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Dwyer v. Deutsche Lufthansa

February 13, 2007

DANIEL DWYER, PLAINTIFF,
v.
DEUTSCHE LUFTHANSA, AG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

MEMORANDUM AND ORDER

There are presently two motions pending before the Court. By letter motion, Plaintiff requests that Defendant Quantem Aviation Services, Inc. ("Quantem") submit to a deposition in New York, although Quantem is a New Hampshire corporation and the witness Plaintiff seeks to depose is located in New Hampshire [DE 115]. Defendant Quantem opposes that motion and has moved the Court for an Order, along with Defendant Deutsche Lufthansa, A.G. ("Lufthansa"), requiring Plaintiff to bear the costs of travel time and expenses Plaintiff's expert witness incurred in connection with that expert's deposition, which was noticed by Defendants [DE 120].

For the reasons set forth below, Plaintiff shall either travel to New Hampshire to depose the president of Defendant Quantem -- Mr. Calvino -- or pay the expenses of Mr. Calvino to travel to New York. Defendants shall compensate Plaintiff's expert, Mr. Lacek, at a rate of $175 per hour for traveling to and from his deposition, and shall reimburse him for reasonable out-of-pocket travel expenses.

I. BACKGROUND

This action arises out of a single vehicle accident on August 29, 2003. Plaintiff, the driver of the tractor trailer involved in the accident, alleges that the vehicle was loaded improperly by Lufthansa and Quantem at a facility in Dulles, Virginia. It is Plaintiff's contention that this alleged improper loading was the cause of the accident. The accident occurred along a highway in Maryland. This matter has a long procedural background and, other than the limited issue of this Court's personal jurisdiction over Defendant Quantem, discovery has been closed. Discovery on the single issue of jurisdiction was reopened by Judge Platt in his June 20, 2006 Memorandum and Order denying Quantem's motion for summary judgment. Familiarity with that Opinion is presumed for purposes of this Order.

In support of its motion for summary judgment, Quantem submitted an affidavit of its president, Salvatore C. Calvino stating, inter alia, that Quantem (i) has been a New Hampshire Corporation since its incorporation in 1995, (ii) did not conduct business in New York, (iii) was not licensed to conduct business in New York, (iv) did not own, possess, use or lease any real property in New York, (v) did not have any personal property in New York, (vi) did not maintain any offices or facilities in New York, and (vii) did not maintain a bank account in New York. Judge Platt denied Quantem's motion for summary judgment, holding that "further jurisdictional discovery" should be conducted to allow Plaintiff to explore "whether Defendant is 'doing business' in New York" (June 20, 2006 Mem. and Order at 2, 10).

Document discovery on the jurisdictional issue has been completed and all that remains is the deposition of Quantem's president. In a less than one page letter motion, Plaintiff requested "a hardship exemption pursuant to Fed. R. Civ. P. 30 (b)." Plaintiff asserts, without affidavit or any other support, "Defendant is a major corporation doing business in many states and had, until recently, conducted business in New York State. Conversely, the Plaintiff in this case is without funds." Based upon this assertion alone, Plaintiff contends he is entitled to an exception to the general rule requiring corporate defendants to be deposed in their place of residence. In response, Defendant argues that (1) Plaintiff here has not demonstrated the need for an exception to the general rule that defendant's deposition will be held in the district of his residence and (2) Plaintiff has traveled to Virginia and Maryland to conduct other depositions in this matter. Plaintiff has provided no information or documentation to demonstrate how his circumstances have now changed to such a degree that he is entitled to hardship exemption. Neither party has addressed the convenience of either location or litigation efficiency of conducting the deposition in either forum.

II. DISCUSSION

A. DEPOSITION OF CORPORATE REPRESENTATIVE

The issue raised by this motion, quite simply, is whether a corporate defendant seeking to dismiss the claims against it based on an assertion that the Court lacks personal jurisdiction over the corporation should be required to bring its representative to the jurisdiction to establish the lack of contacts.

Defendants' counsel is correct -- there is a presumption that depositions of corporate officers will take place "at the corporate officer's residence or the corporation's principal place of business." Silva Run Worldwide Limited, No. 96-CV-3231, 2003 WL 23009989, at *1 (S.D.N.Y. Dec. 23, 2003) (citing Buzzeo v. Bd. of Educ., 178 F.R.D. 390, 392 (E.D.N.Y. 1998)); see also Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989). This presumption is weakened "if the plaintiff was constrained in choosing the forum for litigation." Devlin v. Transp. Comm. Int'l Union, No. 95-CV-742, 2000 WL 28173, at *3 (S.D.N.Y. Jan. 14, 2000). The presumption can also "be overcome by a showing that factors of cost, convenience and litigation efficiency militate in favor of holding the deposition somewhere other than the district of the deponent's residence or place of business." Devlin v. Transp. Comm. Int'l Union, No. 95-CV-742, 2000 WL 28173, at *3 (S.D.N.Y. Jan. 14, 2000) (citing Doe v. Karadzic, No. 93-CV-878, 1997 WL 45515, at *3 (S.D.N.Y. Feb. 7, 1997)); Zurich Ins. Co. v. Essex Crane Rental Corp., No. 90-CV-2263, 1991 WL 12133 at *2 (S.D.N.Y. Jan. 29, 1991) ("presumption is not a strong one and operates primarily when other factors do not favor any particular site for the depositions").

Plaintiff does not -- and given the circumstance underlying this action cannot -- argue that New York was the only possible forum in which to purse this action. Accordingly, the presumption applies with full force and the remaining three factors to be evaluated for purposes of this motion are analyzed below.

1. Cost

Cost considerations which are relevant to the location of a deposition "may be looked at from two perspectives: the impact that the choice of site has on total costs and the relative ability of the parties to bear the expenses." Devlin,2000 WL 28173, at *3. Both Plaintiff's counsel and Defendants' counsel are based in New York. With regard to the place of deposition, therefore, there are two choices: either transport counsel for both sides to New Hampshire or transport the corporate officer witness to New York. In this instance, overall costs would be greater if the deposition were held in New Hampshire in terms of travel for counsel. See, e.g., Silva Run Worldwide Ltd., 2003 WL 23009989, at *1 (since "the lawyers of Plaintiff, Defendant and Defendants seven other co-defendants are located in New York City, as are all other documents upon which the deposition will be based," the deposition should take place in New York). In addition, the Plaintiff has the right to be present if he chooses and the cost for him to attend in New York are de minimis ...


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