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Barth v. City of Peabody

United States District Court, D. Massachusetts

June 19, 2019

JOHN BARTH, Plaintiff,
v.
CITY OF PEABODY, RK REALTY TRUST, and RICHARD DIPIETRO, Defendants.

          MEMORANDUM AND ORDER RE: RENEWED MOTION TO DISMISS AND FOR SANCTIONS (DOCKET ENTRY # 73)

          MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE

         On July 12, 2017 and March 30, 2018, this court issued rulings, respectively, on a June 8, 2017 motion to dismiss or to compel a deposition of plaintiff John Barth (“plaintiff”) filed by defendants City of Peabody, RK Realty Trust, and Richard DiPietro (“defendants”) (Docket Entry # 56) and a second motion to dismiss based on an attempt to conduct a further deposition of plaintiff also filed by defendant City of Peabody (“defendant”) (Docket Entry # 73). Each motion to dismiss additionally sought monetary sanctions. (Docket Entry # 56, ¶ 16) (Docket Entry # 73, p. 2, ¶ 1). This court denied the portion of each motion that sought to dismiss this action. In addition and as to the first motion (Docket Entry # 56), on July 12, 2017, this court allowed the motion to compel and denied without prejudice the portion of the motion “seeking monetary sanctions for the stenographer's fee and legal fees” associated with plaintiff's June 6, 2017 deposition to be “renewed at the conclusion of the case.” As to the second motion (Docket Entry # 73), this court similarly stated that defendant “may renew the portion of the motion that seeks the lesser sanction of having plaintiff pay the costs associated with the August 2, 2017 deposition at the conclusion of this case” as well as the “request for costs associated with the June 6, 2017 deposition.” (March 30, 2018 Order). On June 5, 2019, immediately after the jury returned a verdict in defendant's favor, defendant's counsel renewed the motion seeking monetary sanctions for plaintiff's June 6 and August 2, 2017 depositions. (Docket Entry # 141). Whereas defendant's counsel did not identify which “motion” he renewed, this court interprets the statement as renewing the most recent motion (Docket Entry # 73), which seeks costs for both the June 2 and the August 6, 2017 depositions.

         BACKGROUND[1]

         On June 6, 2017 plaintiff appeared for the first, noticed deposition at the offices of defendant's counsel.[2] (Docket Entry # 73, ¶ 1). In a waiting area shortly before the deposition began, defendant's counsel objected to “[p]laintiff personally recording the deposition.” (Docket Entry # 56, ¶ 13). Up until that point, there is no indication that plaintiff gave defendant prior notice of plaintiff's decision to record the deposition by an audio recorder. The deposition nevertheless commenced and plaintiff proceeded to answer a number of questions.

         When the subject turned to a plot plan by surveyor Christopher Mello (“Mello”) that plaintiff submitted with alterations to the Peabody Zoning Board of Appeals (“ZBA”), plaintiff objected to the questions. (Docket Entry # 56, ¶¶ 6-7). Having “answered a number of questions concerning surveyors and the preparation of drawings, ” plaintiff viewed the questions as unnecessary and/or immaterial. (Docket Entry # 55, p. 7) (Docket Entry # 59, p. 2).[3] Plaintiff then informed defendant's counsel “that he [defendant's counsel] would be allowed two more immaterial questions, after which Plaintiff ended the deposition . . ..” (Docket Entry # 61, p. 2) (Docket Entry # 56, ¶ 11). As plaintiff left the deposition, he admonished defendant's counsel that “any significant discrepancy between the [stenographic] transcript and his own audio recording of the deposition would be taken as perjury.” (Docket Entry # 59, p. 2).

         On June 8, 2017, plaintiff filed a motion to terminate the deposition on the basis that defendant conducted the deposition “in bad faith with intent to annoy and oppress” plaintiff under Fed.R.Civ.P. 30(d)(3) (“Rule 30(d)”). (Docket Entry # 55, p. 3). On the same day, defendant filed the motion to dismiss or to compel the deposition as well as for “costs, ” specifically, “stenographer and legal fees.” (Docket Entry # 56, ¶ 16). On June 26, 2017, plaintiff filed an affidavit disavowing the deposition transcript as an “attempt[] to create a false narrative of the drawings submitted by Plaintiff” to the ZBA for a variance.[4] (Docket Entry # 61, p. 1)

         As an aside, by letter dated June 9, 2017, the stenographer notified plaintiff that, in light of his reservation of the right to read and sign the transcript, the “transcript is complete and available.” (Docket Entry # 59, p. 5). She also advised plaintiff that he could purchase a copy of the transcript. (Docket Entry # 59, p. 5). The stenographer ended the letter by stating that if plaintiff did not exercise his right to review the transcript, the “transcript will be deemed signed.”[5] (Docket Entry # 59, p. 5). In a June 22, 2017 reply letter, plaintiff quoted Fed.R.Civ.P. 30(e) and LR. 116.4 and then informed the stenographer that she would “need to send a digital copy of the transcript to [plaintiff] via email to meet the requirements of the Rules.” (Docket Entry # 61, p. 5). Noting that the stenographer “demanded about $100 to send” the transcript, plaintiff attests that the transcript could be “emailed without cost . . ..”[6] (Docket Entry # 61, p. 2).

         On July 12, 2017, this court conducted a hearing, denied the portion of defendant's motion seeking dismissal, allowed the portion seeking to compel plaintiff to attend and participate in his deposition, and denied without prejudice the monetary sanctions for stenographer and legal fees. (Docket Entry ## 56, 63) (July 12, 2017 Order). As stated in open court, this court ordered a one-day deposition of plaintiff conducted from “10[:00 a.m.] ¶ 4[:00 p.m.] with a one-hour break for lunch.” (Docket Entry # 63). This court also advised the parties that they could conduct the deposition at the courthouse in the event the deposition needed supervision.[7]

         By subpoena, defendant's counsel noticed the second deposition for August 2, 2017 “at his office.” (Docket Entry # 69, p. 1). Defendant engaged a stenographer and plaintiff appeared at the designated location. The deposition did not go forward. Rather, a dispute arose on the basis of plaintiff's expressed intention to audio record the deposition. Defendant's counsel initially informed plaintiff that the deposition would not occur if plaintiff recorded it (Docket Entry # 74, p. 2) (“‘All right, there will be no deposition'”), at which point plaintiff addressed defendant's counsel as “‘Mr. Perjury.'” (Docket Entry # 74, p. 2).[8] When defendant's counsel stated thereafter that, “‘We're doing a deposition. You're not allowed to record it, '” plaintiff replied, “‘I can do whatever I want, '” and in response to defendant's counsel's statement that plaintiff could “tell the judge that, then, OK?, '” plaintiff replied, “‘Very well, Mr. Perjurer.'” (Docket Entry # 74, p. 3). A short time later, the following exchange took place in which plaintiff repeats the assertion of perjury and calls defendant's counsel a “‘worthless punk.'” (Docket Entry # 74, p. 3).

[Plaintiff]: “Not only that, you are going to be named as a defendant for Perjury, because I can already prove it. I can prove that you perjured yourself and committed fraud in state proceedings. I can prove that you're attempting to produce a false narrative, a false document.”
[Defendant's Counsel]: “Do you want me to call the police?”
[Plaintiff]: “You worthless punk.”
[Defendant's Counsel]: “‘Yeah? There'll be an incident report about this, Mr. Barth.'”

(Docket Entry # 74, p. 3). Barth thereafter left the office and did not take part in the deposition. (Docket Entry # 74, p. 3). Shortly after he left, a Peabody police officer was dispatched to defendant counsel's office. After interviewing defendant's counsel and three witnesses, the police officer prepared a police report reflecting a misdemeanor assault.[9] (Docket Entry # 73-1).

         A few days later, plaintiff filed a motion to terminate the August 2, 2017 deposition. (Docket Entry # 69). Defendant opposed the motion (Docket Entry # 72) and filed the second motion to dismiss and for monetary sanctions. (Docket Entry # 73). Plaintiff opposed the motion to dismiss (Docket Entry # 75) and submitted the aforementioned affidavit that includes his excerpts of his transcript of the interactions. (Docket Entry # 74). On March 30, 2018, this court deemed the motion to terminate (Docket Entry # 69) moot and denied the motion to dismiss (Docket Entry # 73). With respect to the request for costs associated with both depositions in this latter motion, this court afforded defendant the opportunity to “renew the portion of the motion that seeks the lesser sanction of having plaintiff pay the costs associated with the August 2, ...


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