Thomas v. Wallace, Rush, Schmidt, Inc.

Filing 160

ORDER denying 152 Motion to Compel Appearance of Plaintiff for Deposition in Louisiana. The parties shall make arrangements to conduct Plaintiff's deposition by telephone or video conference as set forth in this Order. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 3/18/2020. (Bourgeois, Richard)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DE’MARCUS THOMAS

CIVIL ACTION

VERSUS

NO. 16-572-BAJ-RLB

WALLACE, RUSH, SCHMIDT, INC.
ORDER
Before the Court is Defendants’ Motion to Compel Appearance of Plaintiff for
Deposition in Louisiana. (R. Doc. 152). The motion is opposed. (R. Doc. 153). Defendants filed
a reply. (R. Doc. 156).
I.

Background
De’Marcus Thomas (“Plaintiff”) initially brought this lawsuit as a class action under Rule

23 of the Federal Rules of Civil Procedure and as a collective action under the Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq. (R. Docs. 1, 15, 20, 51). The district judge dismissed
Plaintiff’s class action and collective action claims, leaving only individual claims under the
FLSA, the Louisiana Wage Payment Act, La. R.S. 23:631 et seq., and the Louisiana Civil Code.
(R. Docs. 132).
On November 26, 2019, the parties agreed that Plaintiff’s deposition would take place
after the close of discovery on November 29, 2019. (R. Doc. 152-3 at 8-11). The parties did not,
however, agree upon a specific date for the deposition, the location of the deposition, or whether
the deposition would be taken by remote means. After the close of discovery, counsel for the
parties exchanged several emails regarding the location of the deposition, the manner of the
deposition, and potential cost allocation. (R. Doc. 152-3 a 1-8). Defendants would not agree to a

deposition by telephone and offered to pay two-thirds of Plaintiff’s airfare to travel to Louisiana
for his deposition.
Following these email exchanges, Defendants filed the instant motion, which seeks an
order compelling Plaintiff to travel to Louisiana for his deposition. (R. Doc. 152). Defendants
argue that Plaintiff must make himself available for a deposition in Louisiana because he brought
the lawsuit in this State. Plaintiff argues that he would face financial hardship unless Defendants
paid for his entire travel costs to Louisiana.
II.

Law and Analysis
As a preliminary issue, it appears that Defendants did not formally notice Plaintiff’s

deposition for a specific time or place under Rule 30(b)(1) prior to the close of discovery.
Instead, the parties agreed that Plaintiff’s deposition would take place sometime after the close of
discovery without reaching any specific agreement on the deposition’s location or method.
Parties are allowed to stipulate to a deposition after the discovery deadline. See Fed. R. Civ. P.
29(a); see Local Rule 26(d)(1) (“Unopposed discovery may continue after the applicable
deadline for discovery contained in the scheduling order, provided that discovery does not delay
other pretrial preparations or the trial setting.”). Generally, however, the Court will not entertain
motions to compel with respect to discovery conducted after the Court’s deadline. The Court
will consider the merits of this particular motion because it concerns whether Plaintiff’s
deposition will take place.
“The parties may stipulate—or the court may on motion order—that a deposition be
taken by telephone or other remote means.” Fed. R. Civ. P. 30(b)(4). “As a general rule,
[however,] a plaintiff will be required to make himself available for examination in the forum in
which suit was brought.” Birkland v. Courtyards Guest House, No. 11-0349, 2011 WL 4738649,

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at *2 (E.D. La. Oct., 7, 2011) (citations omitted). “The Court has considerable discretion in
determining the place of a deposition, and may consider the relative expenses of the parties.” Id.
“However, absent a specific showing of hardship tied to an individual’s circumstances, a general
order requiring that the deposition of an out-of-town plaintiff be taken telephonically is not
warranted.” Id. “The ability to observe a party as he or she answers deposition questions is an
important aspect of discovery which the Court will not modify except in cases of extreme
hardship.” Id. “When determining whether extreme hardship exists, courts consider the party’s
(1) age, (2) physical condition, (3) finances, and (4) other factors that might result in extreme
hardship.” Id. at *3.
In Birkland, the plaintiff did not establish extreme hardship where he alleged that he was
recently terminated from his job as a security guard, had approximately $100 in his bank
accounts, and had no medical insurance to pay for medically necessary knee surgeries, but was
married to an employed registered nurse. See id.
Defendants argue that the Court should similarly find that Plaintiff has not established
extreme hardship meriting a deposition by telephone. Defendants highlight their offer to pay
two-thirds of Plaintiff’s airfare and represent that Plaintiff has not negotiated certain pay checks.
In opposition, Plaintiff argues that Defendants should cover all of his airfare or the deposition
should be held by telephone. In an attempt to distinguish Birkland, Plaintiff represents that he
does not have access to credit cards, has less than $5 in his bank accounts, and does not have an
employed spouse.
Having considered the record, the Court need not decide whether Plaintiff’s specific
economic situation alone constitutes extreme hardship that merits a telephonic deposition. The
Court set an in-person settlement conference on March 31, 2020, and was prepared to order

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Plaintiff’s deposition to take place while he was in Louisiana for the settlement conference. The
settlement conference has since been cancelled in light of the current COVID-19 virus
(coronavirus) outbreak in Louisiana. (R. Doc. 159). After the Governor of the State of Louisiana
declared a State of Emergency and the President of the United States declared a National
Emergency, the U.S. District Court for the Middle District of Louisiana began operating under
“pandemic related curtailed operations.” See Admin. Order. No. 2020-1 (M.D. La. Mar. 13,
2020). In addition, the Centers for Disease Control and Prevention (“CDC”) has recommended
mitigation strategies including social distancing and limited travel.
Given Plaintiff’s economic situation and the coronavirus outbreak, the Court finds
extreme hardship with respect to travel for Plaintiff’s deposition. Conducting Plaintiff’s
deposition by telephone or videoconference is appropriate under these circumstances.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Defendants’ Motion to Compel Appearance of Plaintiff for

Deposition in Louisiana (R. Doc. 152) is DENIED. The parties shall bear their own costs.
Plaintiff’s deposition must take place within 14 days of the date of this Order by telephone or
videoconference, or as otherwise agreed upon by the parties.
Signed in Baton Rouge, Louisiana, on March 18, 2020.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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