Opinion

Duncan v. Nunez

Court
District Court, W.D. Louisiana
Filed
Oct 23, 2019
Cited by
0 cases
Authority
More cited than 22.5%

The opinion

a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

MARCO DAMON DUNCAN, CIVIL DOCKET NO. 1:17-CV-1623-P

Plaintiff

VERSUS JUDGE DRELL

JOSE NUNEZ, , MAGISTRATE JUDGE PEREZ-MONTES

Defendants

MEMORANDUM ORDER

Before the Court is a Motion to Terminate or Limit Deposition (Doc. 175) filed

by Plaintiff Marco Damon Duncan (“Duncan”) (#37679-048). Duncan is an

inmate in the custody of the Federal Bureau of Prisons incarcerated at the United

States Penitentiary in Florence, Colorado.

Because the Motion (Doc. 175) is untimely and meritless, it will be DENIED.

I. Background

Duncan initiated this litigation pursuant to Bivens v. Six Unknown Agents of

the Federal Bureau of Narcotics1 (Docs. 1, 16, 20) alleging that he was subjected to

excessive force when he was incarcerated at the United States Penitentiary in

Pollock, Louisiana.

In this Motion (Doc. 175), Duncan claims that Defendants deposed him without

notice and “attempted to enter altered video footage into the record as an Exhibit.”

1In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), the Supreme Court recognized that certain circumstances may give rise to a private

cause of action against federal officials that is comparable to the statutory cause of action

permitted against state officials by 42 U.S.C. § 1983.

(Doc. 175-1, p. 1). Duncan seeks to “terminate or limit” the deposition under Federal

Rule of Civil Procedure Rule 30(d)(3).

II. Law and Analysis

Federal Rule of Civil Procedure Rule 30(d)(3)(A) provides: “At any time during

a deposition, the deponent or a party may move to terminate or limit it on the ground

that it being conducted in bad faith or in a manner that unreasonably annoys,

embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3). Rule

30(d)(3) is used to terminate or limit depositions that are taking place, and the motion

must be made during the deposition. See Brown v. Praxair, Inc., 17-CV-384, 2018

WL 5116499, at *4 n.1 (M.D. La. Oct. 19, 2018); Murillo Modular Grp., Ltd. v.

Sullivan, 3:13-CV-3020, 2016 WL 6139096, at *6 (N.D. Tex. Oct. 20, 2016) (Rule

30(d)(3) requires the motion be made during the deposition); Fed. R. Civ. P.

30(d)(3)(A). Because the deposition has concluded, Duncan’s Motion (Doc. 175) is

untimely.

Additionally, Duncan’s objection to the video exhibit was noted during the

deposition. “An objection at the time of the examination—whether to evidence, to a

party’s conduct, to the officer’s qualifications, to the manner of taking the deposition,

or to any other aspect of the deposition—must be noted on the record, but the

examination still proceeds; the testimony is taken subject to any objection.” See Fed.

R. Civ. P. 30(c)(2).

Further, Duncan’s objection to the lack of notice of deposition is untimely, as

he has already submitted to the deposition. And, the objection is improperly raised

under Rule 30, which does not apply to a deposition notice.

Ill. Conclusion

Because Duncan’s Motion to Terminate or Limit Deposition (Doc. 175) is

untimely and meritless, IT IS ORDERED that the Motion (Doc. 175) is DENIED.

THUS DONE AND SIGNED in Alexandria, Louisiana, on thisg’ 23rd day of

October 2019.

_ ™ oe be

JOSEPH H.L. PEREZ-MONTES

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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