Lopez et al v. NTI, LLC et al, No. 8:2008cv01579 - Document 93 (D. Md. 2010)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/16/10. (sat, Chambers)
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Lopez et al v. NTI, LLC et al Doc. 93 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : VALERIO LOPEZ, et al. : v. : Civil Action No. DKC 08-1579 : NTI, LLC, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this Fair Labor Standards Act case are two motions: (1) a motion for summary judgment filed by Defendants XTEL Construction Group, LLC and Mike Bahmani (Paper 87) and (2) a motion for testimony in open court by contemporaneous Plaintiffs (Paper 70). transmission filed by The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendants’ motion for summary judgment will be denied, while Plaintiffs’ motion for testimony by contemporaneous transmission will be granted in part and denied in part. I. Background A. Factual Background According to Plaintiffs’ first amended complaint, Verizon Communications, fiber-optic Inc. service (“Verzion”) began network 2004. in construction (Paper on 15-1 a ¶ new 22). Dockets.Justia.com Verizon contracted with Defendant NTI, LLC (“NTI”) to perform work on the project, such as digging trenches and laying fiberoptic cable conduit. (Id.). NTI then contracted with several subcontractors, including Defendant XTEL Construction Group, LLC (“XTEL”), to obtain “manpower” to complete the jobs. 23). XTEL and NTI, “as employers or joint (Id. ¶ employers,” subsequently hired Plaintiffs to provide unskilled labor on the project. (Id. ¶ 24). Plaintiffs contend that they contracted with NTI and XTEL for pay on a “piece rate basis.” (Id. ¶ 34). Under the purported agreement, Plaintiffs were to be paid according to the number of feet of trenches they dug each day, multiplied by “a fixed sum ranging from $2.40 to $2.60, and . . . divided among the employees present on a given day.” (Id.). Plaintiffs allege that Defendants were supposed to pay them weekly. (Id.). Plaintiffs maintain that Defendants failed to hold up their end of the bargain. In particular, Plaintiffs aver that Defendants sometimes paid Plaintiffs for fewer feet than they actually dug and, on some weeks, neglected to pay at all. ¶ 35). menial (Id. Defendants forced Plaintiffs to perform uncompensated labor on Saturdays. (Id.). Defendants required Plaintiffs to report for work each day, but sometimes sent them home without work or compensation. 2 (Id. ¶ 36). Defendants would dock digging. week hours if (Id. ¶ 40). from Plaintiffs damaged utility while And Defendants allegedly deducted $50 per Plaintiffs’ paychecks without their exchange for housing that Defendants provided. B. pipes consent in (Id. ¶ 37). Procedural Background Plaintiffs filed their initial complaint against seven defendants on June 17, 2008 (Paper 1), with an amended complaint following on August 29, 2008 (Paper 15-1). alleged that the seven defendants failed Those complaints to pay Plaintiffs minimum wage for the hours they worked and overtime wages for hours worked in excess of 40 hours a week. recovery for breaches of their Plaintiffs sought employment contracts and violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, the Maryland Wage & Labor Law, Md. Code Ann., Lab. & Empl. §§ 3-401 Collection to Law, -431, id. §§ and 3-501 the to Maryland Wage -509. Payment Plaintiffs and later voluntarily dismissed their claims against four of the original defendants. On (Papers 13 & 82). December 9, 2008, Plaintiffs, NTI, and ten opt-in claimants not party to the lawsuit jointly moved for approval of a settlement (Paper 34). and entry Under the of a consent Decree, decree Plaintiffs (“the and Decree”). the opt-in claimants received $105,000 from NTI “in full satisfaction of 3 all claims, damages, costs and attorneys’ fees related to this Lawsuit.”1 (Paper 34-1 ¶ 3.01). The Decree also provided that the obligation to make payments under the agreement “shall apply to and be binding only upon NTI LLC and is not guaranteed or secured by any other entity or individual.” (Id. ¶ 2.05). The court issued an order approving the settlement on December 11, 2008 (Paper 35) and signed the Decree one day later (Paper 36). After five months, Plaintiffs filed an order of satisfaction noticing that Decree. NTI had satisfied its obligations under the (Paper 86). Now, only Defendants XTEL and Mike Bahmani, XTEL’s owner, remain. On April 15, 2009, the court approved the parties’ proposed discovery schedule (Paper 55), under which discovery was to close on August 17, 2009 (Paper 54). After several requested extensions from the parties over the following months, the court ordered that written discovery and depositions would be complete by November 30, 2009. filed their contemporaneous 1 motion for transmission (Paper 66). testimony on October in open 22, 2009 Plaintiffs’ court (Paper by 70), The consent decree defines “Lawsuit” as “[t]his action, Lopez, et al. v. NTI, LLC, et al., No. 8:08-cv-01579-DKC (D. Md.).” (Paper 34-1, at 3). 4 while Defendants waited until June 24, 2010 to file their motion for summary judgment (Paper 87). II. Defendants’ Motion for Summary Judgment A. Standard of Review The standards on summary judgment are familiar. A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled 56(c); to judgment Celotex Corp. as a matter v. Catrett, of law. 477 U.S. See Fed.R.Civ.P. 317, 322 Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). (1986); In other words, if there are clearly factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in inappropriate. favor of either party,” summary judgment is Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). On a motion for summary judgment, the court must construe the facts alleged in opposing the motion. the light most favorable to the party Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. of proof Celotex, 477 U.S. at 323. concerning an essential 5 “[A] complete failure element . . . necessarily renders all other facts immaterial.” Id. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. 477 U.S. at 254; Celotex, 477 U.S. at 324. See Anderson, “A mere scintilla of proof, however, will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50. (citations omitted). B. Analysis 1. Timeliness of Defendants’ Motion At the outset, Plaintiffs contend that the court should not consider months Defendants’ after motions. the motion because presumptive (Paper 90, at 7). it was deadline for filed almost summary six judgment Federal Rule of Civil Procedure Rule 56(c)(1)(A) states that, where no local rule or court order otherwise applies, “a party may move for summary judgment at any 6 time until 30 days after the close of all discovery.”2 Plaintiffs protest that Defendants filed their motion on June 24, 2010, 206 days after the deadline for written discovery and depositions. Tardy motions are not to be encouraged, but Plaintiffs have not shown, or even attempted to show, that Defendants acted in bad faith3 Plaintiffs. or that the late filing would somehow prejudice Plaintiffs concede that they have been aware of the grounds for Defendants’ arguments since November 2009. 90, at 7). (Paper See Pine Ridge Coal Co. v. Local 8377, United Mine Workers of Am., 187 F.3d 415, 419 (4th Cir. 1999) (affirming lower court’s consideration of summary judgment motion where opposing party “received ample notice of the motion”). The parties in fact addressed these very issues in the context of Plaintiffs’ motion for contemporaneous transmission, discussed below. (Paper 75, at 2-3; Paper 76, at 1-4). The court has 2 This court typically sets a dispositive motion deadline 30 days after the close of discovery. In this case, however, the schedule was proposed by the parties in their status report of April 14, 2009, and did not include a separate deadline for dispositive motions. Papers 54 and 55. 3 The circumstances suggest that Defendants acted in good faith. Defendants note that full payment of the $105,000 mandated by the Decree is the basis for their summary judgment motion. (Paper 92, at 2). Plaintiffs did not enter the order demonstrating that full payment was made until a month before Defendants filed their motion for summary judgment. (Paper 86). 7 also had motion, more than despite F.Supp.2d 406, sufficient the delay. 410 n.2 time See (D.Md. to United 1998) consider States Defendants’ v. (declining Savoy, to 38 dismiss untimely motion where court had sufficient time to consider it). In light of all these circumstances, the court will consider the merits of Defendants’ motion. See United States v. Johnson, 953 F.2d 110, 116 (4th Cir. 1991) (“Motions filed out of time are accepted at the discretion of the trial court.”); Brumback v. Callas Contractors, (entertaining Inc., untimely 913 motion F.Supp. for 929, 934 summary (D.Md. judgment 1995) because “notions of judicial economy and fairness militate against a harsh response”). 2. Merits of Defendants’ Motion Defendants’ Concededly, motion, Defendants’ straightforward chain employee-plaintiffs in of an however, motion logic. FLSA fails on its presents According action are a to merits. facially Defendants, “prohibited from entering into a settlement for less than the full amount of their wage claims.” (Paper 87-1, at 8). Here, Defendants note, there was a court-approved settlement, so Plaintiffs must have received the full value of their wage claims. (Id. at 8-9). Because NTI and Defendants were joint employers, and one joint employer can “take credit” toward 8 the wage requirements for payments made by other anything more from employers,4 Defendants. Plaintiffs (Id. at cannot 9-10). recover Although straightforward, Defendants’ logic fails because it rests on a faulty premise: the FLSA does not prohibit employee-plaintiffs from entering into a “less than full value” settlement in every situation, at least when the settlement is judicially supervised. To understand where Defendants’ argument goes awry, some history is needed. protect all oppressive Congress originally enacted the FLSA “to covered working workers hours, from substandard ‘labor conditions wages [that and are] detrimental to the maintenance of the minimum standard of living necessary workers.’” for health, efficiency and general well-being of Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a)). Under the Act, “there is a judicial prohibition against the unsupervised waiver or settlement of claims.” Taylor v. Progress Energy, Inc. (“Taylor II”), 493 F.3d 454, 460 (4th Cir. 2007) (citing D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114-16 (1946)). Courts implemented this prohibition out of concern that the “inequality of bargaining power” between employer and employee could result 4 This principle is similar to the “one satisfaction rule” often seen in cases involving joint tortfeasors. Chisholm v. UHP Projects, Inc., 205 F.3d 731, 737 (4th Cir. 2000). 9 in settlements for less than the statutory minimums. Sav. Bank v. O’Neil, 324 U.S. 697, 708 (1945). Brooklyn Allowing private settlements for less than the statutory minimums would frustrate the statute’s objectives, while allowing “settlement discounts” to evade the FLSA. at 460. employers to use Taylor II, 493 F.3d Settlement, however, is not entirely forbidden in FLSA cases; “[c]laims for FLSA violations can, of course, be settled when the settlement is supervised by the [Department of Labor] or a court.” Taylor v. Progress Energy, Inc. (“Taylor I”), 415 F.3d 364, 374 (4th Cir 2005); see also Poulin v. Gen. Dynamics Shared Res., Inc., No. 3:09-cv-00058, 2010 WL 1655962, at *2 (W.D.Va. Apr. 23, 2010) (“FLSA claims can be waived by either of the two statutory exceptions to the general rule against waiver.”). Defendants cite two cases discussing the prohibition against private settlements for the proposition that judicially supervised settlements are possible only where an employer pays all of an employee’s wage claims. (Paper 87-1, at 7-8 (citing Brooklin Sav. Bank, 324 U.S. 697; Roland Elec. Co. v. Black, 163 F.2d 417, 421 (4th Cir. 1947)). view, even element of Put differently, in Defendants’ judicially supervised compromise or dispute. settlements That can view is involve no incorrect. Courts have consistently recognized that judicially supervised 10 FLSA settlements rest on a different footing than privately orchestrated ones, such that judicially supervised settlements may resolve -- in some circumstances -- genuine disputes for less than “full value.” The settlement Supreme in the Court first FLSA considered context O’Neil, 324 U.S. 697 (1945). in Brooklyn compromise Savings Bank and v. In Brooklyn Savings, two employers attempted to pay their employees back wages in exchange for a release of the employees’ rights (such as the right to seek liquidated damages) under the Act. Id. at 700-03. There was no bona fide dispute between the parties as to liability and the waivers were obtained without court involvement. Thus, the question was whether employees could Id. at 704. independently waive their rights under the FLSA in the absence of any bona fide dispute over liability. Id. The Court concluded that they could not, as to do so would “nullify the purpose of the Act.” Id. at 707. “what The Court expressly refused, however, to decide limitations . . . the Act places on the validity of [settlement agreements] . . . if the settlement is made as the result of a bona fide dispute between the two parties, consideration of a bona fide compromise and settlement.” 714. 11 in Id. at A partial answer to the question left open in Brooklyn Savings came a year later in D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946). Schulte held that “the remedy of liquidated damages cannot be bargained away by bona fide settlements of disputes” over coverage. Id. at 114. But in dicta the Court noted that it did not decide whether a settlement was possible when there was a bona fide dispute over the degree of liability or amount. Id. And it suggested that settlements implemented through stipulated judgments presented different considerations than private agreements: Petitioner draws the inference that bona fide stipulated judgments on alleged WageHour violations for less than the amounts actually due stand in no better position than bona fide settlements. Even though stipulated judgments may be obtained, where settlements are proposed in controversies between employers and employees over violations of the Act, by the simple device of filing suits and entering agreed judgments, we think the requirement of pleading the issues and submitting the judgment to judicial scrutiny may differentiate stipulated judgments from compromises by the parties. Id. at 113 n.8. Fourth Circuit The United States Court of Appeals for the construed this dictum to imply, at the very least, “that the rule of the Schulte case would not apply to stipulated judgments.” Bracey v. Luray, 161 F.2d 128, 130 (4th Cir. 1947). 12 Perhaps because of the two critical caveats found in Schulte, later “courts of appeals dismissed the argument that [Brooklyn Savings compromises, respect to disputed.” and executed sums the Schulte] pursuant amount of somehow forbade to consent or liability voluntary judgments, for which with was United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 860 (5th Cir. 1975) (listing cases); cf. Walton v. United Consumers Club, Inc., 786 F.2d 303, 305 (7th Cir. 1986) (explaining, in context of Department of Labor supervised settlement, that “a settlement is a compromise — the employee surrenders his opportunity to get 100 cents on the dollar, in exchange for a smaller payment with certainty”). As the United States Court of Appeals for the First Circuit explained: [The Schulte dicta] indicates clearly that the Supreme Court . . . was not prepared to go so far as to close the door completely and finally on the possibility of settling genuine disputes arising under the Fair Labor Standards Act short of payment in full of minimum wages, overtime compensation and liquidated damages, thereby in effect forcing employees to take the risks however great and submit to the delays however long involved in litigating every honestly disputed question which might arise under the Act. It seems to us instead that the Supreme Court in the statement quoted above must have meant to indicate that it was disposed to permit employees, at least when acting as free agents honestly and fairly advised, and when paid minimum wages and overtime compensation in full, to settle such genuine disputes with their employers 13 . . . provided such settlement receives the judicial approval implicit in the entry of a consent judgment. Urbino v. P.R. Ry. Light & Power Co., 164 F.2d 12, 14 (1st Cir. 1947). Congress itself spoke to the issue in the Portal-to- Portal Pay Act of 1947, which provided that FLSA claims that accrued prior to 1947 “may hereafter be compromised in whole or in part, if there exists a bona fide dispute as to the amount payable by the employer to his employee.” 29 U.S.C. § 253(a). When determining whether to approve a settlement, courts typically assess the settlement for reasonableness, often using the rubric suggested in Lynn’s States, 679 F.2d 1350 (11th suggests that an FLSA Food Stores, Cir. 1982). settlement Inc. v. United Lynn’s Food Stores should be approved if the settlement “does reflect a reasonable compromise over issues, such as FLSA coverage or computation of back wages, that are actually in dispute.” Id. at 1354; see also Lomascolo v. Parsons Brinckerhoff, Inc., No. 1:08cv1210, 2009 WL 3094955, at *8 (E.D.Va. reflects a Sept. 28, reasonable 2009) (“‘If compromise the over proposed contested settlement issues,’ the settlement should be approved.”) (quoting Lynn’s Food Stores, 679 F.2d at 1354). In contrast to Defendants’ all-or-nothing approach, Lynn’s Food Stores and similar cases recognize a role for less-than-full-value compromise 14 in the FLSA settlement process. See, e.g., Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 57-58 (E.D.N.Y. 2010) (approving settlement of FLSA claims at 13-17% of maximum recovery). These compromises reflect the “many factors [that] may be in play as the parties negotiate,” including disagreements over “the number of hours worked by the plaintiff, the plaintiff’s status as an exempt employee, or the defendant’s status as a covered employer.” Bonetti v. Embarq Mgmt. Co., No. 6:07-cv-1335-Orl-31GKJ, 2009 WL 2371407, at *4 (M.D.Fla. Aug. 4, 2009). In summary, prior Supreme Court decisions, “60 years of practice, and the FLSA amendments of 1949 all lead to the conclusion that settlements of bona fide disputes over hours worked or compensation circumstances.” due are enforceable under some Hohnke v. United States, 69 Fed.Cl. 170, 175 (2005). In light of the foregoing, the court cannot say that the prior settlement covered all of Plaintiffs’ wage claims as a matter of law.5 Defendants have not cited any case, and the court has been unable to locate any case, that finds that a consent judgment against one joint employer necessarily bars any remaining claims against all other joint employers. 5 Indeed, at Defendants have not argued as a factual matter that the $105,000 paid by NTI would set-off and reduce Plaintiffs’ recovery against Defendants to nothing. 15 least one court held directly to the contrary. See Wood v. Meier, 218 F.2d 419, 420 (5th Cir. 1955) (rejecting argument that “the effect of . . . obtaining judgment against one of the joint obligors was to merge the entire cause of action into that judgment so as to bar further proceedings against [the other joint employers]”). The language decision. The of the Decree preclusive does effect of not a determined by the intent of the parties. F.2d 736, 740 (4th Cir. 1990). case is clear: alter consent the court’s judgment is Keith v. Aldridge, 900 The intent of the parties in this NTI was the only defendant party to the Decree (Paper 34-1, at 2), Plaintiffs agreed not to bring any further claims against NTI (id. ¶ 2.03), the Decree applied to and was binding upon only Plaintiffs and NTI (id. ¶ 2.05), the Decree addresses dismissal only as to NTI (id. ¶ 3.05), the Decree discharged a “final settlement of all claims” against only NTI (id. ¶ 6.01). Given all of only these NTI (id. ¶ limitations, 4.01), the and court constituted cannot agree with Defendants’ apparent reading that the Decree was meant to apply to all claims against all parties Defendants’ motion will be denied. 16 to the present dispute. III. Plaintiffs’ Motion for Testimony in Open Court by Contemporaneous Transmission Plaintiffs Plaintiffs have residing moved in for an Honduras, order permitting Tennessee, and certain Virginia to testify via “contemporaneous transmission” (Paper 70), namely videoconferencing. In support, Plaintiffs note the difficulty of securing a visa from Honduras and the substantial expense of travel. Defendants oppose, arguing that (1) the non-resident Plaintiffs need to be in the courtroom to establish their identity, (2) the use of videoconferencing would impede central credibility determinations, and (3) financial considerations weigh in favor of Defendants, not Plaintiffs. Federal Rule of Civil Procedure 43 governs the taking of testimony at trial. That rule expressly provides for the possibility of videoconference testimony, stating that “[t]he court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court location.” by contemporaneous Fed.R.Civ.P. 43(a). transmission from a different Although Rule 43 provides some flexibility in accepting remote testimony, it seems obvious that remote transmission is to be the exception and not the rule. See Fed.R.Civ. amendments (“The P. 43 advisory importance court cannot be forgotten. of committee’s presenting note live on 1996 testimony in The very ceremony of trial and the 17 presence of the factfinder may exert a powerful force for truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition.”). Courts have also recognized that, even with the benefits that technology provides, substitutes for live testimony are necessarily imperfect: Videoconference proceedings have their shortcomings. Virtual reality is rarely a substitute for actual presence and . . . even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it. The immediacy of a living person is lost with video technology. . . . Video conferencing . . . is not the same as actual presence, and it is to be expected that the ability to observe demeanor, central to the fact-finding process, may be lessened in a particular case by video conferencing. This may be particularly detrimental where it is a party to the case who is participating by video conferencing, since personal impression may be a crucial factor in persuasion. Thornton v. Snyder, 428 F.3d 690, 697 (7th Cir. 2005) (quotations and citations omitted). Despite videoconferencing’s deficiencies, courts in this circuit and elsewhere have approved or affirmed its use in the civil context. See generally Rusu v. INS, 296 F.3d 316 (4th Cir. 2002) (asylum proceeding); United States v. Baker, 45 F.3d 837 (4th Cir. 1995) (civil commitment hearing); Edwards v. Logan, 38 F.Supp.2d 463 (W.D.Va. 1999) (civil rights action); see also In 18 re Merck Prods. Liab. Litig., 439 F.Supp.2d 640, 642 (E.D.La. 2006) (listing cases). These cases reflect a “consistent sensitivity to the utility of evolving technologies that may facilitate more efficient, litigation practices.” convenient, shortcomings, alternative it methods, deposition testimony. comfortable 9A Wright & Miller, Federal Practice & Procedure § 2414 (3d ed. 2008). its and at And while videoconferencing has least such as appears the to be favorable submission of to written Sallenger v. City of Springfield, No. 03- 3093, 2008 WL 2705442, at *1 (C.D.Ill. July 9, 2008). In this case, Plaintiffs have demonstrated good cause as to those Plaintiffs residing in Honduras. The cost of international travel can provide good cause for contemporaneous transmission of testimony. See, e.g., Dagen v. CFC Grp. Holdings, No. 00 Civ. 5682, 2003 WL 22533425, at *2 (S.D.N.Y. Nov. 7, 2003). In some cases, travel cost and inconvenience have contemporaneous justified transmission even when the parties where located within the United States, in contrast to the internationally resident Honduran Plaintiffs in this case. See, e.g., Beltran-Terado v. INS, 213 F.3d 1179, 1186 (9th Cir. 2000) (affirming use of telephonic testimony for hearing in California where witness was in Missouri); Scott Timber, Inc. v. United States, No. 05-708C, 2010 WL 2947090, at *1 (Fed.Cl. July 19 28, 2010) (approving Washington, D.C., use where of videoconferencing witness was in for Oregon); trial Fed. in Trade Comm’n v. Swedish Match N. Am., Inc., 197 F.R.D. 1, 2 (D.D.C. 2000) (finding good cause for videoconferencing where witness was in Oklahoma and hearing was in Washington, D.C.). Forcing the Honduran Plaintiffs in this case to travel to the United States would impose substantial inconvenience and persons with strikingly few financial resources. cost on (Paper 76-1). When viable alternatives like videoconferencing are available, compelling individuals who make no more than $7,000 a year to travel hundreds of miles seems fundamentally unjust. And although the court sympathizes with Defendants’ claim that this litigation has already imposed substantial costs on them as well (Paper 75, at 4-5), those costs do not justify imposing needless expense on Plaintiffs. The use of videoconferencing for the Honduran Plaintiffs will not testify prejudice in examination. open Defendants. court, under Each oath, of and the witnesses will face will cross- Even if Defendants are correct that this case presents complicated issues (Paper 75, at 3), the protections of the oath and cross-examination will provide them with the tools necessary to resolve those issues. With videoconferencing, a jury will also be able to observe the witness’ demeanor and 20 evaluate his credibility in the same manner as traditional live testimony. using Indeed, one judge who presided over two hearings videoconferencing has concluded that “there is no practical difference between live testimony and contemporaneous video transmission.” Scott Timber, 2010 Swedish Match, 197 F.R.D. at 2; see also WL 2947090, at *1 (observing that videoconferencing does not have a “significantly adverse effect” on factfinder’s ability to make credibility determinations). Plaintiffs’ Plaintiffs; it motion is not requests an order limited to permitting the Honduran contemporaneous transmission of testimony for all Plaintiffs “outside a 100 mile radius of this Court.” (Paper 70-2). Although Plaintiffs have shown good cause as to the Honduran Plaintiffs, good cause has not been shown as to the remaining Plaintiffs. not address the Plaintiff residing in Plaintiffs do Richmond, Virginia anywhere in the motion papers, and the court cannot discern any reason why the Richmond Plaintiff would be unable to attend. The court is also unconvinced that the financial expense of travelling witness. from Tennessee merits videoconferencing for that Therefore, Plaintiffs’ motion will be denied as to those two witnesses. In sum, contemporaneous Plaintiffs transmission have of 21 shown the good testimony cause of for those Plaintiffs currently residing in Honduras. Marvin A. Mejia, Jesus Orellana, Victor Those Plaintiffs are Perez, Juan Pineda Gonzalez, Josue Roberto Pineda, Nery Armando Pineda, and Oscar Pineda. The Plaintiffs have not shown good cause as to any other Plaintiff. IV. Conclusion For the foregoing reasons, Defendants’ motion for summary judgment will be denied and Plaintiffs’ motion for testimony in open court by contemporaneous transmission will be granted in part and denied in part. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 22
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