IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 8, 2010
JACQUELINE CONNELL, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On December 28, 2009, the United States filed an objection to Plaintiff's discovery designation concerning the bench trial scheduled to commence at 9:00 a.m. on January 12, 2010. The United States argues Plaintiff's discovery designation was untimely, and alternatively, Plaintiff's designation of the deposition testimony of Frank LiVolsi, Suzanne Mueller, and Dean Germano is impermissible under Federal Rule of Civil Procedure 32(a)(1) ("Rule 32(a)(1)"), which governs the use of deposition testimony at trial. Plaintiff declares the untimely filing was due to a clerical mistake. The timeliness issue is not decided. Plaintiff did not address the United States' arguments under Rule 32(a)(1).
The United States' objection concerns Plaintiff's apparent intention to treat the named witnesses as parties. Since these individuals are not parties in this action, the United States' objection is sustained. See Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1077 (9th Cir. 1988)(noting that "the United States is the only proper defendant in an FTCA action"). Absence satisfying the requirement that a witness is "unavailable" under Rule 32(a)(4), Plaintiff is not authorized to use non-parties' deposition testimony as Plaintiff indicates in her discovery designation.
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