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MOODY v. TOWNSHIP OF MARLBORO

April 18, 1995

MICHAEL MOODY, Plaintiff,
v.
TOWNSHIP OF MARLBORO, et al., Defendants.



The opinion of the court was delivered by: FISHER

 FISHER, District Judge

 On this motion the court must consider the admissibility of an extrajudicial statement allegedly made to plaintiff by defendant's attorney during a break in a deposition taken in conjunction with an earlier lawsuit. Plaintiff, Michael Moody, has brought this suit against his employer, the Township of Marlboro, its former mayor, Saul G. Hornik, and its Chief of Police, Joseph Walker. Plaintiff alleges that he was passed over for promotion from patrolman to sergeant in November 1991 in retaliation for, inter alia, his filing of an earlier lawsuit against the defendant Township and several high ranking employees. *fn1" Plaintiff wishes to testify at trial regarding a statement allegedly made to him by Michael J. Kassel, Esq., defendant Walker's counsel in this case as well as in the earlier action. Specifically, plaintiff alleges that during a break in his deposition taken in the earlier suit, Kassel remarked to him that he could never expect to be promoted.

 Defendant Walker moves to bar such testimony or, in the alternative, for an order allowing Kassel to serve as his trial counsel. For the reasons expressed below, defendant's motion is granted, and the testimony regarding the alleged statement by Kassel is barred.

 The following excerpt from plaintiff's answers to defendant's special interrogatories is relevant for purposes of this motion.

 
Question: State the factual basis for Plaintiff's claim that Chief of Police Walker has made it known that it is his intention that Moody "never be promoted because of his critical speech and subsequent lawsuit which indicated in their minds that Moody was not a 'team player.'"
 
Answer: Plaintiff contends that it was well known around the Department that Joseph Walker would never promote Plaintiff and that upon the creation of any civil service list, he would bring this officer up on charges. Also, Mr. Walker's lawyer at deposition stated that after suing the Chief that I could never expect to be promoted.

 (Plaintiff's Answers to Special Interrogatories at 1-2.)

 Plaintiff contends that during a break in his August 6, 1991, deposition, which was taken in the context of plaintiff's previous federal lawsuit against the Township, Kassel informed him that he could never expect to be promoted. (Moody Dep. at 43.) The following exchange, regarding the alleged statement at issue herein, occurred between plaintiff and Kassel while plaintiff was being deposed in this case.

 Q: Did you take this alleged comment I said seriously?

 A: Yes. It was a comment I made note of.

 Q: Your lawyer was right there?

 A: Yes.

 Q: Why wouldn't you have told your lawyer that the lawyer for the chief has told you that you would not be promoted ...


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