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Harris v. Dana

Superior Court of Rhode Island

August 12, 2016

JOHANNA HARRIS
v.
JEFFREY DANA, in his capacity as City Solicitor of the City of Providence; JORGE O. ELORZA, in his capacity as Mayor of the City of Providence; SAMUEL D. ZURIER, in his capacity as Chairman of the Committee on Claims and Pending Suits, Providence City Council; and JAMES J. LOMBARDI III, in his capacity as Treasurer of the City of Providence

         Providence County Superior Court

          For Plaintiff: Johanna Harris, Pro Se

          For Defendant: Dennis E. Carley, Esq.; James D. Cullen, Esq.

          DECISION

          LICHT, JUSTICE

         Johanna Harris (Ms. Harris or Plaintiff), brings this motion to compel further deposition testimony from Samuel Zurier (Mr. Zurier) and to seek sanctions for the conduct of Mr. Zurier's attorney at his initial deposition. For the reasons set forth herein, Plaintiff's motions are denied.

         I

         Facts and Travel

         The underlying claim has an extended procedural history, and stems from the City of Providence's (the City) alleged failure to defend or otherwise indemnify a City official in legal proceedings brought against her.

         On February 6, 2014, Johanna Harris (Ms. Harris) was sworn in as Commissioner of the Board of Licenses for the City of Providence (the Board), and was subsequently elected Chairman of the Board. (Am. Compl. ¶ 2). Ms. Harris immediately initiated a series of changes to the procedures of the Board. Subsequently-and apparently as a direct result of those changes-Attorney Peter Petrarca (Mr. Petrarca) sustained several adverse decisions against his clients, and filed a complaint with the Rhode Island Ethics Commission against Ms. Harris on August 22, 2014. Id. at ¶ 3. Additionally, Mr. Petrarca filed suit in the Superior Court on October 8, 2014, seeking a preliminary injunction to compel Ms. Harris to recuse herself in all cases before the Board in which Mr. Petrarca represented a client due to the alleged conflict of interest that he argued existed. Id. at ¶ 4.

         On October 28, 2014, the Superior Court denied Mr. Petrarca's motion for a preliminary injunction, and his complaint was ultimately dismissed on March 31, 2015. Id. at ¶¶ 6-7. Furthermore, the Rhode Island Ethics Commission also dismissed Mr. Petrarca's complaint against Ms. Harris on July 21, 2015. Id. at ¶ 9. As a result of the expenses incurred in defending against these matters, Ms. Harris avers that on April 7, 2015 she submitted a request with the City for indemnification of her legal expenses in accordance with G.L. 1956 § 45-15-16[1], but that her request was denied. Id. at ¶¶ 8, 10.

         Following the denial of her request-and apparently after settlement talks with the City were unsuccessful-on September 1, 2015 Ms. Harris filed a petition for a writ of mandamus with the Superior Court, seeking indemnification for her legal expenses (totaling $17, 983) resulting from her defense against Mr. Petrarca's claims.

         Ms. Harris brought a motion for judgment on the pleadings before the Court on January 26, 2016. At that hearing, the Court denied Ms. Harris' motion and further informed her that her petition seeking a writ of mandamus was improper. However, because the City conceded that Ms. Harris properly filed a claim with the City Council (pursuant to § 45-15-16), the Court allowed her leave to amend her pleadings to a complaint seeking damages pursuant to that statute. While Ms. Harris would eventually file an amended complaint, she continued to seek a writ of mandamus, despite the Court's earlier ruling. Having already determined that a petition for a writ of mandamus was improper, the Court (on May 3, 2016) granted Defendants' motion to dismiss the portion of her action seeking mandamus. As such, what remains before the Court is Ms. Harris' complaint seeking damages pursuant to § 45-15-16.

         Ms. Harris originally began conducting the deposition of Mr. Zurier on February 23, 2016. See Pl.'s Mot. Compel ¶ 1, Feb. 25, 2016. At that time, counsel for Mr. Zurier suspended the deposition after conveying his belief that the questions being asked by Ms. Harris were inappropriate and not relevant to the merits of the instant action. Id. at ¶¶ 3, 6. Ms. Harris then moved to compel Mr. Zurier's attendance for his continued deposition, and is seeking sanctions based on Defendants' alleged bad faith tactics in suspending or otherwise interfering with Mr. Zurier's deposition. At a hearing for this motion held on March 10, 2016, the Court sua sponte raised the possible issue of Mr. Zurier's legislative immunity, and asked both parties for further briefing on this issue. See Hr'g Tr. 25; 38, Mar. 10, 2016.

         The questions of legislative immunity and sanctions for suspending the deposition are the issues presently before the Court.

         II

         Standard of Review

         A motion to compel is governed by Super. R. Civ. P. 37(a)(2).[2] "When a party or deponent refuses to answer a question, the proponent may apply to the court for an order compelling an answer." Fremming v. Tansey, 626 A.2d 219, 220 (R.I. 1993) (internal citation omitted). "The burden is upon the party seeking the discovery to show that the 'denial of production or inspection will result in an injustice or undue hardship.' The determination of this issue is vested in the sound discretion of the trial justice, who should look at the facts and circumstances of each case in ...


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