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D.N. CV 16 6021915 SUPERIOR COURT
ROBERT SATAWHITE J. D. OF ANSONIA/MILFORD
V. AT MILFORD
JERALD BARBER and
WILLIAMS AND BARBER January 24, 2019
MOTION FOR ORDER OF COMPLIANCE AND FURTHER SANCTIONS
Pursuant to Practice Book Section 13-14, the Defendants respectfully moves for an Order
to compel the specific discovery described below, and for further sanctions, against Plaintiff. In
support of this motion, the undersigned respectfully represents:
THE DEPOSITION DISPUTE
1 On September 24, 2018, the Court (Stevens, J) issued the following order, which stated in
pertinent parts:
RULING RE: ORDER TO SHOW CAUSE, SANCTIONS, AND REVISED
SCHEDULING ORDER
Although the plaintiff's counsel failed to attend the September 4, 2018 pretrial and has
not diligently prosecuted the case consistent with the court's scheduling orders (as
established at the September 24 short calendar hearing), the court still finds a dismissal
of this case disproportionate to these problems, and will impose alternate sanctions
denying the pending summary judgment motion and requiring the plaintiff to pay the
costs associated with any deposition of the plaintiff's experts. (emphasis added) Order
attached hereto as Exhibit A.
ORAL ARGUMENT REQUESTED
TESTIMONY NOT REQUIRED
Page 1 of 6
2 The September 24, 2018 order further ruled:
The court, therefore, issues the revised scheduling order. Failure to comply with this
order may result in sanction, which may include fine, exclusion of evidence at trial,
dismissal, default or non-suit....
4. The defendant shall complete any depositions of plaintiff's expert by November 9,
2018. The deposition shall not exceed four hours, and all costs of this deposition,
including the expert's fee for the deposition, shall be borne and paid for by the plaintiff...
8. All depositions, all discovery and all issues regarding discovery shall be completed by
February 1, 2019.
3. On October 29, 2018, Defendants duly noticed the deposition of plaintiff's expert Joshua
Goodbaum for November 7, 2018.
4 On November 3, 2018, counsel for the plaintiff notified the undersigned "are you aware
that Practice Book Section 13-4 requires you to pay the expert fee associated with the deposition
of Mr. Goodbaum?"
5 The deposition did not take place prior to the court's revised scheduling order deadline of
November 9, 2018 on account of plaintiff's counsel insistance that defense counsel prepay the
deposition costs.
5 On January 10, 2019, counsel for the plaintiff notified the undersigned "I am offering you
the week of January 28th for depositions.... The expert will require payment in advance if you
wish to depose him."
Page 2 of 6
6 On January 22, 2019, the undersigned telephoned Attorney Kryzanski in an effort to
resolve the matter concerning the expert's deposition. Attorney Kryzanski notified the
undersigned that the expert's fees were $350.00 per hour and as such, to schedule and complete a
four hour deposition, prepayment of $1,400.00 by the undersigned was required.
7 Accordingly, defendants are seeking judicial assistance, in a way that provides
meaningful sanctions for the plaintiff's blatent disregard of the court orders concerning payment
of the deposition costs.
THE DISCOVERY DISPUTE
8 On January 11, 2019, the undersigned filed Motions 123 and 124, Motion for Permission
to File Summary Judgment-Case Assigned for Trial and Motion for Summary Judgment, with
accompanying brief in support.
9 On January 23, 2019, Attorney Kryzanski, as counsel for plaintiff, filed Motions 126 and
127, Objection to Motion and Memorandum in Opposition to Motion.
10. On page five of plaintiff's Motion, plaintiff argues, inter alia,
" Recently, in anticipation of filing a Plaintiff's Second Motion for Summary Judgment,
Attorney Goodbaum provided and affidavit dated January 17, 2019 providing opinion as
to a result in Satawhite v. City of Bridgeport (Exhibit F). In addition, Plaintiff intends
to file a second Motion for Summary Judgment including Attorney Goodbaum's second
affidavit when permission for leave is granted by the court."
Page 3 of 6
11 Connecticut Practice Book, Section 13-4. Experts, provides the following:
(g) Unless otherwise ordered by the judicial authority, or otherwise
agreed by the parties,
the following schedule shall govern the expert discovery required under subsecti
ons (b),
(c), (d) and(e) of this section. (1) Within 120 days after the return date of any
civil action,
or at such other time as the parties may agree or as the court may order, the parties
shall submit to the court for its approval a proposed Schedule for Expert Discover
y,
which, upon approval by the court, shall govern the timing of expert discovery in the
case. This schedule shall be submitted on a “Schedule for Expert Discovery” form
prescribed by the Office of the ChiefCourt Administrator. The deadlines proposed by the
parties shall be realistic and reasonable, taking into account the nature and relative
complexity of the case, the need for predicate discovery and the estimated time until the
case may be exposed for trial.
A party who wishes to modify the approved Schedule for Expert Discovery or other time
limitation under this section without agreement of the parties may file a motion for
modification with the court stating the reasons therefor. Said motion shall be granted if:
(A) the requested modification will not cause undue prejudice to any other party; (B) the
requested modification will not cause undue interference with the trial schedule in the
case; and (C) the need for the requested modification was not caused by bad faith delay
of disclosure by the party seeking modification. (h) A judicial authority may, after a
hearing, impose sanctions on a party for failure to comply with the requi(rements of this
section. An order precluding the testimony of an expert witness may be entered only
upon a finding that: (1) the sanction of preclusion, including any consequence thereof on
the sanctioned party’s ability to prosecute or to defend the case, is proportional to the
noncompliance at issue, and (2) the noncompliance at issue cannot adequately be
addressed by a less severe sanction or combination of sanctions.
Page 4 of 6
12. This matter is on the trial list, with jury selection schedu
led to begin on May 7, 2019.
13. The Plaintiff has not filed a request for modification to permit this
"second affidavit and/
or expert opinion" from Mr. Goodbaum and has no good faith reason
to justify or excuse the
delay.
14. It is important to note that this matter was previously stricken from
the trial list on
September 4, 2018, when jury selection was scheduled to begin on
September 18, 2018, on
account of Attorney Kryzanski's failure to attend the pretrial conference and
failure to diligently
prosecute the case consistent with the court's previous scheduling order.
15. Allowance of this late disclosure of expeert affidavit/opinion would result
in extreme
undue prejudice to the defendant and result in yet another delay of the trial schedule
.
16. Filed along with this instant motion is Defendant's Request For Adjudication of Discover
y
or Deposition Dispute Under Statewide Standing Order, as this motion is filed
within six months
of the trial date.
WHEREFORE, Defendants respectfully moves the Court for an Order:
l An entry of nonsuit or dismissal;
2 An award of the costs of the motion, including a reasonable attorney
fee;
3 An order precluding the Plaintiff who failed to comply with the discovery
order from introducing certain matters into evidence;
4. An order prohibiting the Plaintiff from introducing into evidence any additional expert
affidavit or opinion beyond the scope of the initial expert disclosure dated May, 2018.
5. Awarding Defendants such other further relief as the Court deems just and proper.
Page 5 of 6
THE DEFENDANTS
/ —
Jerald Barber
/Nilliams and Barber
“ 85 Mumford Road
New Haven, Connecticut 06515
(203)787-2236
Juris No. 408909
jeraldbarberlaw@comcast.net
CERTIFICATION
Thereby certify that a copy of the foregoing was delivered via u.s. mail and electronic delivery
on the above date to:
Daniel Kryzanski, Esq.
Law Offices of Daniel Kryzanski
30 Ferry Blvd., #2
Stratford, CT 06615
— We
Jetald Bar
f
Page 6 of 6
ORDER 410631
DOCKET NO: AANCV166021915S SUPERIOR COURT
SATAWHITE, ROBERT JUDICIAL DISTRICT OF ANSONIA/
Vv MILFORD
BARBER, JERALD Et Al AT MILFORD
9/24/2018
ORDER
ORDER REGARDING:
09/04/2018 117.00 ORDER
The foregoing, having been considered by the Court, is hereby:
ORDER:
RULING RE: ORDER TO SHOW CAUSE, SANCTIONS, AND REVISED
SCHEDULING ORDER
Although the plaintiff's counsel failed to attend the September 4, 2018 pretrial and has not diligently
prosecuted the case consistent with the court's scheduling orders (as established at the September 24,
short calendar hearing), the court still finds a dismissal of this case disproportionate to these problems,
and will impose alternate sanctions denying the pending summary judgment motion and requiring the
plaintiff to pay the costs associated with any deposition of the plaintiff's experts.
The court, therefore, issues the revised scheduling order. Failure to comply with this order may result in
sanction, which may include fine, exclusion of evidence at trial, dismissal, default or non-suit.
1. No further interrogatories or requests for production may be served absent leave of court.
2. Depositions of parties and fact witnesses shall be completed by February 1, 2019.
3. The plaintiff is precluded from disclosing any further expert witnesses other then Joshua Goodbaum
who has been disclosed.
4. The defendant shall complete any depositions of plaintiff's expert by November 9, 2018. The
deposition shall not exceed four hours, and all costs of this deposition, including the expert’s fee for the
deposition, shall be borne and paid for by the plaintiff.
5. The defendant shall disclose expert witnesses by December 21, 2018. Absent leave of court, no
experts may be disclosed by the defendant after this date.
7. The plaintiff shall complete any depositions of defendant’s experts by February 1, 2019.
8. All depositions, all discovery and all issues regarding discovery shall be completed by February 1,
2019,
If the parties are unable to agree on deposition dates, the party seeking the deposition shall file a timely
motion for the court to address the dispute before the applicable deposition deadline date.
9. No motions for summary judgment shall be filed absent leave of court. See Practice Book § 17-44.
10. Caseflow is directed to schedule a final judicial settlement conference and the commencement of
AANCV166021915S 9/24/2018 Page | of 2
trial for dates after March 1, 2019. Any part, fy May request an
earlier judicial pretrial through the clerk's
office by filing a Caseflow Request Form.
This Scheduling Order Can Be Modified Only Upon Motion
and Order of the Court. Absent
Modification of this Scheduling Order, A ny Disclosure
s Not Made or Discovery Not Completed Within
the Times Specified May Be Deemed Waived and Abandoned.
Th us the Parties Are Required to Bring
Any Problems with the Scheduling or the Completion of Discov
e: ry to the Court’s Attent tion Promptly
Through Appropriate Motion or Conference Re quest. Motions
for Modifi
Granted, Except That Motions to Continue a Trial Date Must Be Suppo cation Shall B ‘e Liberally
rted by Good C: ‘ause Because
Any Rescheduled Date May Substantially Di elay the Trial.
The Parties Shall Make Good Faith Efforts to Resolve Discover 'y Disputes
Before Filing Any Motions
or Objections Regarding Same. No Objections Regarding Interr ‘ogatories
or Requests for Production
Shall Be Placed on the Short Calendar List Unless an Affidavit Is Filed Certify
Efforts Have Been Made to Resolve the Dispute in Accordance with Practic ing That Bona Fide
e Book § 13-8 (B) and §
13-10 (C).
The Parties Are Ordered to Resolve All Discove: ty Disputes Through Motions
or Objections Available
under Chapter 13 of the Practice Book Before t he Date for Completion
of Discovery. Motions in
Limine* and Motions to Preclude Filed at the Ti ime of Trial May Not Be Enterta
ined by the Court When
Directed at Discovery Issues That Could Have Been Addressed and Resolved
Through Pre-trial
Remedies Available under Chapter 13 of the P ractice Book.M
410631
Judge: BARRY STEVENS
AANCV166021915S 9/24/2018 Page 2 of 2
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D.N. CV 16 6021915 SUPERIOR COURT ROBERT SATAWHITE J. D. OF ANSONIA/MILFORD V. AT MILFORD JERALD BARBER and WILLIAMS AND BARBER January 24, 2019 MOTION FOR ORDER OF COMPLIANCE AND FURTHER SANCTIONS Pursuant to Practice Book Section 13-14, the Defendants respectfully moves for an Order to compel the specific discovery described below, and for further sanctions, against Plaintiff. In support of this motion, the undersigned respectfully represents: THE DEPOSITION DISPUTE 1 On September 24, 2018, the Court (Stevens, J) issued the following order, which stated in pertinent parts: RULING RE: ORDER TO SHOW CAUSE, SANCTIONS, AND REVISED SCHEDULING ORDER Although the plaintiff's counsel failed to attend the September 4, 2018 pretrial and has not diligently prosecuted the case consistent with the court's scheduling orders (as established at the September 24 short calendar hearing), the court still finds a dismissal of this case disproportionate to these problems, and will impose alternate sanctions denying the pending summary judgment motion and requiring the plaintiff to pay the costs associated with any deposition of the plaintiff's experts. (emphasis added) Order attached hereto as Exhibit A. ORAL ARGUMENT REQUESTED TESTIMONY NOT REQUIRED Page 1 of 6 2 The September 24, 2018 order further ruled: The court, therefore, issues the revised scheduling order. Failure to comply with this order may result in sanction, which may include fine, exclusion of evidence at trial, dismissal, default or non-suit.... 4. The defendant shall complete any depositions of plaintiff's expert by November 9, 2018. The deposition shall not exceed four hours, and all costs of this deposition, including the expert's fee for the deposition, shall be borne and paid for by the plaintiff... 8. All depositions, all discovery and all issues regarding discovery shall be completed by February 1, 2019. 3. On October 29, 2018, Defendants duly noticed the deposition of plaintiff's expert Joshua Goodbaum for November 7, 2018. 4 On November 3, 2018, counsel for the plaintiff notified the undersigned "are you aware that Practice Book Section 13-4 requires you to pay the expert fee associated with the deposition of Mr. Goodbaum?" 5 The deposition did not take place prior to the court's revised scheduling order deadline of November 9, 2018 on account of plaintiff's counsel insistance that defense counsel prepay the deposition costs. 5 On January 10, 2019, counsel for the plaintiff notified the undersigned "I am offering you the week of January 28th for depositions.... The expert will require payment in advance if you wish to depose him." Page 2 of 6 6 On January 22, 2019, the undersigned telephoned Attorney Kryzanski in an effort to resolve the matter concerning the expert's deposition. Attorney Kryzanski notified the undersigned that the expert's fees were $350.00 per hour and as such, to schedule and complete a four hour deposition, prepayment of $1,400.00 by the undersigned was required. 7 Accordingly, defendants are seeking judicial assistance, in a way that provides meaningful sanctions for the plaintiff's blatent disregard of the court orders concerning payment of the deposition costs. THE DISCOVERY DISPUTE 8 On January 11, 2019, the undersigned filed Motions 123 and 124, Motion for Permission to File Summary Judgment-Case Assigned for Trial and Motion for Summary Judgment, with accompanying brief in support. 9 On January 23, 2019, Attorney Kryzanski, as counsel for plaintiff, filed Motions 126 and 127, Objection to Motion and Memorandum in Opposition to Motion. 10. On page five of plaintiff's Motion, plaintiff argues, inter alia, " Recently, in anticipation of filing a Plaintiff's Second Motion for Summary Judgment, Attorney Goodbaum provided and affidavit dated January 17, 2019 providing opinion as to a result in Satawhite v. City of Bridgeport (Exhibit F). In addition, Plaintiff intends to file a second Motion for Summary Judgment including Attorney Goodbaum's second affidavit when permission for leave is granted by the court." Page 3 of 6 11 Connecticut Practice Book, Section 13-4. Experts, provides the following: (g) Unless otherwise ordered by the judicial authority, or otherwise agreed by the parties, the following schedule shall govern the expert discovery required under subsecti ons (b), (c), (d) and(e) of this section. (1) Within 120 days after the return date of any civil action, or at such other time as the parties may agree or as the court may order, the parties shall submit to the court for its approval a proposed Schedule for Expert Discover y, which, upon approval by the court, shall govern the timing of expert discovery in the case. This schedule shall be submitted on a “Schedule for Expert Discovery” form prescribed by the Office of the ChiefCourt Administrator. The deadlines proposed by the parties shall be realistic and reasonable, taking into account the nature and relative complexity of the case, the need for predicate discovery and the estimated time until the case may be exposed for trial. A party who wishes to modify the approved Schedule for Expert Discovery or other time limitation under this section without agreement of the parties may file a motion for modification with the court stating the reasons therefor. Said motion shall be granted if: (A) the requested modification will not cause undue prejudice to any other party; (B) the requested modification will not cause undue interference with the trial schedule in the case; and (C) the need for the requested modification was not caused by bad faith delay of disclosure by the party seeking modification. (h) A judicial authority may, after a hearing, impose sanctions on a party for failure to comply with the requi(rements of this section. An order precluding the testimony of an expert witness may be entered only upon a finding that: (1) the sanction of preclusion, including any consequence thereof on the sanctioned party’s ability to prosecute or to defend the case, is proportional to the noncompliance at issue, and (2) the noncompliance at issue cannot adequately be addressed by a less severe sanction or combination of sanctions. Page 4 of 6 12. This matter is on the trial list, with jury selection schedu led to begin on May 7, 2019. 13. The Plaintiff has not filed a request for modification to permit this "second affidavit and/ or expert opinion" from Mr. Goodbaum and has no good faith reason to justify or excuse the delay. 14. It is important to note that this matter was previously stricken from the trial list on September 4, 2018, when jury selection was scheduled to begin on September 18, 2018, on account of Attorney Kryzanski's failure to attend the pretrial conference and failure to diligently prosecute the case consistent with the court's previous scheduling order. 15. Allowance of this late disclosure of expeert affidavit/opinion would result in extreme undue prejudice to the defendant and result in yet another delay of the trial schedule . 16. Filed along with this instant motion is Defendant's Request For Adjudication of Discover y or Deposition Dispute Under Statewide Standing Order, as this motion is filed within six months of the trial date. WHEREFORE, Defendants respectfully moves the Court for an Order: l An entry of nonsuit or dismissal; 2 An award of the costs of the motion, including a reasonable attorney fee; 3 An order precluding the Plaintiff who failed to comply with the discovery order from introducing certain matters into evidence; 4. An order prohibiting the Plaintiff from introducing into evidence any additional expert affidavit or opinion beyond the scope of the initial expert disclosure dated May, 2018. 5. Awarding Defendants such other further relief as the Court deems just and proper. Page 5 of 6 THE DEFENDANTS / — Jerald Barber /Nilliams and Barber “ 85 Mumford Road New Haven, Connecticut 06515 (203)787-2236 Juris No. 408909 jeraldbarberlaw@comcast.net CERTIFICATION Thereby certify that a copy of the foregoing was delivered via u.s. mail and electronic delivery on the above date to: Daniel Kryzanski, Esq. Law Offices of Daniel Kryzanski 30 Ferry Blvd., #2 Stratford, CT 06615 — We Jetald Bar f Page 6 of 6 ORDER 410631 DOCKET NO: AANCV166021915S SUPERIOR COURT SATAWHITE, ROBERT JUDICIAL DISTRICT OF ANSONIA/ Vv MILFORD BARBER, JERALD Et Al AT MILFORD 9/24/2018 ORDER ORDER REGARDING: 09/04/2018 117.00 ORDER The foregoing, having been considered by the Court, is hereby: ORDER: RULING RE: ORDER TO SHOW CAUSE, SANCTIONS, AND REVISED SCHEDULING ORDER Although the plaintiff's counsel failed to attend the September 4, 2018 pretrial and has not diligently prosecuted the case consistent with the court's scheduling orders (as established at the September 24, short calendar hearing), the court still finds a dismissal of this case disproportionate to these problems, and will impose alternate sanctions denying the pending summary judgment motion and requiring the plaintiff to pay the costs associated with any deposition of the plaintiff's experts. The court, therefore, issues the revised scheduling order. Failure to comply with this order may result in sanction, which may include fine, exclusion of evidence at trial, dismissal, default or non-suit. 1. No further interrogatories or requests for production may be served absent leave of court. 2. Depositions of parties and fact witnesses shall be completed by February 1, 2019. 3. The plaintiff is precluded from disclosing any further expert witnesses other then Joshua Goodbaum who has been disclosed. 4. The defendant shall complete any depositions of plaintiff's expert by November 9, 2018. The deposition shall not exceed four hours, and all costs of this deposition, including the expert’s fee for the deposition, shall be borne and paid for by the plaintiff. 5. The defendant shall disclose expert witnesses by December 21, 2018. Absent leave of court, no experts may be disclosed by the defendant after this date. 7. The plaintiff shall complete any depositions of defendant’s experts by February 1, 2019. 8. All depositions, all discovery and all issues regarding discovery shall be completed by February 1, 2019, If the parties are unable to agree on deposition dates, the party seeking the deposition shall file a timely motion for the court to address the dispute before the applicable deposition deadline date. 9. No motions for summary judgment shall be filed absent leave of court. See Practice Book § 17-44. 10. Caseflow is directed to schedule a final judicial settlement conference and the commencement of AANCV166021915S 9/24/2018 Page | of 2 trial for dates after March 1, 2019. Any part, fy May request an earlier judicial pretrial through the clerk's office by filing a Caseflow Request Form. This Scheduling Order Can Be Modified Only Upon Motion and Order of the Court. Absent Modification of this Scheduling Order, A ny Disclosure s Not Made or Discovery Not Completed Within the Times Specified May Be Deemed Waived and Abandoned. Th us the Parties Are Required to Bring Any Problems with the Scheduling or the Completion of Discov e: ry to the Court’s Attent tion Promptly Through Appropriate Motion or Conference Re quest. Motions for Modifi Granted, Except That Motions to Continue a Trial Date Must Be Suppo cation Shall B ‘e Liberally rted by Good C: ‘ause Because Any Rescheduled Date May Substantially Di elay the Trial. The Parties Shall Make Good Faith Efforts to Resolve Discover 'y Disputes Before Filing Any Motions or Objections Regarding Same. No Objections Regarding Interr ‘ogatories or Requests for Production Shall Be Placed on the Short Calendar List Unless an Affidavit Is Filed Certify Efforts Have Been Made to Resolve the Dispute in Accordance with Practic ing That Bona Fide e Book § 13-8 (B) and § 13-10 (C). The Parties Are Ordered to Resolve All Discove: ty Disputes Through Motions or Objections Available under Chapter 13 of the Practice Book Before t he Date for Completion of Discovery. Motions in Limine* and Motions to Preclude Filed at the Ti ime of Trial May Not Be Enterta ined by the Court When Directed at Discovery Issues That Could Have Been Addressed and Resolved Through Pre-trial Remedies Available under Chapter 13 of the P ractice Book.M 410631 Judge: BARRY STEVENS AANCV166021915S 9/24/2018 Page 2 of 2 ae