United States District Court, S.D. Ohio, Western Division, Dayton
ORDER AND ENTRY GRANTING IN PART AND DENYING IN PART
DEFENDANT ALE DUKIC'S MOTION NOT TO PARTICIPATE AND GIVE
TESTIMONY AT DEPOSITION OR TRIAL (DOC. 54)
Michael J. Newman United States Magistrate Judge.
civil case is before the Court on Defendant Ale Dukic's
motion requesting that Court not require him to appear and
participate at trial or give deposition testimony in this
case. Doc. 54. Plaintiff filed a memorandum in opposition
and, subsequently, Dukic, through counsel, filed a reply.
Doc. 58, 59. The undersigned has carefully considered the
foregoing, and Dukic's motion is now ripe for decision.
civil case arises from an automobile accident that occurred
on March 18, 2015 on southbound Interstate 75 in Montgomery
County, Ohio between, inter alia, an automobile
operated by Plaintiff Bruce Anca and a tractor-trailer
operated by Defendant Ale Dukic. At the time, Dukic was
allegedly operating a tractor-trailer owned or otherwise
supplied to him by Defendant Gemini Transport, LLC
(“Gemini”) within the course and scope of his
employment or agency with Gemini. Plaintiff alleges he
suffered injuries as a result of Dukic's negligence in
causing the accident and that Gemini is vicariously liable
for Dukic's culpability. Given apparent stipulations
between the parties, the only issue to be resolved at trial
in this case is causation and damages.
support of the instant motion, Dukic's counsel cites an
agreement previously reached between counsel in the case
wherein they agreed that, because Defendants have stipulated
to liability (leaving the issues of causation and damages for
trial), Dukic would not have to appear at trial or give
testimony in the case. Doc. 54. Plaintiff's attorney Ryan
Melewski, however, has since reneged on that agreement and
seeks to call Dukic to testify at trial for purposes of
exploring “the manner and nature of the impact, what
events led to the crash, what happened at the scene, what . .
. Dukic saw and heard, any interaction with Plaintiff, and so
on.” Doc. 58 at PageID 264. In reliance on the previous
agreement between counsel, however, Dukic's attorney lost
touch with him and is now unable to contact him. Doc. 54 at
undersigned recognizes that case strategy sometimes changes
as a case proceeds through litigation. However, the
undersigned is troubled that Mr. Melewski entered into an
agreement with opposing counsel, reneged on that agreement
late in the case, and defense counsel, having relied on such
agreement to his detriment, must now expend time and effort
into an issue thought resolved many months ago (notably, this
case was filed in state court in February 2017
--i.e., approximately two-and-a-half years ago).
There being no evidence of gamesmanship by Mr. Melewski,
recognizing Plaintiff's right to call witnesses at trial,
the Court DENIES Dukic's motion with
regard to excusing him from appearing at trial to provide
Court's denial of Defendant Dukic's motion in this
regard, however, is not an Order requiring Dukic to appear
and participate at trial. He certainly may do so if he and
his attorney so choose. Otherwise, should Plaintiff wish to
call Dukic as a witness at trial, Plaintiff shall comply with
all legal requirements necessary to secure Dukic's
attendance. See, e.g., Fed. R. Civ. P. 45(c).
regard to the relief requested as to deposition testimony,
the Court notes that discovery commenced in 2017 and the
deadline for discovery has been extended numerous times since
the case began. See docs. 13, 17, 30, 34, 38, 39,
45, 53. Trial in the case was last set to commence on May 13,
2019, with discovery ending on January 25, 2019. Doc. 45.
Apparently Plaintiff never sought Dukic's deposition
prior to that January 25, 2019 discovery deadline or the May
13, 2019 trial. The Court did vacate the May 13 trial and did
set a new discovery deadline, but did so for the purpose of
accommodating Plaintiff's ongoing treatment with an ENT
and the exchange of discovery, including opinion evidence,
regarding that treatment. See doc. 53. Because
Plaintiff did not seek to depose Defendant Dukic prior to
expiration of the previous discovery deadline, because
discovery has been reopened for the purpose of
Plaintiff's ENT treatment, and in light of the previous
agreement between counsel, the undersigned
GRANTS Defendant Dukic's motion as it
relates to deposition testimony. Thus, the Court
ORDERS that, absent the agreement of all
counsel, Dukic need not appear for deposition testimony.
IS SO ORDERED.
 The Court certainly presumes no
gamesmanship in this regard in light of the fact that Mr.
Melewski is an officer of the Court and the Court's
Introductory Statement on Civility set forth in the ...