McClure v. Prisoner Transportation Services of America, LLC ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 TERRY RENEE MCCLURE, et al., No. 1:18-cv-0176-DAD-SKO 10 Plaintiffs, ORDER GRANTING UNOPPOSED 11 v. MOTION FOR PROTECTIVE ORDER 12 PRISONER TRANSPORTATION (Doc. 96) SERVICES OF AMERICA, LLC, et al., 13 Defendants. 14 15 16 I. INTRODUCTION 17 On October 22, 2019, Defendants Prisoner Transportation Services of America (“Prisoner 18 Transportation”) and Cleveland Wheeler (“Wheeler”) filed a motion for protective order. (Doc. 19 96.) Pursuant to Local Rule 251, the parties’ Joint Statement re Discovery Disagreement was to be 20 21 filed no later than November 6, 2019. See E.D. Cal. L.R. 251(c). The parties failed to file a Joint 22 Statement by the deadline, and Plaintiffs have not filed an opposition to the motion. (See Docket.) 23 The motion is therefore deemed unopposed. 24 Because the parties failed to file a Joint Statement, and the Court deems the matter suitable 25 for decision without oral argument, the hearing currently set for November 13, 2019, is VACATED. 26 See E.D. Cal. L.R. 251(a). 27 28 For the reasons that follow, the Court GRANTS Defendants’ motion. 1 II. DISCUSSION 2 Plaintiff Terry McClure (“McClure”) noticed the deposition of Defendant Cleveland 3 Wheeler to take place on November 5, 2019 in Sacramento, California. (See Doc. 96 at 2.) 4 Defendants represent that Wheeler is employed and resides in Florida and is no longer employed 5 by Prisoner Transportation, and is “precluded from traveling across the country to have his 6 7 deposition taken in Sacramento, California.” (Id.) Defendants request a protective order that 8 requires Wheeler’s deposition to be taken at a location within the Middle District of Florida. (Id.) 9 The Court previously extended the non-expert discovery deadline to December 16, 2019, for the 10 limited purpose of two depositions, including Wheeler’s. (Doc. 99 at 2.) 11 The noticing party generally has discretion where to set a deposition, “subject to the power 12 of the courts to grant a protective order designating a different location.” Willis v. Mullins, No. CV 13 F 04 6542 AWILJO, 2006 WL 302343, at *5 (E.D. Cal. Feb. 8, 2006) (quoting Philadelphia 14 15 Indemnity Ins. v. Federal Ins. Co., 215 F.R.D. 492, 495 (E.D. Pa. 2003)). However, “[c]ourts 16 presume that a defendant’s deposition will proceed at his place of residence, business or 17 employment.” Id.; see Grey v. Continental Marketing Assocs., 315 F.Supp. 826, 832 (N.D. Ga. 18 1970) (“[T]he cases indicate that it is presumed that a defendant will be examined at his residence 19 or at his place of business or employment; if another place is named and defendant files a timely 20 objection, the objection should be sustained absent some unusual circumstance to justify putting 21 the defendant to such inconvenience.”). 22 23 If the parties cannot agree on a location for a deposition, a protective order may be obtained. 24 Fed. R. Civ. P. 26(c). The Court has broad discretion to determine the appropriate location for a 25 deposition. Willis, 2006 WL 302343, at *5. “Although a presumption exists to depose a defendant 26 at his residence or place of business, ‘a number of factors serve to dissipate the presumption and 27 may persuade the Court to require the deposition to be conducted in the forum district or some other 28 1 place[.]” Id. (quoting Turner v. Prudential Ins. Co. of America, 119 F.R.D. 381, 383 (M.D.N.C. 2 1988)). 3 The factors which a court may consider include: (1) the parties’ convenience and relative 4 hardships to attend the designated location; (2) cost of transportation and lost work to the defendant; 5 (3) expense and inconvenience of moving voluminous documents; (4) the location of the parties’ 6 7 counsel; (5) whether the defendant is a corporation whose employees often travel; (6) whether 8 significant discovery disputes may arise and judicial economy favors resolution by the forum court; 9 and (7) whether the “appropriate adjustment of the equities favors a deposition site in the forum 10 district.” Id. at *6 (citing Turner, 119 F.R.D. at 383). 11 Here, Defendants have shown that Wheeler’s deposition should take place in the Middle 12 District of Florida. Wheeler resides in Florida and is employed there. (See Doc. 96 at 2.) The 13 parties’ counsel are all located in California—thus no party’s counsel will be unfairly 14 15 inconvenienced by traveling to Florida; the cost of transportation and lost work to Wheeler would 16 likely be significant; the defendant being deposed is an individual and not a corporation, and 17 Wheeler is no longer employed by Prisoner Transportation; and no other significant considerations 18 weigh in favor of Wheeler’s deposition occurring in California. See Willis, 2006 WL 302343, at 19 *6. 20 Further, Plaintiffs failed to file an opposition to Defendants’ motion and have not shown 21 any reason why the deposition should take place in California as opposed to Wheeler’s place of 22 23 residence in Florida, and have not shown any “unusual circumstance to justify putting [Wheeler] 24 to such inconvenience.” See Grey, 315 F.Supp. at 832. Accordingly, Plaintiffs have not overcome 25 the presumption in favor of Wheeler’s deposition taking place in the Middle District of Florida. 26 See Willis, 2006 WL 302343, at *5. 27 28 1 III. CONCLUSION AND ORDER 2 Accordingly, IT IS HEREBY ORDERED: 3 1. Defendants’ motion for protective order, (Doc. 96), is GRANTED. 4 2. Defendant Cleveland Wheeler’s deposition shall take place at a location within the 5 Middle District of Florida. 6 7 8 IT IS SO ORDERED. 9 Sheila K. Oberto Dated: November 8, 2019 /s/ . 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28