grabbed Ben’s arm with surprising strength and looked at him with burning eyes. “You must not lose!”
“Your Honor, all Mr. Simeon is doing here is making a premature motion to bar,” Ben argued. “At most, the Dead Man’s Rule might allow him to prevent Dr. Ivanovsky from testifying at trial. It does not entitle him to summary judgment in the middle of discovery.”
“But you’re not in the middle of discovery, are you?” interjected Judge Harris. “As I understand it, both sides have completed their document productions, have responded to interrogatories, and have deposed all the witnesses they want.”
Simeon nodded and Ben shook his head. “Your Honor, there are deposition subpoenas outstanding for four witnesses—the members of the Brothers LLC, the entity that attempted to purchase the contents of the box from Mr. Zinoviev after he had entered into a contract with my client. Those subpoenas also call for the production of additional documents.”
“We will be moving to quash those subpoenas, Your Honor,” replied Simeon. “Mr. Corbin just handed them to me in court this morning, so I haven’t had a chance to analyze them in depth, but I don’t need to, and neither does the Court. All of these witnesses have already been deposed and produced documents. They didn’t know anything about Dr. Ivanovsky’s purported contract then, and they don’t know anything now. These subpoenas are nothing but a stalling tactic to avoid summary judgment.”
That was at least partially true, Ben had to admit. He decided to try a different tack. “We just got this motion yesterday, and trial is less than two weeks away. We haven’t had time to respond. Mr. Simeon can make his motion to bar at the proper time and on proper notice, and the Court can rule on this issue if it comes up at trial. In the meantime, we’re entitled to finish our discovery and put on our case.”
“Mr. Corbin doesn’t have a case to put on, Your Honor,” retorted Simeon. “That’s the point of our motion, and that’s why we ask you to rule on it today. There are two crucial points that he does not and cannot dispute. First”—he held up a finger—“the Dead Man’s Rule prevents Dr. Ivanovsky from testifying. Second”—another finger—“without Dr. Ivanovsky’s testimony, the plaintiff has no case. Mr. Corbin understandably would like the Court not to rule on this motion today, but the only ground he cites for delay is his hope that additional discovery will somehow uncover a new keystone to his case to replace his client’s inadmissible testimony. It will not, and even Mr. Corbin cannot articulate why he thinks it would. Further delay will only waste the time and resources of the Court and the parties. We ask that the Court enter summary judgment.”
“Anything further, Mr. Corbin?” asked the judge.
Ben had already run through all of his points twice during the half-hour oral argument. Doing it again would irritate the judge. “No, Your Honor. We believe the Court should deny the motion or at least put it over until trial.”
“Okay, here’s my ruling. I’m going to grant the motion and enter summary judgment in favor of the defendant and against the plaintiff. I am not a fan of the Dead Man’s Rule, but I am bound by it. It’s clear that the rule bars Dr. Ivanovsky’s testimony. It’s also clear to me that the remaining admissible evidence is not sufficient to allow the plaintiff to prevail at trial. Normally, I wouldn’t enter judgment without a full briefing, but frankly I don’t see what more briefing would contribute, given the clarity of the law and the facts in this case. Summary judgment is therefore appropriate.”
Ben had expected to lose, but it still stung. The judge looked at him as he continued to rule from the bench. “However, Mr. Corbin, I realize that this motion only got dropped on you yesterday and that you haven’t had a chance to adequately respond. Mr. Simeon was right to bring
“Your Honor, all Mr. Simeon is doing here is making a premature motion to bar,” Ben argued. “At most, the Dead Man’s Rule might allow him to prevent Dr. Ivanovsky from testifying at trial. It does not entitle him to summary judgment in the middle of discovery.”
“But you’re not in the middle of discovery, are you?” interjected Judge Harris. “As I understand it, both sides have completed their document productions, have responded to interrogatories, and have deposed all the witnesses they want.”
Simeon nodded and Ben shook his head. “Your Honor, there are deposition subpoenas outstanding for four witnesses—the members of the Brothers LLC, the entity that attempted to purchase the contents of the box from Mr. Zinoviev after he had entered into a contract with my client. Those subpoenas also call for the production of additional documents.”
“We will be moving to quash those subpoenas, Your Honor,” replied Simeon. “Mr. Corbin just handed them to me in court this morning, so I haven’t had a chance to analyze them in depth, but I don’t need to, and neither does the Court. All of these witnesses have already been deposed and produced documents. They didn’t know anything about Dr. Ivanovsky’s purported contract then, and they don’t know anything now. These subpoenas are nothing but a stalling tactic to avoid summary judgment.”
That was at least partially true, Ben had to admit. He decided to try a different tack. “We just got this motion yesterday, and trial is less than two weeks away. We haven’t had time to respond. Mr. Simeon can make his motion to bar at the proper time and on proper notice, and the Court can rule on this issue if it comes up at trial. In the meantime, we’re entitled to finish our discovery and put on our case.”
“Mr. Corbin doesn’t have a case to put on, Your Honor,” retorted Simeon. “That’s the point of our motion, and that’s why we ask you to rule on it today. There are two crucial points that he does not and cannot dispute. First”—he held up a finger—“the Dead Man’s Rule prevents Dr. Ivanovsky from testifying. Second”—another finger—“without Dr. Ivanovsky’s testimony, the plaintiff has no case. Mr. Corbin understandably would like the Court not to rule on this motion today, but the only ground he cites for delay is his hope that additional discovery will somehow uncover a new keystone to his case to replace his client’s inadmissible testimony. It will not, and even Mr. Corbin cannot articulate why he thinks it would. Further delay will only waste the time and resources of the Court and the parties. We ask that the Court enter summary judgment.”
“Anything further, Mr. Corbin?” asked the judge.
Ben had already run through all of his points twice during the half-hour oral argument. Doing it again would irritate the judge. “No, Your Honor. We believe the Court should deny the motion or at least put it over until trial.”
“Okay, here’s my ruling. I’m going to grant the motion and enter summary judgment in favor of the defendant and against the plaintiff. I am not a fan of the Dead Man’s Rule, but I am bound by it. It’s clear that the rule bars Dr. Ivanovsky’s testimony. It’s also clear to me that the remaining admissible evidence is not sufficient to allow the plaintiff to prevail at trial. Normally, I wouldn’t enter judgment without a full briefing, but frankly I don’t see what more briefing would contribute, given the clarity of the law and the facts in this case. Summary judgment is therefore appropriate.”
Ben had expected to lose, but it still stung. The judge looked at him as he continued to rule from the bench. “However, Mr. Corbin, I realize that this motion only got dropped on you yesterday and that you haven’t had a chance to adequately respond. Mr. Simeon was right to bring
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