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Schulman v. Saloon Beverage, Inc.

United States District Court, D. Vermont

July 9, 2014

Norman H. Schulman. Susan Schulman, Plaintiffs,
Saloon Beverage, Inc. d/b/a Sirloin Saloon, DWH I, LLC, Susan Schulze-Claasen, Defendants.

OPINION AND ORDER (Docs. 80, 82)

JOHN M. CONROY, Magistrate Judge.

Plaintiffs Norman H. Schulman, M.D. and Susan Schulman (the Schulmans) have filed this diversity action against the above-captioned Defendants under Vermont's Dram Shop Act (DSA), 7 V.S.A. § 501, alleging that Defendants' sale of beer to Mark R. Clarke caused the February 18, 2011 head-on collision between the vehicle that Clarke was operating and the Schulmans' vehicle. ( See Doc. 13.) Defendants deny that Clarke entered Defendants' restaurant, the Sirloin Saloon, or consumed beers there on February 18, 2011. ( See Doc. 14 at 4-5, ¶¶ 41-42, 44.)

Currently pending is Defendants' Motion to Quash a subpoena filed by the Schulmans commanding John Eule to appear for a deposition. (Doc. 80.) Also pending is Defendants' Motion in Limine seeking to exclude statements made by Clarke to others that he was at the Sirloin Saloon prior to the collision. (Doc. 82.) The Court heard argument on the Motions on July 8, 2014. All parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs. 2, 3, 7.) For the reasons that follow, Defendants' Motion to Quash (Doc. 80) is DENIED, and Defendants' Motion in Limine (Doc. 82) is DENIED.


A central issue in this DSA case is whether Clarke was a patron at the Sirloin Saloon on the night in question. That issue was the subject of the Schulmans' Motion for Sanctions (Doc. 55), which the Court denied in an Order dated April 18, 2014. (Doc. 75.) Familiarity with that Order is presumed, although for present purposes it is perhaps sufficient to note that discovery has produced no documentary evidence of Clarke's presence at the Sirloin Saloon on February 18, 2011. Clarke himself has not been deposed in this case, and discovery has been closed since March 31, 2014. ( See Doc. 46 at 1.) The following additional facts are drawn from the Court's review of police video recordings supplied by the Schulmans (Docs. 87-1; 87-2).

On the night of February 18, 2011, Vermont State Police Trooper Travis Hess responded to a report of the collision and, upon arriving near the scene, spotted Clarke in the snow off the side of the road. Trooper Hess ordered Clarke out of the snow and apprehended him. Clarke made statements, including an admission that he had recently consumed three or four beers. A few minutes later during their roadside interaction, after conducting field sobriety tests, Trooper Hess asked Clarke if he remembered what bar or restaurant he was at, and Clarke responded, "the Sirloin Saloon." (Doc. 87-1.) Numerous emergency vehicles with lights and sirens flowed toward the scene of the collision as Clarke and Trooper Hess spoke.

At the police station after being arrested, Clarke made similar statements to Trooper Hess and to Vermont Department of Liquor Control Officer Jason Elmer. Specifically, Clarke told Trooper Hess that he had driven from the Sugarbush ski area to Manchester, Vermont, and when asked where he was in Manchester, Clarke responded, "Sirloin Saloon." (Doc. 87-2.) Trooper Hess also asked Clarke what he had been drinking, and Clarke stated that it was "Sierra Nevada draft." ( Id. ) Also at the police station, Officer Elmer asked Clarke a series of questions, the first of which was whether Clarke remembered what time he arrived at the Sirloin Saloon; Clarke responded that it was a couple of hours ago. Trooper Hess noted Clarke's statements in several affidavits and police reports. ( See Doc. 87-3.)

Additional factual background is set forth as necessary below.


I. Defendants' Motion in Limine

Defendants seek the exclusion of the statements made by Mark Clarke to Trooper Hess and Officer Elmer that he had been at the Sirloin Saloon, arguing that those statements are inadmissible hearsay. Defendants also contend that the same statements, as recounted in Trooper Hess's police reports, are double hearsay. The Schulmans do not dispute that Clarke's statements are hearsay as defined by Fed.R.Evid. 801, but assert that the statements are admissible under the exceptions in Fed.R.Evid. 804(b)(3), 803(2), 803(6), 803(8), and 807.

"The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria , 88 F.3d 136, 141 (2d Cir. 1996) (internal quotation marks and citation omitted). Because a ruling on a motion in limine "is subject to change when the case unfolds, " the Court's evidentiary rulings here are preliminary only. Id. at 139 (quoting Luce v. United States , 469 U.S. 38, 41 (1984)).

A. Statement Against Interest

Under Rule 804(b)(3), a "statement against interest" is excepted from the rule against hearsay. In a civil case such as this, a "statement against interest" is a statement that:

a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability.

Fed. R. Evid. 804(b)(3)(A). The exception only applies, however, when the declarant is "unavailable" as defined by Fed.R.Evid. 804(a).

1. Clarke's Availability; The Court's Subpoena Power

In their Motion, Defendants argue that Rule 804(b)(3) does not apply because the Schulmans have not shown that Clarke is unavailable as a witness. The Schulmans apparently concede that Clarke might appear and testify at trial, but seek a ruling regarding the application of Rule 804(b)(3) in the event that Clarke is unavailable. ( See Doc.87 at 3.) In their Reply, Defendants concede that the Court may rule on the issue. ( See Doc. 90 at 2 ("Although it is not yet known whether Clarke will appear and testify at trial, the issue of whether Clarke's statement that he was at the Sirloin Saloon qualifies as a statement against interest is ripe for the Court's consideration.").)

The Court concludes that it may properly suggest the outcome of the Rule 804(b)(3) analysis in the event that Clarke is unavailable. See Samad Bros., Inc. v. Bokara Rug Co. , No. 09 Civ. 5843(JFK)(KNF), 2012 WL 43613, at *1 (S.D.N.Y. Jan. 9, 2012) (ruling on motion in limine on the assumption that the declarant would be unavailable to testify at trial). The Court nevertheless notes the following. The Schulmans have the burden under Rule 804(b)(3) to demonstrate that Clarke is unavailable. See United States v. Wexler , 522 F.3d 194, 202 (2d Cir. 2008). This is a condition precedent to admissibility under Rule 804(b)(3). If the Schulmans are going to offer Clarke's statements for admission at trial as statements against interest, they must make that preliminary showing. Notably, if the Schulmans intend to rely upon Rule 804(a)(5)(B) to establish unavailability, they must show that they have been unable, "by process or other reasonable means, " to procure Clarke's "attendance or testimony." In prior proceedings in this case, the Schulmans have suggested that Clarke is beyond the subpoena power of the Court because he is more than 100 miles from the courthouse.[1]

That is incorrect; this Court may issue a subpoena for Clarke, even though he resides in Connecticut. In fact, this Court is the only court that can issue a subpoena for Clarke in the pending case. See Fed.R.Civ.P. 45(a)(2) ("A subpoena must issue from the court where the action is pending."). The subpoena may be served in Connecticut. Fed.R.Civ.P. 45(b)(2) ("A subpoena may be served at any place within the United States."). There is a limitation on the place of compliance, see Fed.R.Civ.P. 45(c), but that does not impact the Court's power to issue the subpoena.

The Court concludes that the Schulmans must establish that they have employed process or "reasonable means" to procure Clarke's deposition testimony. See Fed.R.Evid. 804 advisory committee's note (1974 Enactment, Note to Subdivision (a)(5)) ("The amendment is designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable."). The Schulmans are incorrect insofar as they argue that unavailability focuses only on unavailability at trial. The Advisory Committee's Note makes clear that, for Rule 804(a)(5)(B) to apply, an attempt must be made to depose a witness and seek his attendance. See 2 Kenneth Broun et al., McCormick on Evidence § 253 (7th ed.) ("When absence is relied upon as the basis of unavailability and hearsay is offered under the exceptions in Rules 804(b)(2), (b)(3), and (b)(4), the Federal Rule imposes a further requirement. The proponent must demonstrate an inability to take the deposition of the missing witness."). Moreover, obtaining the witness's deposition testimony is not a mere procedural exercise: the deposition testimony itself may be admissible at trial (even if the witness is not a party) as described by Fed.R.Civ.P. 32(a)(4).

Moreover, the issue of whether Clarke was at the Sirloin Saloon on the night in question is a central issue in this case. The Schulmans' misunderstanding about the Court's subpoena power should not preclude discovery of this vital piece of evidence. For these reasons, the Court concludes that there is "good cause" under Fed.R.Civ.P. 16(b)(4) to reopen discovery for the purpose of subpoenaing and deposing Clarke if the Schulmans are planning on satisfying their burden to show Rule 804(b)(3) unavailability. ...

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