United States District Court, D. Connecticut
ALGONQUIN GASOLINE, INC., an Illinois corporation, et al. Plaintiffs
PETROLEUM & FRANCHISE CAPITAL, LLC, a Delaware limited liability company, and PETROLEUM & FRANCHISE FUNDING, LLC, a Delaware limited liability company Defendants.
ORDER REGARDING PROTECTIVE ORDER ON LOCATION OF
A. BOLDEN, UNITED STATES DISTRICT JUDGE
are Illinois businesses and individuals who entered into a
Note and Security Agreement (the “Note”) in order
to borrow money from Defendant Petroleum & Franchise
Capital, LLC (“PFC”), to purchase a gas station
in Algonquin, Illinois. Compl., ECF No. 1, at ¶18.
Plaintiffs added Petroleum & Franchise Funding, LLC
(“PFF”) as a defendant in their First Amended
Complaint, alleging that PFC assigned the Note to PFF in
2008. First Am. Compl., ECF No. 53, at ¶22. In an oral
motion made during a telephonic status conference, Plaintiffs
sought a protective order requiring that the depositions of
Hemant Patel, Dipak Patel, Vishnu Patel, and Zahid Hameed,
all individual plaintiffs in this action, take place in
Chicago. In their supplemental briefing, plaintiffs argue
specifically that deposing the four individuals out of state
would be less burdensome to Plaintiffs and more economical
overall. Defendants argue that Plaintiffs have not
demonstrated the special circumstances required to overturn
the presumption that a plaintiff, who affirmatively selected
the forum, must bear the burden associated with discovery
reasons explained below, the motion is GRANTED. Plaintiffs,
however, must pay the reasonable airfare for Defendants'
counsel to travel to Chicago.
Federal Rules of Civil Procedure do not state categorically
the location where depositions are to take place. Rather,
under Rule 26(c), courts have broad discretion to alter the
place of a noticed deposition, upon good cause shown, to
protect a party from undue burden or expense. Buzzeo v.
Board of Educ., Hempstead, 178 F.R.D. 390, 392
(E.D.N.Y.1998) (“Courts retain substantial discretion
to designate the site of a deposition, ” despite the
fact that the party that notices the deposition
“usually has the right to choose the location”)
(internal quotations and citation omitted); Dove v.
Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992)
(“The grant and nature of protection is singularly
within the discretion of the district court.”).
general rule is that “a non-resident plaintiff who
chooses this district as his forum [is] to appear for
deposition in this forum absent compelling
circumstances.” Clem v. Allied Van Lines Int'l
Corp., 102 F.R.D. 938, 939 (S.D.N.Y. 1984);
Buzzeo, 178 F.R.D. at 392 (“Underlying this
rule appears to be the concept that it is the plaintiffs who
bring the lawsuit and who exercise the first choice as to the
forum. The defendants, on the other hand, are not before the
court by choice.”). However, if a plaintiff can
demonstrate “compelling circumstances” or
“extreme hardship, ” a court may allow a
plaintiff or her witnesses to be deposed elsewhere.
Clem, 102 F.R.D. at 939.
the general presumption that a plaintiff be deposed within
the forum she selected is “not applicable in a suit in
which plaintiff had little choice of forum.” Ambac
Assurance Corp. v. Adelanto Public Utility Authority,
No. 09-5087, 2012 U.S. Dist. LEXIS 64086, at *15-17 (S.D.N.Y.
May 7, 2012); Mill-Run Tours, Inc. v. Khashoggi, 124
F.R.D. 547, 550 (S.D.N.Y. 1989) (“[I]t is the
plaintiffs who bring the lawsuit and who exercise the first
choice as to the forum. … Where this factual premise
is attenuated, the presumption is weakest.”);
Imperial Chems. Indus., PLC v. Barr Lab., Inc., 126
F.R.D. 467, 472 (S.D.N.Y. 1989) (“[T]he rationale of
[the general rule] has little force in a case … where
the choice of forum is effectively dictated by the
defendant”). In Ambac, the Southern District
of New York held that the presumption in favor of holding
depositions at the defendant's residence was
“defeated” when plaintiff's choice of forum
had been “constrained” by a forum selection
clause. Id. at *15. In another case, the same court
found that a forum selection clause did not disrupt the
presumption, reasoning that “the fact that [plaintiff]
agreed to such a clause only supports the conclusion that its
officers should be required to appear in this forum for
deposition.” Dubai Islamic Bank v. Citibank,
N.A., 99-930, 2002 U.S. Dist. LEXIS 9794, at *45-46
(S.D.N.Y. May 28, 2002). In other words, this Court
has great discretion in assessing whether a forum selection
clause amounts to a significant constraint on the
plaintiff's choice of forum.
case, Plaintiffs argue that they had little choice of forum
because the Note that brought them to court stipulates that
“all actions or proceedings arising directly or
indirectly from or in connection with this Note ... shall, at
the Lenders' sole option, ” be brought in
Connecticut. Compl. Ex. 1, Note, ECF No. 1-1, at §30.
Furthermore, Plaintiffs argue that Defendant PFC did not
respond to a similar action filed in a New York court.
Rather, PFC filed a new lawsuit in Connecticut after the
plaintiffs moved for default judgment in the New York Court.
Pltf.'s Mem. Re: Depositions, ECF No. 50, at 4. Given
this history, the Court agrees that plaintiffs had few
alternatives when they elected to bring this case in
Connecticut, and that the presumption that they be deposed in
Connecticut should be disrupted.
also consider the “factors of cost, convenience, and
efficiency” in determining the location of depositions.
Ambac, 2012 U.S. Dist. LEXIS 64086 at *16. With
respect to cost and convenience, neither party has clearly
detailed the financial effects of the proposed deposition. At
the same time, plaintiffs make a compelling argument that the
cost and inconvenience involved with transporting four
Chicago-based deponents to Connecticut is greater than the
cost of transporting one attorney from Connecticut to
Chicago. See Arneauld v. Pentair, Inc., No. 11-3891,
2012 U.S. Dist. LEXIS 168185, at *30 (E.D.N.Y. Nov. 26, 2012)
(“[A]s to cost, the choice is between having counsel
for three parties travel to Minnesota, or having one witness
travel to New York and … weighs slightly in favor of
conducting [the] deposition in New York.”); Harrier
Techs., Inc. v. CPA Glob. Ltd., No. 12-167, 2014 WL
4537458, at *3 (D. Conn. Sept. 11, 2014) (calculating the
costs of deposition by comparing the cost of one
attorney's travel with the comparable costs for three
people). Finally, litigation efficiency does not dictate that
the four plaintiffs be deposed in Connecticut because the
Court can easily resolve discovery disputes by telephonic
conference if needed. See Arneauld, 2012 U.S. Dist.
LEXIS 168185 at *31 (“the situs of the
deposition has no [e]ffect on litigation efficiency” on
account of telephone conferencing).
Court also has the discretion to direct parties to share
costs to ameliorate the harshness of a protective order.
Harrier Techs., Inc. v. CPA Glob. Ltd., No.
3:12CV167 WWE, 2014 WL 4537458, at *3 (D. Conn. Sept. 11,
2014) (internal citations omitted) (“One means of
dealing with disputes caused by depositions … is
through orders providing that a party bear all or a portion
of expenses incurred because the deposition is held in the
locale chosen by that party.”). In this case, such
direction is appropriate. While the Defendants must depose
the individual plaintiffs in Chicago, Plaintiffs must
compensate defendants for the reasonable airfare of the
these reasons, Plaintiffs' oral motion for a protective
order is GRANTED, with the specification that Plaintiffs
compensate Defendants for the reasonable airfare expenses