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Mee Jin-Jo v. Jpmc Specialty Mortgage LLC

March 29, 2011

MEE JIN-JO,
PLAINTIFF,
v.
JPMC SPECIALTY MORTGAGE LLC, DEFENDANT.
JPMC SPECIALTY MORTGAGE LLC, THIRD-PARTY PLAINTIFF,
v.
ADVANCED MOVING & STORAGE, LLC, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Defendant has moved to compel plaintiff to appear for a deposition in Buffalo, New York and to provide responses to its request for production of documents [188] and plaintiff has moved to compel responses to her discovery demands [198]. These motions, being non-dispositive, have been referred to me by Hon. Richard J. Arcara for a decision and order [68].*fn1 For the following reasons, I order that defendant's motion be granted in part and denied in part, and that plaintiff's motion be denied.

BACKGROUND

I assume the parties' familiarity with the underlying facts and procedural history in this case, which is set forth in Judge Arcara's August 5, 2009 Decision and Order [67]. Defendant has since filed a Third-Party Complaint and has obtained a Clerk's entry of default against the third-party defendant, Advanced Moving & Storage, LLC [182].

ANALYSIS

A. Defendant's Motion to Compel Plaintiff's Deposition

Defendant seeks to compel plaintiff to appear for her deposition in Buffalo because this is where she elected to commence the action. Flickinger Declaration [188-1], ¶9. In response, plaintiff argues that the purpose of the deposition is to "harass [her] financially" because she resides in Detroit, Michigan, and lacks the resources to travel for the deposition. Plaintiff's Response [193], pp. 2-3. Alternatively, plaintiff suggests that her deposition occur by written questions or by telephone, defendant pay her reasonable travel expenses to Buffalo, or the deposition occur in Michigan where she resides. Id., p. 1.

"[T]here is no absolute rule as to the location of the deposition of a nonresident plaintiff". Normande v. Grippo, 2002 WL 59427, *1 (S.D.N.Y. 2002). "Rather, courts must strive to achieve a balance between claims of prejudice and those of hardship, always guided by the proposition that the Federal Rules of Civil Procedure 'shall be administered to secure the just, speedy and inexpensive determination of every action.'" Id. (quoting Rule 1).

Among the alternatives offered by plaintiff, I find her suggestions that her deposition occur by telephone or written questions the most persuasive. Both alternatives are recognized by the Federal Rules. See Fed. R. Civ. P. ("Rules") 30(b)(4) and 31(a)(1).

Defendants have failed to identify any source of concern with deposing plaintiff telephonically or by written questions. Therefore, given plaintiff's financial constraints, I find that conducting her deposition by telephone or by written questions, are, at least preliminarily, reasonable alternatives. See Cunningham v. St. Bonaventure University and its Franciscan Institute, 2010 WL 4628535, *5 (W.D.N.Y. 2010) (Curtin, J.) (ordering plaintiff, who resided in Illinois, to be deposed telephonically, where plaintiff had financial limitations and there was no "showing as to the likelihood of procedural or mechanical difficulties beyond the ordinary problems associated with telephone depositions"). I will permit defendant to select which of these two alternatives it prefers.

If defendant elects to proceed with a telephonic deposition, "plaintiff shall be required to make arrangements to have an individual qualified to take oaths in [Michigan] (such as a Notary Public) available at the appropriate time and place to administer the oath required by Fed.R.Civ.P. 28(a), and defendant shall bear the expenses related to recording the testimony by stenographic or other accepted means at defense counsel's offices". Cunningham, 2010 WL 4628535 at *6. To limit any communication difficulties, both parties shall use land line telephones. I encourage the parties to cooperate concerning the mechanics of the deposition. See Id.at *4 ("courts and parties have come up with a number of creative ways to address . . . concerns" with telephonic depositions (citing cases)).

If this proves unsuccessful, defendant may renew its motion to compel plaintiff's deposition in Buffalo. See Robert Smalls Inc. v. Hamilton, ...


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