United States District Court, D. New Jersey
COLLEEN M. READY, ESQUIRE, LISA A. GREEN, ESQUIRE, MARGOLIS EDELSTEIN, MOUNT LAUREL, NEW JERSEY, Attorneys for Plaintiff.
MARY B. ROGERS, ESQUIRE, JEFFREY ADAM GRUEN, DAY PITNEY LLP, PARSIPPANY, NEW JERSEY, Attorneys for Defendant.
NOEL L. HILLMAN, United States District Judge.
Presently before the Court is Plaintiff Michael Costa's Motion to Remand this
matter to New Jersey state court. For the reasons that follow, the Motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Michael Costa is a New Jersey resident and former employee of Defendant Verizon of New Jersey, Inc. (" Verizon" ). Prior to his discharge in 2009, Costa had been a Verizon employee for over twenty years. (Compl. ¶ 5.) During his term of employment, Costa allegedly became aware that a co-worker was performing his job duties while under the influence of drugs and alcohol. (Id. ¶ 6.) Costa allegedly further determined that the co-worker was improperly accessing personal information on customers' computers during his employment. (Id.) Costa believed his co-worker was unsuitable for his job and was endangering the safety of Verizon customers, and therefore reported him to his supervisor. (Id. ¶ 6, 7.) Costa was subsequently terminated from employment at Verizon. (Id. ¶ 7.) Costa presently contends that he was wrongfully discharged in retaliation for reporting his co-worker's conduct. (Id. ¶ 5.) Defendant Verizon, however, maintains that it terminated Costa because he made racial slurs at the workplace and had numerous prior instances of misconduct.
Plaintiff filed a complaint in New Jersey state court on June 28, 2010, alleging violations of the New Jersey Conscientious Employee Protection Act (" CEPA" ), N.J.S.A. 34:19-1, et. seq. On February 7, 2012, Plaintiff filed a First Amended Complaint in state court, in which he added claims for breach of contract, wrongful discharge, and breach of the covenant of good faith and fair dealing, which he based on Verizon's Code of Conduct employee manual. On May 16, 2012, Plaintiff once again amended his complaint. In his Second Amended Complaint, Costa supplemented his claims by basing them on both the Code of Conduct and the collective bargaining agreement between Verizon and his union. Defendant removed the case to federal court on June 6, 2012 alleging that the Court has federal question subject matter jurisdiction over disputes related to collective bargaining agreements because they are preempted by Section 301 of the federal Labor Management Relations Act (" LMRA" ). Plaintiff thereafter filed the instant Motion to Remand this matter back to New Jersey state court on July 3, 2012. Defendants responded in opposition on July 23, 2012. Plaintiff subsequently filed a Third Amended Complaint on November 21, 2012. In his Third Amended Complaint, Costa removed all references to the collective bargaining agreement, and once again solely bases his claims on the Verizon Code of Conduct, thereby attempting to eliminate the federal question from suit.
II. LEGAL STANDARD
The removability of a legal matter is determined from the plaintiff's pleadings at the time of removal. See Am. Fire & Cas. Co. v. Finn,341 U.S. 6, 14, 71 S.Ct. 534, 95 L.Ed. 702 (1951). It is well established that a defendant may remove a civil action filed in state court to federal court if the latter would have had original jurisdiction to hear the matter in the first instance. 28 U.S.C. § 1441(b); Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1991). The removing defendant bears the burden of establishing jurisdiction and compliance with all pertinent procedural requirements. Id. Once the case has been removed, however, the court may nonetheless remand it to state court if the removal was procedurally defective or subject matter jurisdiction is lacking. 28 U.S.C. § 1447(c). Furthermore, any doubts should be resolved in favor of remand. Boyer, 913 F.2d at 111.
Plaintiff avers that this Court lacks subject matter jurisdiction over the instant dispute, and that this matter should therefore be remanded back to state court. In the alternative, Plaintiff also argues that Defendant's removal was untimely. Defendant, on the other hand, asserts that, despite his stated intentions to withdraw his specific references to the collective bargaining agreement (as later manifested in the Third Amended Complaint), Costa's claims are nonetheless " substantially dependent on" and " inextricably intertwined with" the terms of the agreement, and this Court therefore retains jurisdiction. (Def.'s Resp. Opp'n at 9.) Defendant also asserts that its removal of this case to federal court was timely because it did not have a good faith basis to remove prior to the filing of Plaintiff's Second Amended Complaint on May 16, 2012.
A. Complete Preemption
Under the doctrine of complete preemption, the preemptive force of a federal law may " displace entirely any state cause of action." Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Ca., 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). As explained by the Supreme Court of the United States, the doctrine operates to " convert an ordinary state common-law complaint into one stating a federal claim[.]"
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).
One such instance of complete preemption occurs in the context of § 301(a) of the LMRA, which states in relevant part as follows:
Suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any District Court of the United States having jurisdiction over the parties.
29 U.S.C. § 185(a). In enacting § 301 of the LMRA, Congress vested jurisdiction in the federal courts over suits for contract disputes between employers and labor unions representing certain industries.
See Textile Workers v. Lincoln Mills,
353 U.S. 448, 456, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). In Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), the Supreme Court concluded that § 301 of the LMRA completely preempts any state-law cause of action for a violation of a collective bargaining agreement. Id. at 103. Subsequently, in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), the Court further extended the reach of federal preemption in this area, finding that the preemptive force of § 301 applied to tort, as well as contract, suits implicating " questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement." Id. at 211. Indeed, the Supreme Court has recognized that:
[T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action " for violation of contracts between an employer and a labor organization." Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.
Franchise Tax Bd., 463 U.S. at 23. In Lueck, however, the Supreme Court also made clear that " not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is pre-empted . . . [because] it would be inconsistent with congressional intent . . . to preempt state rules that . . . establish rights and obligations independent of a labor contract." Id. As such, a state law claim will be found to be preempted by § 301 if the claim is: (1) founded directly on rights created by a collective-bargaining agreement, or (2) substantially dependent upon an analysis of a collective bargaining agreement. Shanefelter v. U.S. Steel Corp., 784 F.Supp.2d 550, 558 (W.D. Pa. 2011) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)).
In the instant case, Plaintiff argues that, since he has removed references to the collective bargaining agreement in his pleadings, the federal question has likewise been removed from suit. Defendant, on the other hand, asserts that, despite the fact that Plaintiff no longer expressly refers to the collective bargaining agreement, this matter is nonetheless federally preempted because the resolution of Costa's claims is substantially dependent upon and inextricably intertwined with an analysis of the larger collective bargaining agreement.
We are not the first to confront this issue, as both our Court of Appeals and district courts within its appellate jurisdiction have previously addressed the intersection of federal and state law in employment contract disputes. See Johnson v. NBC Universal, Inc., 409 F. App'x 529 (3d Cir. 2010); Fischer v. G4S Secure Solutions U.S.A., Inc., No.Civ.A.10-6792, 2011 WL 3859742 (D.N.J. Aug. 31, 2011) (Simandle, J.); Cole v. Pathmark of Fairlawn, 672 F.Supp. 796 (D.N.J. 1987); Henderson v. Merck & Co., Inc., 998 F.Supp. 532, 536-540 (E.D. Pa. 1998). In Fischer, the plaintiff brought suit against his former employer and his union in state court. [WL] at *1. The employer removed the case to federal court on the basis that the union's presence in the suit mandated preemption. [WL] at *2. The union was subsequently dropped as a party and all claims pertaining to it were dismissed. Id. Accordingly, the only claim remaining against the employer was for an alleged breach of contract for failure to abide by
promises in the employee manual -- a contract the plaintiff argued was separate and apart from his collective bargaining agreement with the union. Id. More specifically, in the employee manual, the defendant covenanted to treat employees fairly and confidentially. [WL] at *3. The collective bargaining agreement, on the other hand, contained a provision stating the following:
This Agreement shall not be construed to infringe upon or impair any of the normal management rights of the Employer, which are not inconsistent with the provisions of this Agreement. Included among management rights is the authority to administer and/or manage the Employer's business, including but not limited to ... the right to hire, promote, demote, transfer, discipline, suspend or discharge employees for just cause.
[WL] at *2.
The Fischer Court began its analysis by noting that, under New Jersey law, an employee manual can create a contractual obligation independent of the collective bargaining agreement, but that preemption of the claim turns on " whether this independent contract claim is dependent upon and requires interpretation of the collective bargaining agreement."
[WL] at *3 (citing Woolley v. Hoffman LaRoche, Inc., 99 N.J. 284, 297, 307, 491 A.2d 1257 (1985)). In examining the plaintiff's contract claim, the court found that the collective bargaining agreement's broad language indicated that independent contracts were subject to modification, and the employee manual therefore had to be viewed alongside the collective bargaining agreement. Fischer, 2011 WL 3859742 at *4. More specifically, the court " would have to determine, among other things, whether the employee manual modified the provision of the collective bargaining agreement stating that the employer retained 'the right to hire, promote, demote, transfer, discipline, suspend or discharge employees for just cause[.]'" Id. (citing relevant provisions of collective bargaining agreement at issue). Accordingly, the court found that the plaintiff's employment manual contract claim was preempted by the LMRA.
Similarly, in Johnson v. NBC Universal, Inc., 409 F. App'x 529 (3d Cir. 2010), our Court of Appeals addressed the issue of federal preemption with respect to an employment contract dispute. The employee in Johnson was a member of a union that entered into a collective bargaining agreement with the television network, NBC. Id. at 530. The collective bargaining agreement authorized the union to negotiate with employers on behalf of its members, arrangements which incorporated NBC's internal Policy Against Harassment. Id. During his course of employment at NBC, Johnson came to believe that he was being harassed by his supervisor, and therefore filed suit in New Jersey state court alleging NBC breached its Policy Against Harassment. Id. NBC removed the case to federal court on the grounds that it was preempted by § 301 of the LMRA. Id. Johnson, however, sought to remand the matter to state court on the basis that NBC's Policy Against Harassment was a stand-alone contract separate and apart from the collective bargaining agreement. Id. In rendering its decision, the Third Circuit relied on specific language in both the specific contract and
collective bargaining agreement, which, when read jointly, indicated that the Policy Against Harassment could not be interpreted independently. Id. at 531. More specifically, the contract (called a " deal memo" ) contained the following phrase: " This deal memo and any applicable collective bargaining agreement (" CBA" ) shall constitute our full understanding and shall supersede any oral or written terms not specifically set forth on [ sic ] this memo or in its attachments." Id. The collective bargaining agreement, on the other hand, provided that the union and employer were to " resolve all complaints, disputes or questions as to the interpretation, application or performance of the CBA using procedures set forth in the CBA." Id. at 532 (internal quotations & alteration of text omitted). Based on this language, the Third Circuit held that Johnson's contract claim was preempted by the LMRA because " the [collective bargaining agreement], Deal Memos, and the Policy [Against Harassment] all must be interpreted [together] to determine whether the complaint procedures are mutually exclusive and, if so, which complaint procedure controls." Id. at 531.
Here, Defendant maintains that it lawfully terminated Costa because he made racial slurs and failed to adhere to Section 1.2 of the Verizon Code of Conduct, which provides that:
Verizon has a policy of zero tolerance for discrimination, sexual harassment or other unlawful harassment based on age, race, color, national origin, religion, gender, sexual orientation, disability or any other legally protected category under federal, state or local law. Harassment includes but is not limited to, racist, sexist or ethnic comments, jokes, gestures, or any action or statement creating an intimidating, hostile, or offensive work environment.
(Def.'s Notice of Removal at pg. 27 of 250; Verizon Code of Conduct § 1.2 (" Verizon Code of Conduct" ).) Costa's collective bargaining agreement between his union and Verizon highlights this " zero tolerance policy for discrimination" :
In a desire to restate their respective policies, neither [Verizon] nor the Union shall unlawfully discriminate against any employee because of such employee's race, color, religion, gender, age or national origin or because the employee is handicapped, a disabled veteran or a veteran of the Vietnam era.
(Defs.' Notice of Removal at pg. 28 of 247; Collective Bargaining Agreement (" CBA" ), Art. XIV, § 1.) By its own terms, the collective bargaining agreement seeks to " restate" -- and thereby incorporate -- Verizon's anti-discrimination policy provided in its Code of Conduct. Accordingly, the terms of the collective bargaining agreement and the Code of Conduct are not independent of one another, but instead together comprise the entirety of Verizon's policy against discrimination.
Moreover, although neither party raises this point, it is questionable whether the Code of Conduct could even be considered to be a valid contract, let alone one that is separate and apart from the collective bargaining agreement. Despite the fact that
neither Costa nor Verizon has attached the full text of the Code of Conduct to any filings made here in federal court, the record reflects that Verizon filed a brief before the state court in which it directly cited to the following relevant language in the Code of Conduct:
This Code of Conduct is not an employment contract. Adherence to the standards of the Code of Conduct is a condition of continued employment. This Code does not give you rights of any kind, and may be changed by the company at any time without notice. Unless governed by a collective bargaining agreement, employment with Verizon is " at will," which means that you or Verizon may terminate your employment for any reason or no reason, with or without notice, at any time.
(Def.'s Resp. Opp'n, Ex. D, 02/03/12 Br. Opp'n to Pl.'s Mot. Amend. Compl. at 12-13 (citing text of Verizon Code of Conduct)) (emphasis added). By its own terms, the Code directly provides that, if an employee is a member of a union, the collective bargaining agreement supersedes any independent contractual obligations between Verizon and that employee. The Code's text explicitly states that employment at Verizon is not proscribed by its terms, but rather is solely " governed by [the] collective bargaining agreement." (Id.) The above language further provides that the Code " is not an employment contract," that employees have no rights under its terms, and that employees may be terminated for any reason unless they are a party to a collective bargaining agreement. As such, the language of the Code of Conduct itself further supports a finding that it cannot be interpreted independently of the collective bargaining agreement.
In addition to the language of the Code of Conduct, the text of Costa's collective bargaining agreement also indicates that it preempts any individual employment contract that may exist. Specifically, the collective bargaining agreement details the grievance procedure that union members must follow when challenging their discharge on the grounds that they were terminated " without just cause." (CBA, Art. VI, § 1; Art. XI.) Notably, the grievance procedure provides that: " [N]othing in this Article shall in any manner affect the right of any individual employee . . . to present grievances directly to [Verizon] and to have them adjusted, provided such agreement is not inconsistent with this Agreement or with any applicable law." (Id. § 5.) (emphasis added). This contractual language is similar to the phrase relied on by the Fischer Court when it found that the collective bargaining agreement preempted the individual contract. Moreover, akin to the language of the collective bargaining agreement cited by the Third Circuit in Johnson, Costa's agreement likewise provided that: " Neither [Verizon] nor the Union will attempt by means other than the grievance procedure to bring about the settlement of any issue which is properly a subject for disposition through the grievance procedure." (Id. § 8.)
Therefore, in order to successfully adjudicate Costa's claims, joint consideration of the terms of the Code of Conduct and collective bargaining agreement will be necessary. With respect to Costa's breach of contract and breach of covenant claims, the protections against discrimination afforded by the Code of Conduct do not arise independently under New Jersey law, but rather are subsumed within the rights provided by the collective bargaining agreement. As to the wrongful discharge claim, Costa's termination will need to be viewed through the lense of the collective bargaining agreement. Specifically, it will need to be determined whether his alleged use of racial slurs and employee misconduct constituted " just cause" for Verizon's termination of his employment, whether Verizon utilized the proper procedure in discharging him, and whether he completed the appropriate steps of the grievance procedure prior to filing this lawsuit.
Based on the above, Costa's revised claims solely premised on the Verizon Code of Conduct are not separate and apart from an analysis of the terms of his collective bargaining agreement, but rather appear to be mutually dependent upon and intertwined with one another. Thus, despite Costa's efforts to eliminate the federal question from suit by removing all references to the collective bargaining agreement in his Third Amended Complaint, the Court finds that his contract and tort claims are nonetheless preempted by § 301 of the LMRA. Accordingly, federal law applies to Costa's contract and tort claims.
Plaintiff also avers that the Notice of Removal in this case was untimely because Defendant did not remove within thirty days of the filing of the First Amended Complaint, which added claims for breach of contract, wrongful discharge, and breach of the covenant of good faith and fair dealing. Notably, Plaintiff's claims in his First Amended Complaint were solely premised upon Verizon's Code of Conduct employee manual. Defendant, on the other hand, contends that its Notice of Removal was timely because a basis for removal did not exist until the filing of Plaintiff's Second Amended Complaint, in which Costa for the first time made reference to the collective bargaining agreement, thereby triggering the presence of a federal question upon which jurisdiction could be premised.
The procedure for removal is governed by 28 U.S.C. § 1446, which provides in relevant part as follows:
A defendant  desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which
such action is pending a notice of removal . . . containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
28 U.S.C. § 1446(a). Removal of an action initially filed in state court is only proper if the action " originally could have been filed in federal court." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Absent diversity of citizenship, the presence of a federal question is necessary to support removal. Id. The presence of a federal question is governed by the " well-pleaded complaint rule," which provides that federal jurisdiction is proper if a federal question is evident from the face of the plaintiff's pleading. Id.; see also Louisville & N. R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The Supreme Court has recognized, however, that the complete preemption doctrine is an " independent corollary" to the well-pleaded complaint rule.
See Caterpillar, 482 U.S. at 393. In other words, since the preemptive force of certain federal statutes is so great as to convert otherwise ordinary state law claims into federal actions, some matters may be removable on federal preemption grounds even if a federal question does not immediately appear on the face of the well-pleaded complaint. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987);
Franchise Tax Bd., 463 U.S. at 22; Caterpillar, 482 U.S. at 392-93.
Normally, a case must be removed within thirty days after the initial complaint is received by the defendant. 28 U.S.C. § 1446(b) (" The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant . . . of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]" ). If, however, the case cannot be removed based on the substance of the initial complaint, " a notice of removal may be filed within 30 days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). Significantly, in ruling on a motion to remand, the district court must focus on the version of the plaintiff's complaint at the time that the petition for removal was filed. Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (internal citations omitted).
Federal courts have not hesitated to remand a matter to state court on the basis that removal was untimely when a federal question manifested itself in a plaintiff's initial pleading in the form of federal preemption of a state law claim. See Flowerette v. Heartland Healthcare Ctr., 903 F.Supp 1042 (N.D. Tex. 1995); Benjamin v. AIG Ins. of Puerto Rico, No.Civ.A.08-74, 2009 WL 903816, at *3 (D.V.I. Mar. 30, 2009); Queen v. Dobson Power Line Const. Co., 414 F.Supp.2d 676, 680 (E.D. Ky. 2006). In Flowerette, the plaintiff initially filed a complaint based on state law in which she alleged that her former employer unlawfully prevented her from recovering disability benefits. Id. at 1043. The plaintiff subsequently amended her complaint to include claims based on the federal Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1001, et seq. -- an area of the law subject to the complete preemption doctrine. Upon the
filing of the amended complaint citing ERISA, the defendant removed the case to federal court on the basis of federal question jurisdiction. Id. at 1044. The district court, however, held that, even though the plaintiff did not specifically reference ERISA in her initial pleading, her claims in the original complaint nonetheless " related to" an employee benefit plan and were therefore preempted by ERISA at the initial pleading stage. As such, the court found that the defendant was required to file its notice of removal within thirty days of the date of the initial complaint because this was the point at which the presence of a federal question first became apparent to the defendant. Id. at 1045.
The logic of Flowerette is directly applicable here. As discussed at length above, Costa's state contract and tort claims are subject to the complete preemption doctrine as proscribed by § 301 of the LMRA. In this case, Plaintiff's initial Complaint was solely based on CEPA, and thus did not include a federal question upon which federal jurisdiction could be premised. On February 7, 2012, however, Costa filed his First Amended Complaint, which for the first time included claims for breach of contract, wrongful discharge, and breach of the covenant of good faith and fair dealing. At that point in time, Costa solely based his " new" claims on the Verizon Code of Conduct. It was not until the filing of Costa's Second Amended Complaint on May 16, 2012 that he actually referred to the collective bargaining agreement and his union in his pleadings. However, a closer review of the record in this case indicates that, even though Costa did not explicitly reference the collective bargaining agreement in his First Amended Complaint, Verizon knew he belonged to a union and was a party to a collective bargaining agreement at that time. Notably, after Costa sought leave to file his First Amended Complaint in state court, Verizon filed a Response in Opposition in which it expressly referenced Costa's union, the arbitration proceedings before the union steward prior to the initiation of this lawsuit, and the deposition testimonies of the relevant Labor Relations Manager and EEO Investigator. In fact, Verizon explicitly acknowledged in its brief that: " [t]he terms and conditions of plaintiff's employment with [Verizon] were governed by the CBA between the International Brotherhood of Electrical Workers, Local 827 and [Verizon]." (Def.'s Resp. Opp'n, Ex. D, 02/03/12 Br. Opp'n to Pl.'s Mot. Amend. Compl. at 2 n.1.) Moreover, Verizon attached to its opposition papers: (1) a copy of the arbitrator's opinion and award directly utilizing and discussing the grievance procedure set forth by Costa's collective bargaining agreement; and (2) Plaintiff's testimony during the arbitration proceeding in which he specifically discusses his union. (Id.) These filings therefore suggest that Verizon was clearly on notice of Plaintiff's union membership and collective bargaining agreement at the time of Plaintiff's First Amended Complaint.
Section 1446 is clear that, in order for a removal notice to be timely, it must be filed within thirty days of the date on which the defendant first ascertained that the case was removable based on " a copy of an amended pleading, motion, order or other paper." 28 U.S.C. § 1446(b). Although there is no appellate decision within this Circuit specifically defining " other paper" within the meaning of the statute, the district courts in the Third Circuit
have given the term an " embracive construction" to include a wide array of documents, including letter communications between counsel, deposition testimony, stipulations between the parties, answers to interrogatories, and transcripts. See Marchiori v. Vanguard Car Rental U.S.A., Inc., No.Civ.A.05-5685, 2006 WL 724445, at *2 (E.D. Pa. Mar. 17, 2006); Efford v. Milam, 368 F.Supp.2d 380, 384 (E.D. Pa. 2005) (citing cases in which deposition testimony, transcripts, answers to interrogatories, and correspondence between counsel constituted " other paper" ); Entrekin v. Fisher Sci. Inc., 146 F.Supp.2d 594, 613-14 (D.N.J. 2001) (discussing cases in which certain types of oral statements, including deposition and court transcriptions, have been found to be " other ...