Case 1:09-cv-00386-SEB-JMS
Document 93
Filed 06/30/2009
Page 1 of 2
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
DR. BARRY EPPLEY, MD, DMD, Plaintiff, vs. LUCILLE IACOVELLI, Defendant.
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No. 1:09-cv-386-SEB-JMS
Entry Discussing Motion to Appear Telephonically A hearing on all pending motions is presently set for July 1, 2009. On the afternoon of June 30, 2009, the clerk received by first-class mail from the defendant the defendant’s motion to appear telephonically. After docketing, that motion was presented to the court and has been considered on this expedited basis because of the imminence of the July 1, 2009, hearing. The court on one prior occasion accommodated the defendant’s request to participate in a conference by telephone. Special circumstances warranted that accommodation which are not present here. Specifically, the matter before the court was whether the Temporary Restraining Order should be extended an additional ten days. The defendant had just recently been served with process and notified of the hearing, the defendant was unrepresented at that time and had indicated her lack of familiarity with judicial proceedings, and her uncertainty as to her obligations in those circumstances. Out of an abundance of caution, the court accommodated the defendant’s request to participate by telephone. In addition, as the defendant acknowledges in her present motion, the quality of the equipment and/or connection during that conference was inferior and entirely unsatisfactory. However, even with the prospect of better equipment being used by the defendant, who resides in Massachusetts, the court would not permit this procedure for an evidentiary hearing, where cross examination of witnesses would be a central part of the presentation. When the temporary restraining order was extended, it was in part to allow the defendant the opportunity to secure counsel. The parties were clearly notified that they should anticipate no similar in absentia arrangement in future hearings before the court. Apart from the foregoing, the court previously directed that all parties and their witnesses appear in person at the hearing set for July 1, 2009. The court did so consciously and fully anticipating that evidence will be submitted, that a number of matters will be addressed, and that all parties’ right to a fair and meaningful procedure, as well as the court’s ability to acquire adequate information from the parties, required such a proceeding.
Case 1:09-cv-00386-SEB-JMS
Document 93
Filed 06/30/2009
Page 2 of 2
The circumstances identified by the defendant in her motion do not persuade the court that any alternative to that which is presently scheduled would be meaningful and adequate. The parties cannot fully participate in the hearing either through testimony or the examination of documents by telephone. The defendant has been on several occasions encouraged to secure legal representation, as she apparently has done in another litigation in Massachusetts. The court continues to believe the assistance of counsel to Defendant Iacovelli would be very helpful. We note that no continuance of the hearing has been sought, nor do we know of any bases that would justify one under the circumstances. The defendant’s motion is viewed as yet another in a string of last-minute maneuvers seemingly designed to derail the process of this action leading to a final resolution of the dispute. A party’s own dilatory, self-initiated maneuvers to avoid responsibilities in a particular litigation will not support relief from the consequences of those tactics. The defendant’s motion to appear telephonically is accordingly denied. IT IS SO ORDERED.
Date:
06/30/2009
_______________________________ SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana
Distribution: Gary P. Price LEWIS & KAPPES gprice@lewis-kappes.com Todd Arthur Richardson LEWIS & KAPPES trichardson@lewis-kappes.com Joseph Peter Rompala LEWIS & KAPPES jrompala@lewis-kappes.com Lucille Iacovelli 3 Deer Hollow Road Forestdale, MA 02644