid, and by certified mail.

Following the plaintiff's deposition of Richard A. Green, Sr., on the date and at the time set forth herein, the court will make itself available to the plaintiff to consider any appropriate claims for costs and attorneys fees associated with the originally scheduled deposition and this motion.   If Richard A. Green, Sr., fails to appear on the date and at the time set forth herein, or fails to produce the designated materials, or fails to respond to the deposition questions in good faith, the court will make itself available to hear the plaintiff's request for the issuance of a capias or any other appropriate order.

The court also orders Stephen E. Green, Jr., 24 Camp Dutton Road, Litchfield, CT 06759, to appear for a deposition to be held at the Litchfield Courthouse, 15 West Street, Litchfield, Connecticut, on the 17th day of March 2011, at 12:00 pm.   The plaintiff will arrange for the service of this order by an officer or indifferent person, together with the designation of materials to be produced by Stephen E. Green, Jr. If service cannot be affected, the plaintiff will notify the deponent of the scheduled deposition by regular mail, postage prepaid, and by certified mail.

Following the plaintiff's deposition of Stephen E. Green, Jr., on the date and at the time set forth herein, the court will make itself available to the plaintiff to consider any appropriate claims for costs and attorneys fees associated with the originally scheduled deposition and this motion.   If Stephen E. Green, Jr., fails to appear on the date and at the time set forth herein, fails to produce the designated materials, or fails to respond to the deposition questions in good faith, the court will make itself available to hear the plaintiff's request for the issuance of a capias or any other appropriate order.

So ordered.

BY THE COURT

John A. Danaher III, J.

FOOTNOTES

FN1. The letter states, in relevant part, “The court's alleged notices and claims don't cut it.”   The defendants also express their view that “properly executed process service is not merely the delivery of papers-it requires that they be accepted ․” The latter assertion is, of course, incorrect.   Phoenix Limousine Service, Inc. v. Hilchen, Superior Court, judicial district of Fairfield, Docket No. CV 000378706 (June 13, 2001, Skolnick, J.) (“Service of a subpoena ‘upon’ a person does not require physical acceptance of it, if the person is given notice of it and its contents”)..  FN1. The letter states, in relevant part, “The court's alleged notices and claims don't cut it.”   The defendants also express their view that “properly executed process service is not merely the delivery of papers-it requires that they be accepted ․” The latter assertion is, of course, incorrect.   Phoenix Limousine Service, Inc. v. Hilchen, Superior Court, judicial district of Fairfield, Docket No. CV 000378706 (June 13, 2001, Skolnick, J.) (“Service of a subpoena ‘upon’ a person does not require physical acceptance of it, if the person is given notice of it and its contents”).

Danaher, John A., J.