McClure v. Prisoner Transportation Services of America, LLC

[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. [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. [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. [7] 8 IT IS SO ORDERED. 9 Sheila K. Oberto Dated: November 8, 2019 /s/ . 10 UNITED STATES MAGISTRATE JUDGE