Federal Deposit Insurance Corporation, as Receiver for CF Bancorp, Port Huron, Michigan v. Griffor et al

Filing 33

ORDER granting 24 Motion for Protective Order- Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FDIC, AS RECEIVER FOR CF
BANCORP,
Plaintiff,

CASE NO. 13-cv-10589
DISTRICT JUDGE BERNARD A. FRIEDMAN

vs.

MAGISTRATE JUDGE MONA K. MAJZOUB

MARK AND RUTHANN GRIFFOR,
husband and wife,
Defendants.
/

ORDER GRANTING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER [24]
Before the Court is Defendants’ Motion for Protective Order. (Docket no. 24.) Plaintiff filed
a Response (docket no. 27) and Defendants filed a Reply (docket no. 28). This matter was referred
to the undersigned for determination. (Docket no. 25). The Court dispenses with oral argument
pursuant to E.D. Mich. L.R. 7.1(f). This matter is now ready for ruling pursuant to 28 U.S.C. §
636(b)(1)(A).
This matter arises out of Defendants’ alleged default on a mortgage securing a note on real
property located in Macomb County, Michigan. (See docket no. 1; see also docket no. 27 at 1.)
Defendants lived in Oregon at the time they executed the mortgage, and they currently live in Texas.
(See docket no. 24 at 1.) On May 13, 2014, Plaintiff re-noticed the deposition of Defendant Mark
Griffor for May 28, 2014, at Plaintiff’s attorney’s office in Bloomfield Hills, Michigan. (See docket
no. 27 at 2.) Defendants’ Motion for Protective Order requests that the Court require Plaintiff to (1)
take Mr. Griffor’s deposition by phone; (2) take Mr. Griffor’s deposition in Texas; or (3) pay for the
costs associated with taking Mr. Griffor’s deposition in Michigan. (Docket no. 24 at 2.)

“‘[T]he examining party may set the place for deposition of another party wherever he or she
wishes, subject to the power of the court to grant a protective order under Rule 26(c)(2) designating
a different place.’” El Camino Resources Ltd. V. Huntington Nat. Bank, No. 07-598, 2008 WL
2557596, at *2 (W.D. Mich. June 20, 2008) (quoting 8A Charles Alan Wright, Arthur R. Miller,
Richard L. Markus, Federal Practice & Procedure § 2112 at 73 (2d ed.1994)) (citing Turner v.
Prudential Ins. Co. of America, 119 F.R.D. 381, 382 (M.D.N.C.1988) (“A party may unilaterally
choose the place for deposing an opposing party, subject to the granting of a protective order by the
Court pursuant to Rule 26(c)(2), Fed.R.Civ.P., designating a different place.”)). But when a party
makes a Motion under Rule 26(c)(2), “[i]t is within the discretion of the court to designate the
location for a taking [the] deposition[], and each application must be considered on its own facts and
equities.” Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987) (citing Terry v. Modern
Woodman of America, 57 F.R.D. 141 (W.D.Mo.1972)).
Rule 26(c) allows the Court to issue protective orders for good cause shown to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense, including
that the disclosure or discovery not be had or that the disclosure or discovery be limited to certain
matters. Fed.R.Civ.P. 26(c). The party seeking a protective order has the burden of showing that
good cause exists for the order. Nix v. Sword, 11 Fed. App’x 498, 500 (6th Cir.2001). To show
good cause, the movant must articulate specific facts showing clearly defined and serious injury
resulting from the discovery sought and cannot rely on conclusory statements. Id. And as Plaintiff
notes, “[s]uch a determination must also include a consideration of the relative hardship to the nonmoving party should the order be granted.” (Docket no. 27 at 3 (citing United States v. Kordel, 397
U.S. 1, 4-5 (1970)).)

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Plaintiff argues that Defendants have failed to show good cause for such an order, but as a
general rule, a defendant is deposed in the district where [the defendant] resides. Lomax v. Sears,
Roebuck & Co., No. 99-6589, 2000 WL 1888715, at *3 (6th Cir. Dec. 19, 2000). That is, “in the
absence of special circumstances, a party seeking discovery must go where the desired witnesses
are normally located.” Farquhar, 57 116 F.R.D. at 72 (citing Salter v. Upjohn Co., 593 F.2d 649,
671 (5th Cir.1979), Dunn v. Standard Fire Insurance Co., 92 F.R.D. 31 (E.D.Tenn.1981), General
Leasing Co. v. Lawrence Photo-Graphic Supply, 84 F.R.D. 130 (W.D.Mo.1979)).
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. Thus, courts have held that plaintiffs
normally cannot complain if they are required to take discovery at great distances
from the forum.
Id. (citing Work v. Bier, 107 F.R.D. 789, 792 (D.C.1985)).
Here, Defendants assert that Mr. Griffor is financially unable to travel to Michigan for his
deposition and that requiring him to do so would be an undue expense. In support of this assertion,
Defendants provide a financial statement, which indicates that Mr. Griffor is a self-employed
contractor working only part time and that Ms. Griffor works 36 hours per week in a retail position.
(See docket no. 30.) Additionally, Defendants contend that Ms. Griffor has recently started testing
for a yet-to-be-determined medical ailment, which prevents her from earning a more substantial
income. (See docket no. 24 at 5, 7.)
In response, Plaintiff argues that Defendants’ assertions of poverty and medical ailments are
vague statements, which are insufficient to support their Motion. (Docket no. 27 at 3.) Moreover,
Plaintiff argues, the FDIC would be adversely affected if the Court orders that Mr. Griffor’s
deposition must be held in Texas because (1) the real property and collateral are in Michigan, (2)

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the note was executed in Michigan and the bank records are in Michigan, (3) Defendants’ primary
witness is in Michigan, and (4) Defendants’ counsel is in Michigan. (Id. at 4.) Thus, Plaintiff
contends, “depriving Plaintiff of the right to conduct the litigation in the jurisdiction where the entire
transaction took place is an affront to the judicial process and a needless expense for Plaintiff.” (Id.)
Plaintiff’s arguments are not well-taken. Notably, Plaintiff does not challenge Defendants’
assertion that they cannot afford the cost of travel to Michigan for Mr. Griffor’s deposition; instead,
Plaintiff challenges the sufficiency of Defendants’ briefing. More importantly, though, the Court
is unable to determine how the location of the property, the location where the note was executed,
the location of the bank records, or the location of another witness would have any impact on Mr.
Griffor’s deposition. Presumably, Plaintiff does not intend to take Mr. Griffor to the subject
property or the location of the bank’s records during his deposition or have the other witness attend
his deposition. And contrary to Plaintiff’s contention, denying Plaintiff the opportunity to depose
a single witness in Michigan does not “deprive [it] of the right to conduct litigation in [this]
jurisdiction.” Plaintiff, with knowledge that Plaintiff’s representative and Defendants all resided in
Texas, chose to file this matter in Michigan. The Court finds no reason that Mr. Griffor should be
required to bear the burden of traveling to Michigan for his deposition.
Defendants have, however, offered to allow Plaintiff to take Mr. Griffor’s deposition by
telephone under Fed. R. Civ. P. 30(b)(4) or in Michigan by paying for Mr. Griffor’s travel expenses.
(Docket no. 24.) A deposition may be taken by telephone or other remote means by order of the
court or upon stipulation of the parties. Fed.R.Civ.P. 30(b)(4). Because the Court will grant
Defendants’ Motion, an order to take Mr. Griffor’s deposition by telephone is unnecessary. Instead,
the Court will permit Plaintiff to determine if it prefers to depose Mr. Griffor in Texas in person, in

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Texas by telephone, or in Michigan while paying for his reasonably related expenses. If Plaintiff
desires to take Mr. Griffor’s deposition by telephone, the Parties can so stipulate.
IT IS SO ORDERED.
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. § 636(b)(1).

Dated: September 4, 2014

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon Counsel of Record
on this date.
Dated: September 4, 2014

s/ Lisa C. Bartlett
Case Manager

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