Edelstein v. Lucas Brand Equity, LLC et al
RULING denying in part 31 Defendant Lucas' Motion to Quash and for Protective Order. Signed by Judge Joan G. Margolis on 5/1/2017. (Watson, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
STEVEN J. EDELSTEIN
LUCAS BRAND EQUITY, LLC,
HYD USA, LLC, and JAY LUCAS
16 CV 1353 (WWE)
DATE: MAY 1, 2017
RULING ON DEFENDANT LUCAS’ MOTION TO QUASH AND FOR PROTECTIVE ORDER
On August 9, 2016, plaintiff Steven J. Edelstein, a resident of Connecticut, commenced this
action against New York defendants Lucas Brand Equity, LLC [“LBE”], HYD USA, LLC [“HYD”], and
Jay Lucas (Dkt. #1), which Complaint was superseded by an Amended Complaint on September
27, 2016. (Dkt. #14). In his Amended Complaint, plaintiff alleges that defendants failed to ply
plaintiff in violation of federal and state wage and hour laws. (Id.). Specifically, plaintiff, who was
employed as the Chief Operating Officer of defendants LBE and HYD, alleges that defendants
improperly characterized plaintiff as an independent contractor, and in doing so, failed to pay
plaintiff wages in violation of the Connecticut Minimum Wage Act [“CMWA”](Count One); breached
the employment contract defendants had with plaintiff (Count Two); failed to pay plaintiff in
violation of the Fair Labor Standards Act [“FLSA”](Count Three); failed to pay plaintiff overtime
compensation in violation of the FLSA (Count Four); and wrongfully terminated plaintiff in violation
of the FLSA (Count Six). (Id.). Plaintiff also seeks declaratory and injunctive relief against all
defendants (Count Five). (Id.).1
On October 11, 2016, defendants filed their Answer and
Affirmative Defenses. (Dkt. #16).
On December 16, 2016, plaintiff filed a Motion for Leave to Amend Complaint and to Join Party
Defendant, in which he seeks to join Karen Ballou. (Dkts. ##19-20). This motion is pending before
Senior United States District Judge Warren W. Eginton.
On February 3, 2017, defendant Jay Lucas filed the pending Motion to Quash (Dkt. #31),2
and brief in support, in which Lucas seeks a protective ordered designating New York, New York,
as opposed to Hartford, Connecticut, as the appropriate place for his deposition. On March 3,
2017, plaintiff filed his brief in opposition. (Dkt. #42).3 On March 21, 2017, defendant Lucas filed
a letter confirming that the briefing was complete. (Dkt. #43). On April 13, 2017, Judge Eginton
referred this Motion to Quash to this Magistrate Judge. (Dkt. #48).
For the reasons stated below, defendant Lucas’ Motion to Quash and for Protective Order
(Dkt. #31) is denied in part.
In his brief, defendant Lucas argues that he should be deposed where he resides, which
is New York City, or, in the alternative, the deposition should take place by videoconference. (Dkt.
#31, Brief at 2-3). Plaintiff counters that travel for plaintiff and his counsel to New York City for
a deposition, along with the expense associated with renting a conference room, would impose a
financial burden on plaintiff. (Dkt. #42, at 2).
“The Federal Rules of Civil Procedure do not state categorically the location where
depositions are to take place.” Ward v. LeClarie, No. 9:07-CV-0026 (LEK)(RFT), 2008 WL 1787753,
at *4 (N.D.N.Y. Apr. 17, 2008)(footnote omitted). However, “[a]s a general rule, the party that
notices the deposition ‘usually has the right to choose the location.’” Aztec Energy Partners, Inc.
v. Sensor Switch, Inc., No. 3:07 CV 775(AHN)(HBF), 2008 WL 747660, at *2 (D. Conn. March 17,
2008), quoting Buzzeo v. Bd. of Educ., 178 F.R.D. 390, 392 (E.D.N.Y. 1998). Courts, however,
“retain substantial discretion to designate the site of a deposition,” Buzzeo, 178 F.R.D. at 392
Attached as Exh. A is a copy of the Re-Notice of Deposition, dated January 13, 2017.
Attached to plaintiff’s brief in opposition is another copy of the Re-Notice of Deposition.
(citations & internal quotations omitted), and when exercising such discretion, the court considers
three factors: cost, convenience, and litigation efficiency. Brockway v. Veterans Admin. Healthcare
Sys., No. 3:10 CV 719 (CSH), 2011 WL 1459592, at *5 (D. Conn. Apr. 15, 2011)(citations omitted).
In his motion, defendant Lucas does not argue that travel to Hartford will impose upon him
an undue financial hardship, but rather that his deposition should be held in New York, the location
of his residence. Defendant Lucas is correct that there exists “a presumption that the deposition
of a defendant should be held in the district of his residence[,]” Dagen v. CFC Holdings Ltd., No.
00 Civ. 54682 (CBM), 2003 WL 21910861, at *2 (S.D.N.Y. Aug. 11, 2013)(multiple citations &
internal quotations omitted); however, plaintiff may rebut this presumption by satisfying his
“affirmative burden of demonstrating ‘peculiar’ circumstances which compel the court to order the
[defendant’s] deposition to be held in an alternate location.” Id. (citations omitted). “Undue
hardship is among these factors for consideration, which would include burdensome travel costs
and other expenses.” Ward, 2008 WL 1787753, at *4 (multiple citations omitted). In this case,
plaintiff has satisfied such burden.
In his Amended Complaint, plaintiff alleges that defendants failed to pay plaintiff through
the last period of his employment (Dkt. #14), and, as plaintiff testified at his hearing on his Motion
for Prejudgment Remedy held before this Magistrate Judge on February 23, 2017 (Dkt. #37; see
Dkts. ##26, 35, 38), plaintiff has remained unemployed. Based on plaintiff’s current circumstance,
the costs and expenses of taking defendant Lucas’ deposition out of state will pose an undue
hardship on plaintiff and is sufficient to satisfy plaintiff’s affirmative burden. Additionally, litigation
efficiencies favor a deposition held in Connecticut, the state in which this action was commenced.4
That said, a more cost effective alternative exists. Defendant Lucas has agreed to have his
deposition taken by videoconference, which will also serve to alleviate plaintiff of the burdensome travel
costs and expenses. (See Dkt. #31, at 1).
Accordingly, for the reasons stated above, defendant Lucas’ Motion to Quash and for
Protective Order (Dkt. #31) is denied in part.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the standard
of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72; and Rule 72.2 of
the Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless
reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within fourteen
calendar days after service of same); FED. R. CIV. P. 6(a) & 72; Rule 72.2 of the Local Rules
for United States Magistrate Judges, United States District Court for the District of Connecticut;
Impala v. United States Dept. of Justice, ____ F. App’x ___, 2016 WL 6787933 (2d Cir. Nov. 15,
2016)(summary order)(failure to file timely objection to Magistrate Judge’s recommended ruling
will preclude further appeal to Second Circuit); cf. Small v. Sec'y, H&HS, 892 F.2d 15, 16 (2d Cir.
1989)(failure to file timely objection to Magistrate Judge's recommended ruling may preclude
further appeal to Second Circuit).
Dated at New Haven, Connecticut this 1st day of May, 2017.
/s/ Joan G. Margolis, USMJ____________
Joan Glazer Margolis
United States Magistrate Judge
In some of the cases cited, there was a substantial distance between the two locations suggested
by the parties – Georgia and Indiana instead of Hartford, Aztec Energy, 2008 WL 747660, at *2; Hong
Kong instead of New York City, Dagen, 2003 WL 221010861, at *2. In this case, only 125 miles separate
Hartford and New York City, which makes travel between the two cities relatively simple, by interstate or
train. Counsel would do well in the future not to burden the Court with discovery matters that trained
professionals acting reasonably ought to be able to resolve between themselves.
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