Algonquin Gasoline, Inc. et al v. Petroleum & Franchise Capital, LLC

Filing 57

ORDER regarding protective order on location of depositions(see 49 Response filed by Algonquin Gasoline, Inc., 50 Response). Plaintiffs' oral motion for a protective order requiring certain depositions to occur in Chicago is granted, with the specification that Plaintiffs must pay the reasonable airfare for Defendants counsel to travel to Chicago. Signed by Judge Victor A. Bolden on 11/27/2016.(Ghosh, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

ALGONQUIN GASOLINE, INC.,
an Illinois corporation, et al.
Plaintiffs
v.
PETROLEUM & FRANCHISE CAPITAL,
LLC, a Delaware limited liability company,
and PETROLEUM & FRANCHISE FUNDING,
LLC, a Delaware limited liability company
Defendants.

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No. 3:16-cv-00017-VAB

ORDER REGARDING PROTECTIVE ORDER ON LOCATION OF DEPOSITIONS
Plaintiffs 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 there.
For the reasons explained below, the motion is GRANTED. Plaintiffs, however, must pay
the reasonable airfare for Defendants’ counsel to travel to Chicago.

The 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.”).
The 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.
Additionally, 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.
In this 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.
Courts 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).
The 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 deposing attorney.
For these reasons, Plaintiffs’ oral motion for a protective order is GRANTED, with the
specification that Plaintiffs compensate Defendants for the reasonable airfare expenses associated
with one attorney’s travel to Chicago from Connecticut.

SO ORDERED at Bridgeport, Connecticut this 27th day of November, 2016.
__/s/__Victor A. Bolden________________
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE