Everlast World's Boxing Headquarters Corporation v. Ringside, Inc. et al

Filing 155

MEMORANDUM AND ORDER granting 146 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 3/11/15. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EVERLAST WORLD’S BOXING
HEADQUARTERS CORPORATION,

)
)
)
Plaintiff,
)
)
RINGSIDE, INC., et al.,
)
)
Defendants.
)
___________________________________ )

Case No.: 13-2150-CM-KGG

ORDER ON MOTION FOR PROTECTIVE ORDER
Now before the Court is Plaintiff’s Motion for Protective Order (Doc. 146),
seeking an Order rescheduling the deposition of Neil Morton to a mutually
agreeable time and to occur in New York City, New York. Having reviewed the
submissions of the parties, the Court GRANTS Plaintiff’s motion.
FACTS
The facts of this case have been summarized numerous times as a result of
the parties’ contentious approach to the discovery process. (See Doc. 151, at 1-2;
see also Doc. 133.)
The present action was filed on July 9, 2012, in the
United States District Court for the Southern District of
New York. Claims were asserted against the various
Defendants for breach of contract, trademark
infringement, false designation of origin and unfair
competition, trademark dilution, and unjust enrichment.
(Doc. 1.) In August 2012, Defendants moved to dismiss
the Complaint or, in the alternative, transfer it to the
District of Kansas. (Doc. 6.)
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Defendant Ringside filed Suggestions of
Bankruptcy in November 2012, in the United States
Bankruptcy Court for the District of Kansas. (Doc. 17.)
This triggered an automatic bankruptcy stay. The present
action was transferred to the District of Kansas on March
13, 2013. (Doc. 22.)
Judge Berger of the United States Bankruptcy
Court for the District of Kansas denied the Motion to
Enforce Automatic Stay regarding Plaintiff’s claims
against Defendants RAL and Combat, by Order dated
September 27, 2013. This permitted those counts to go
forward in this Court. (See Doc. 37, at 7.) Plaintiff filed
a Motion to Amend the Complaint (Doc. 36) on
December 2, 2013, which was granted on December 23,
2013 (Doc. 41).
(Doc. 71, at 1-2; Doc. 112, at 1-2; Doc. 151, at 1-2; Doc. 154, at 1-2.)
ANALYSIS
Federal Rule of Civil Procedure 26(c) governs protective orders and
provides, in relevant part:
A party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending.... The motion must include a
certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
***
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the
disclosure or discovery;
***
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(D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters;....
Fed.R.Civ.P. 26(c)(1). The party seeking to quash a subpoena must show “good
cause” for the requested protective order. Id.; Sloan v. Overton, No. 08-2571JAR-DJW, 2010 WL 3724873 (D.Kan. Sept. 17, 2010).
Plaintiff argues Defendants “unilaterally” set the deposition of Mr. Norton
“without consideration of [his] availability or the inconvenience of the place of
deposition.”1 (Doc. 147, at 2.) Regardless of whether Defendants unilaterally set
the deposition, a proposition they dispute, the Court’s analysis will take into
consideration the issue of convenience.
The undersigned Magistrate Judge has previously required plaintiffs to
travel to Kansas for their depositions. Almonacid v. Cessna Aircraft Co., No. 111224-MLB-KGG, 2012 WL 1059681, at *1 (D. Kan. March 28, 2012) (internal
citations omitted) (requiring plaintiffs residing in Chile to travel to Kansas, the
district where the action is pending, for their depositions). Unlike Almonacid, the
Plaintiff in the matter before the Court, however, did not choose to bring its claims
in the District of Kansas. The present matter was filed in the Southern District of
New York and transferred to Kansas upon Defendants’ motion. (Docs. 1, 22.)
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Plaintiff also argues that the deposition is untimely given that documents
“critical” to the deposition are the subject of Plaintiff’s Motion for Order to Show Cause
(Doc. 139). The Court has denied that motion, but Ordered certain documents/affidavits
be produced on or before March 13, 2015. (Doc. 151.) As such, this portion of Plaintiff’s
argument is moot.
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As a general rule, a plaintiff must make himself available
for examination in the district in which he brought suit.
Clayton v. Velociti, Inc., 08–2298–CM–GLR, 2009 WL
1033738 (D. Kan. April 17, 2009). ‘Since the plaintiff
has selected the forum, he or she will not be heard to
complain about having to appear there for a deposition.’
Stubbs v. McDonald's Corp., No. 04–2164–GTV–DJW,
2005 WL 375662, at *1 (D.Kan. Jan. 26, 2005).
Almonacid, 2012 WL 1059681, at *1.)
Given the circumstances in the present matter – wherein the case was
originally filed in New York and transferred, by Defendants, to Kansas – the Court
will not require Morton to travel to Kansas for his deposition. Rather, the
deposition will occur in New York City at Plaintiff’s principle place of business.
Building Erection Servs. Co., L.C. v. American Bldgs. Co., No. 09-2104-CMDJW, 2010 WL 135210, at *2 (D. Kan. Jan. 13, 2010).
Defendants also argue that Plaintiff provides no supporting affidavit to
establish that Plaintiff’s principle place of business is New York and that it would
be inconvenient for Morton to have his deposition taken in Kansas. The Court is
not persuaded by this argument. Plaintiff’s Complaint specifically enumerates its
principle place of business as 183 Madison Ave., New York, NY. (Doc. 1, at 3.)
Further, the Court takes judicial notice that it would be inconvenient for anyone to
travel approximately 1,400 miles for a deposition.
Defendants further contend that the motion should be denied because
Plaintiff failed to comply with D. Kan. Rule 37.1, requiring a copy of the
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deposition notice to be attached to the motion. According to Defendants, this can
complicate the Court’s ability to determine what to compel. (Doc. 152, at 2.)
Although it would have been ideal for the deposition notice to be attached the
motion, the Court had little trouble finding the deposition notice a mere three
entries above Plaintiff’s motion in the case docket. (Doc. 143.)
Plaintiff’s motion (Doc. 146) is, therefore, GRANTED.
IT IS SO ORDERED.
Dated this 11th day of March 2015, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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