Morris May v. International Business Associates, Inc. Mass Marketing, Inc. Ford Motor Company ( 1986 )

791 F.2d 934

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
MORRIS MAY, Plaintiff-Appellant
v.
INTERNATIONAL BUSINESS ASSOCIATES, INC.; MASS MARKETING,
INC.; FORD MOTOR COMPANY, Defendants-Appellees.

85-3732

United States Court of Appeals, Sixth Circuit.

4/17/86

AFFIRMED

S.D.Ohio

ORDER

BEFORE: LIVELY, Chief Judge, MERRITT and JONES, Circuit Judges.

1

May appeals pro se from the district court's order. denying May's motion to perpetuate testimony in this employment discrimination case. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

May filed complaints against the defendants alleging that they refused to hire him because he is an Orthodox Jew who wears a full beard and who refuses to work on Saturdays. The district court entered judgment for the defendants, and this Court affirmed those judgments on appeal. May filed petitions for reconsideration in those appeals.

3

While his petitions were pending, May filed a motion in the district court to perpetuate testimony through the use of interrogatories. The district court endorsed on the face of the motion that it was denied. May then appealed.

4

Under Rule 27(b), Federal Rules of Civil Procedure, the district court may allow the taking of depositions to perpetuate testimony in the event of further proceedings in the district court. The standard of review of the district court's decision is whether there was an abuse of discretion. Ash v. Cort, 512 F.2d 909, 912 (4th Cir. 1975). The party making the motion must show that there is a danger that the testimony will be lost by delay. Arizona v. California, 292 U.S. 341, 347-48 (1934). Mere allegations that witnesses might die or memories might fade are not sufficient to justify the granting of the motion. Ash, supra, at 913; accord, Lombard's, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 976 (11th Cir. 1985), cert. denied, ---- U.S. ----, 106 S.Ct. 851 (1986).

5

In the present case May's motion made absolutely no allegations that testimony might be lost by delay. Therefore, the district court did not abuse its discretion when it denied the motion.

6

The order of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.