MAPAL Inc. v. Atarsia et al

Filing 42

ORDER GRANTING DEFENDANT ATARSIAS MOTION FOR PROTECTIVE ORDER PURSUANT TO FED. R. CIV. P. 26(C) [#34] AND REQUIRING DEFENDANTS DEPOSITION BE TAKEN IN MONTREAL, CANADA. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MAPAL, INC.,
Plaintiff,

Case Number 15-12159
Honorable Gershwin A. Drain

vs.

ABDELLATIF ATARSIA, et al.,
Defendants.
____________________________/
ORDER GRANTING DEFENDANT ATARSIA’S MOTION FOR
PROTECTIVE ORDER PURSUANT TO FED. R. CIV. P. 26(C) [#34] AND
REQUIRING DEFENDANT’S DEPOSITION BE TAKEN IN MONTREAL,
CANADA
I.

INTRODUCTION
Presently before the Court is Defendant Abdelatif Atarsia’s Motion for

Protective Order Pursuant to Fed. R. Civ. P. 26(c). Defendant seeks the entry of a
protective order adjourning his deposition, unilaterally set for December 3, 2015,1 and
requiring that his deposition take place in Montreal, Canada at a mutually agreeable
date and time. Plaintiff, Mapal, Inc., filed a Response in Opposition on December 21,
2015, and Defendant filed a Reply in Support of his motion on December 31, 2015.

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Since this date has passed, this aspect of Defendant’s motion is moot.
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Upon review of the parties’ filings, the Court concludes that oral argument will
not aid in the disposition of this matter. Accordingly, the Court will decide the motion
on the briefs submitted. See E.D. Mich. L.R. 7.1(f)(2).
II.

FACTUAL BACKGROUND
Defendant is a Canadian citizen who resides in Montreal. He is a former

employee of Plaintiff, which is based in Port Huron, Michigan. Defendant worked for
Plaintiff as an Aerospace Manager from February of 2012 through April 10, 2015.
In connection with his employment with Plaintiff, Defendant traveled more than a
dozen times to either Port Huron or Detroit, Michigan, as well as traveled to other
North American locations. Defendant is currently employed by Minicut International,
Inc. (“Minicut”), a Canadian company that is headquartered in Montreal.
On June 12, 2015, Plaintiff filed the instant action alleging that Defendant
violated the non-competition provision of his employment agreement in connection
with his current employment with Minicut, among other claims. Defendant filed a
Motion to Dismiss, and the Court heard oral arguments on November 23, 2015. On
November 30, 2015, the Court entered an Order Denying Defendant’s Motion to
Dismiss as to the breach of contract claim, but granted Defendant’s Motion as to
Plaintiff’s claims for breach of fiduciary duty, conspiracy, and tortious interference.
On October 14, 2015, Plaintiff served a deposition notice on Defendant for

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November 19, 2015, at the offices of Plaintiff’s counsel in Detroit. On November 6,
2015, Defendant’s counsel informed Plaintiff’s counsel that Defendant was
unavailable on November 19, 2015, and that he would propose alternate dates for the
deposition as soon as he could. After waiting ten days and hearing nothing from
Defendant’s counsel, Plaintiff’s counsel again noticed Defendant’s deposition,
scheduling his deposition for December 3, 2015.
At the Court’s hearing on Defendant’s Motion to Dismiss, or on November 23,
2015, Defendant’s counsel informed Plaintiff’s counsel that he had a prior
commitment which prevented his attendance at the December 3, 2015 deposition.
Two days later, Defendant’s counsel emailed Plaintiff’s counsel with alternate dates
that Defendant would be available in Montreal for his deposition. Plaintiff objected
to conducting Defendant’s deposition in Canada and the parties have been unable to
resolve their current dispute concerning the date and location for Defendant’s
deposition.
III.

LAW & ANALYSIS
An “examining party may set the place for the deposition of another party

wherever he wishes subject to the power of the court to grant a protective order under
Rule 26(c)(2) designating a different place.” Farquhar v. Shelden, 116 F.R.D. 70, 72
(E.D. Mich. 1987) (citing 8A Charles Alan Wright & Arthur R. Miller, Federal

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Practice and Procedure § 2112 (3d ed. 2012)).
“It is within the discretion of the court to designate the location for taking
depositions, and each application must be considered on its own facts and equities.”
Id. There is a presumption “that the defendant will be examined at his residence or
place of business or employment.” Farquhar, 116 F.R.D. at 72. “[I]n the absence of
special circumstances, a party seeking discovery must go where the desired witnesses
are normally located.” Id. “[I]t is the plaintiffs who bring the lawsuit and who
exercise the first choice as to the forum[,] . . . . [t]hus, courts have held that plaintiffs
normally cannot complain if they are required to take discovery at great distances
from the forum.” Id.
Federal Rule of Civil Procedure 26(c) states 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 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:
*

*

*

(B) specifying terms, including time and place or the allocation of
expenses, for the disclosure or discovery[.]

Fed. R. Civ. P. 26(c). A party seeking a protective order has the burden to establish
good cause exists for the order. Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001).

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Plaintiff asserts that special circumstances justify compelling Defendant to
appear for deposition in Detroit, Michigan. Plaintiff mainly argues that Defendant
was untimely in bringing the instant motion. However, the case Plaintiff relies on is
distinguishable from the facts present here. In Stephens v. Sioux City & New Orleans
Barge Lines, Inc., 30 F.R.D. 397, 397-98 (W.D. Mo. 1962), the plaintiff failed to offer
any explanations concerning his non-appearance at his noticed deposition on three
separate occasions. It was not until the defendant moved for dismissal of the action
under Federal Rule of Civil Procedure 37(d) that the plaintiff moved for an order
quashing the deposition notice. Id. at 398.
The plaintiff’s dilatory actions in Stephens are unlike the situation here.
Defendant provided ample notice about the conflict with the depositions dates selected
by Plaintiff. Unlike the Stephens plaintiff, Defendant did not just fail to appear at his
deposition.

Plaintiff’s untimeliness argument is not a “special circumstance”

warranting deviation from the presumption “that the defendant will be examined at his
residence or place of business or employment.” Farquhar, 116 F.R.D. at 72.
Plaintiff’s other arguments also do not show special circumstances exist which
support compelling Defendant to attend his deposition in Detroit, Michigan. Plaintiff
argues that Defendant traveled to Port Huron or Detroit more than a dozen times
during his employment with Plaintiff. However, “the correct inquiry is whether the

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deponent frequently travels to the forum district or the proposed deposition situs.” In
re Outsidewall Tire Litigation, 267 F.R.D. 466, 473 (E.D. Va. 2010). Defendant has
not been to Michigan since April of 2015 when he left Plaintiff’s employment and he
has no plans to travel to Michigan.
Plaintiff’s claim that relative cost should be a factor also does not persuade this
Court that Defendant should travel to Detroit, Michigan for his deposition. A claim
of financial hardship, standing alone, is insufficient to support deviation from the
general rule that the defendant will be examined at his residence or place of business
or employment. Farquhar, 116 F.R.D. at 72. Lastly, Plaintiff’s concern that disputes
will arise during the deposition necessitating this Court’s intervention is without merit.
Plaintiff is merely speculating that conflicts will arise between the parties.
In conclusion, Plaintiff has failed to provide sufficient reasons supporting this
Court’s departure from the general rule requiring that Defendant be deposed at his
residence or place of business. Defendant has demonstrated good cause for entry of
a protective order requiring that his deposition take place in Montreal, Canada at a
mutually agreeable date and time.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Atarsia’s Motion for a Protective Order

[#34] is GRANTED. Defendant shall provide Plaintiff with available dates for his

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deposition in Montreal, Canada no later than January 12, 2016.

Defendant’s

deposition shall occur no later than February 8, 2016 in Montreal, Canada.
SO ORDERED.
Dated: January 6, 2016

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

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