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Howard v. Farmers Insurance Company, Inc.

United States District Court, C.D. California

September 6, 2017

DERRICK HOWARD, Plaintiff,
v.
FARMERS INSURANCE COMPANY, INC.; MID-CENTURY INSURANCE COMPANY, Defendants.

          PRE-TRIAL ORDER

          DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE.

         The court adopts the following pre-trial order to resolve the manner of Plaintiff Derrick Howard's appearance at trial in this matter.

         I. BACKGROUND

         Plaintiff in pro per, Derrick Howard, is an inmate at United States Penitentiary Coleman II in Florida. (Dkt. 175). In 2012, Ho ward filed a pro se complaint against Farmers Insurance Company, Inc. and Mid-Century Insurance Company (collectively, Defendants) (Dkt. 3). The claims in his civil complaint arise from an insurance contract relating to a rental property in Missouri that Howard owns or owned. (Dkt. 3).

         The court assumes the parties' familiarity with the litigation history of this case, which has been recounted in the court's prior Orders. (See Dkt. 50, 175.). As relevant here, Plaintiff filed a partial Motion for Summary Judgment. (Dkt. 175).[1] The sole issue before the court on summary judgment was whether Plaintiff's rental property was vacant 30 days prior to July 15, 2005, the date of the alleged act of vandalism. (Dkt. 175). The court denied Plaintiffs' partial Motion for Summary Judgment, finding that a triable issue of fact remained as to the vacancy of the unit. (Id.)

         A trial in this matter is scheduled for September 19, 2017 (Dkt. 200). Because Plaintiff is currently incarcerated in the state of Florida, the court must now sua sponte determine the manner in which Plaintiff will appear for trial and litigate his civil suit.

         II. LEGAL STANDARD

         “When determining whether it should issue a writ of habeas corpus ad testificandum . . . the district court must exercise its discretion based upon consideration of such factors as whether the prisoner's presence will substantially further the resolution of the case, the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted.” Wiggins v. Alameda Cty., 717 F.2d 466, 468 (9th Cir. 1983) (citing Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977).

         III. DISCUSSION

         Under 28 U.S.C. § 2241(c)(5) and § 1651(a), a district court may issue a writ of habeas corpus ad testificandum to secure the physical presence of a prisoner in court. See Greene v. Prunty, 938 F.Supp.637, 638 (S.D. Cal. 1996). In determining whether the writ should issue, a court must weigh the relative costs and benefits of the prisoner's physical presence, including “whether the prisoner's presence will substantially further the resolution of the case, the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted.” Wiggins, 717 F.2d at 468. The result will turn on “whether the probative value of the testimony justifies the expense and security risk associated with transporting an inmate-witness to court from a correctional facility.” Greene, 938 F.Supp. at 639 (S.D. Cal. 1996). The court considers each of these factors below in turn.

         a. Substantial Furtherance of Case Resolution

         As to the first factor, a court must consider “not only whether an inmate-witness's testimony is relevant, but also, whether such testimony is necessary.” Id. at 639. Here, as Howard is proceeding pro per in his own case, the court finds that his presence at trial will significantly further the resolution of the litigation.

         Despite this, under Federal Rule of Civil Procedure 43(a), a court may permit testimony in open court by live videoconferencing “[f]or good cause in compelling circumstances and with appropriate safeguards.” Therefore, the precise question before the court is whether a live videoconferencing may be an appropriate substitute for Howard's physical presence given the countervailing considerations of cost and security, which are discussed below.

         b. ...


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