The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion to compel defendant's deposition under specified conditions (Case No. 09CV858, hereinafter the " '858 Case" or "this case," Docket No. 26). This is identical to motions in another case bearing this name (Sloniger v. Deja, Case No. 09CV984S*fn1 , hereinafter the " '984 Case," Docket Nos. 21, 23*fn2 ). Both cases had identical briefing schedules for these motions, with responses due October 26, 2010, and any replies by November 2, 2010, and all motions being deemed submitted, initially without oral argument, on November 2, 2010 ('858 Case, Docket No. 27; '984 Case, Docket No. 22). Upon review of the papers in this case and in the '984 Case, the Court scheduled oral argument for November 16, 2010 ('858 Case, Docket No. 31; '984 Case, Docket No. 27). Following that argument, the Court reserved decision after defendant Deja reported on whether he traveled to the United States following the accident at issue in these cases, ultimately until the Court received Deja's affidavit regarding his travels to this country.
Both motions seek an Order compelling the deposition of defendant Sigmund Deja (also spelled "Siegmund" in both parties' papers) in this District, to have Deja appear at a deposition in Germany with plaintiff's travel expenses to be borne by Deja's insurer or to have Deja's Answer stricken. Plaintiff cited the New York CPLR as the basis for her motion, but similar relief is available under Federal Rule of Civil Procedure 37.
This Order will consider the motions in both cases.
This is a removed diversity action arising from an automobile accident in Niagara County, New York. According to the removal notice ('858 Case, Docket No. 1), plaintiff is a New York resident, defendant Deja is a German citizen, and defendants Road Bear RV and Road Bear International are California corporations (id. ¶¶ 9-12), and the alleged damages exceed $75,000 (id. ¶ 14). On May 27, 2009, defendant Deja operated a leased recreational vehicle (Deja rented the recreational vehicle from defendants Road Bear RV and/or Road Bear International) that allegedly ran a stop sign hitting a sports utility vehicle operated by Edward Sloniger. Mr. Sloniger apparently died on impact. Plaintiff Sharon Sloniger, sitting in the passenger seat, was seriously injured in the accident. Deja's wife, Leokadia, also was killed in the accident and Deja's son, Sebastian, was also injured. (Id. ¶ 19; see generally id., Ex. A2, state Complaint).
Each defendant separately removed the state court action to federal court ('858 Case by Deja; '984 Case by Road Bear RV), hence the two case numbers under the Sloniger v. Deja name. Later, the estate of Edward Sloniger sued Deja and others for his wrongful death and injuries arising from this accident, which also was removed to this Court from state court, Reed as Admin. of Sloniger v. Deja, et al., Case No. 10CV379.
After motion practice regarding service of Deja ('858 Case Docket Nos. 2, 12; see also id., Docket No. 1), a Scheduling Order was entered in each case ('858 Case, Docket No. 15; '984 Case, Docket No. 14). Under both cases, plaintiff's expert disclosure was due by January 6, 2011, defense expert disclosure by February 7, 2011, motions to compel discovery by February 8, 2011, and discovery completed by March 8, 2011 ('858 Case, Docket No. 15; '984 Case, Docket No. 14; see '984 Case, Docket No. 25, Pl. Atty. Aff. ¶ 15).
Plaintiff's Motion to Compel
Plaintiff seeks to depose Deja either here or in Germany at his insurer's expense. Pretrial conferences were held on June 21 and July 14, 2010, to discuss the issues involved in deposing Deja ('858 Case, Docket Nos. 24, 25). In this motion, plaintiff alleges that Deja "has engaged in a pattern and practice of delay with respect to the scheduling and completion of party depositions herein" ('858 Case, Docket No. 26, Pl. Atty. Aff. ¶ 2). Deja's private counsel stated that Deja was only available for deposition in Germany, while Deja's insurer refused to pay reasonable travel expenses plaintiff will incur in conducting that deposition there (id. ¶ 5). Plaintiff contends that Deja has not presented any reasonable explanation for the failure to date to schedule this deposition (id. ¶ 6). Nevertheless, plaintiff proceeded to notice Deja's deposition for August 26, 2010, in Buffalo, New York, but that deposition did not take place (id. ¶ 15, Ex. E). Plaintiff's counsel stated in oral argument that the deposition did not take place because of the dispute as to which party would bear the expense of a trans-Atlantic examination. Plaintiff takes the position that Deja has to present himself in this District for this deposition, or, failing that, his insurer should pay the reasonable travel expenses to Germany to conduct that deposition there (id. ¶ 7).
After citing New York State cases (id. ¶¶ 8-9), plaintiff argues that under federal practice a non-resident defendant's deposition has been held in the venue of the federal action (id. ¶ 10, citing Dwyer v. Deutsche Lufthansa AG, No. CV 04-3184, 2007 U.S. Dist. LEXIS 9806 (E.D.N.Y. Feb. 13, 2007) (Tomlinson, Mag. J.) (holding that plaintiff either travel to New Hampshire to depose defendant's president or pay his cost to come to New York to be deposed, id. at *2), especially when defendant claims that he could not afford to travel but had traveled to the United States prior to plaintiff's deposition notice (id. ¶ 11, citing United Bank for Africa PLC v. Coker, No. 94-CIV 0655, 2003 U.S. Dist. LEXIS 1008 (E.D.N.Y. Jan. 24, 2003) (denying Nigerian defendant's request to conduct deposition in Nigeria where he was represented by New York counsel and all prior litigation in that case occurred in New York). She also argues that federal courts have ordered defendants to be deposed live rather than appear for a telephonic examination (id. ¶ 12, citing Gagasoules v. MBF Leasing LLC, No. 08-CV-2409, 2009 U.S. Dist. LEXIS 119001 (E.D.N.Y. Dec. 22, 2009) (remanding case to Magistrate Judge to determine why plaintiffs' deposition could not occur by video conference)).
Plaintiff in this case argues that her choice of forum was constrained, hence limiting her to this venue (id. ¶ 13).
Deja responds that he has a medical excuse that precludes his travel to the United States; he suffers from post-traumatic stress disorder and depression with mourning sorrow ('858 Case, Docket No. 28, Def. Atty. Decl. ¶ 2; see id. Ex. A (letter, in German and translated, from Deja's doctor)). He argues that travel to this country would present significant stress and Deja's eight-year-old son, Sebastian, needs Deja to remain at home (id.). Deja also argues that plaintiff recognized this undue hardship in her motion papers to preclude Deja's examination in the United States (id. ¶ 3; cf. '858 Case, Docket No. 26, Pl. Atty. Aff. ¶ 6).
Deja next contends that usually a non-resident defendant is deposed where he resides and the parties are responsible to bear their own respective costs for conducting their discovery under the American rule ('858 Case, Docket No. 28, Def. Atty. Decl. ¶ 4; '858 Case, Docket No. 29, Def. Memo. at 2-3, 3-5). Under the American rule, each party bears its own litigation costs, including its discovery expenses, see, e.g., Dodge-Regupol, Inc. v. Rb Rubber Prods., No. 3:06-CV-236, 2010 U.S. Dist. LEXIS 31838, at *12 (M.D. Pa. Mar. 31, 2010), in the absence of claims that the opponent acted in bad faith or filed an oppressive lawsuit, see F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 129 (1974). Deja concludes that if plaintiff wants to depose him she should do so at her own expense ('858 Case, Docket No. 29, Def. Memo. at 3-4). Deja found New York State precedent against imposing the travel expenses for a foreign party's deposition upon the inquiring party (id. at 4, citing Longo v. Armor Elev. Co., 278 A.D.2d 127, 129, 720 N.Y.S.2d 443, 444 (1st Dep't 2000)).
Alternatively, Deja suggests, if plaintiff cannot afford to depose him in Germany, that he be examined by video deposition, acknowledging the Court's discretion to direct where a deposition may be taken (id. at 5-6).
In a reply filed in the '984 Case ('984 Case, Docket No. 25), plaintiff's attorney argues that Deja's purported PTSD is a "calculated gambit seeking to delay discovery of this matter until" plaintiff (a cancer survivor now in remission) "possibly expires," and, comparing the parties' conditions, argues that Deja's claimed ailment "pales in significance" to plaintiff's (id., Pl. Atty. Aff. ¶¶ 5-6). Plaintiff argues that there is no support for Deja's "so-called" doctor rendering his conclusory diagnosis of PTSD absent proof to support that conclusion (id. ¶ 7), noting that this condition does not preclude Deja's testimony in Germany or by video conferencing (id. ¶ 9). If Deja is to pursue this argument, plaintiff requests his medical, psychiatric, and psychological records and the right to retain an expert to oppose Deja's request not to travel to be deposed (id. ¶ 10). Plaintiff next points to Deja's patent application in this country and, upon information and belief, plaintiff believes that Deja traveled to the United States to pursue this application; if he able to appear for that application, then he should be able to come here to be deposed in this case (id. ¶ 14). Plaintiff's attorney filed a further affidavit regarding the patent application ('984 Case, Docket No. 26, Ex. A; see also id., Docket No. 30, Ex. A). The patent has two applicants (see id.) and plaintiff only alleges upon information and belief that Deja must have traveled to this country to apply.
As for the site for the deposition, plaintiff argues that the general rule that non-resident parties are deposed in their residence has exceptions, noting in particular that corporate defendants are frequently deposed outside of the principal place of business ('984 Case, Docket No. 25, Pl. Atty. Aff.¶¶ 16, 17).
Finally, plaintiff seeks an extension of the discovery schedule (id. ¶ 15). Plaintiff also seeks an Order that Deja be compelled to travel to Buffalo, New York, within 90 days to be deposed in these cases or that the deposition occur in Germany at Deja's insurer's expense. Alternatively, if the Court orders a video deposition, plaintiff seeks an opportunity to review Deja's medical and psychological records prior to that deposition. She also seeks production of Deja's passport use information from the United States government. (Id. at ninth to tenth unnumbered pages, Wherefore clauses.)
Deja, in his reply, opposes references to this patent application ('984 Case, Docket No. 31, Def. Atty. Decl. ¶¶ 3, 4), arguing that there was no proof that Deja traveled here to pursue this application or to contact New York City patent attorneys about it (id. ¶ 5).
During oral argument, one issue arose as to whether Deja in fact traveled to this country after the accident. His counsel was to provide a status report by November 30, 2010, on that question. Deja's counsel then reported that Deja did not travel to the United States since the accident ('858 Case, Docket No. 35, Reeb letter). Plaintiff's counsel, by letters, complained that Deja's counsel should not be allowed to report this information so informally, urging this Court not to consider the letter or the statements therein until an affidavit or affirmation is filed ('858 Case, Docket Nos. 36, 37, McGillicuddy letters). The Court then ordered Deja to submit an affidavit on this question by December 20, 2010 ('858 Case, Docket No. 38), which he did on December 2, 2010 ('858 Case, Docket No. 39, filed Dec. 6, 2010), stating that he had not returned to the United States since May 27, 2009 (id. ¶ 3). Plaintiff then objected to this affidavit as filed since (a) it contains an electronic signature, cf. W.D.N.Y. Administrative Procedures for Electronic Case Filing sec. 2.g.(i) (rev. Dec. 1, 2007)*fn3 , (b) it did not contain a notarization, and (c) it had no certification of the translation, cf. 28 U.S.C. § 1827 ('858 Case, Docket No. 41, McGillicuddy letter, Dec. 8, 2010). She ...