Kennedy v. Jefferson County, Mississippi et al

Filing 185

ORDER granting in part and denying in part 175 Motion to Change the Venue of the Deposition of Nikki DuPlessis. Signed by Magistrate Judge Michael T. Parker on November 14, 2014. (ES)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JERRY L. KENNEDY

PLAINTIFF

v.

CIVIL ACTION NO. 5:13cv226-DCB-MTP

JEFFERSON COUNTY, et al.

DEFENDANTS
ORDER

BEFORE THE COURT is a Motion [175] to Change the Venue of the Deposition, filed by
non-party Nikki DuPlessis (“DuPlessis”). After careful consideration of the parties and the
applicable law, the Court finds that Motion [175] should be granted in part and denied in part.
This case arises out of the Plaintiff’s termination as administrator of Jefferson County
Hospital. DuPlessis is the daughter of Dudley Guice, one of the Defendants in this case. She is also
the wife of Paul DuPlessis, owner of Dhealthcare Consultants, neither of which are parties to this
action. DuPlessis lives in Mandeville, Louisiana. See Deposition Subpoena [158-1]. The record
reflects that Defendant Board of Trustees of Jefferson County Hospital, Jefferson County Hospital
and Regina Reed (“the deposing parties”) filed a notice to take deposition of DuPlessis, to take place
on October 28, 2014 in New Orleans, Louisiana. See Notice to Take Deposition [155]. On October
27, 2014, counsel for DuPlessis requested that her deposition be rescheduled because she had not
been personally served, and therefore did not know about the deposition until a few days before,1

1

The deposing parties had a subpoena issued for DuPlessis and hired a private process
server. See Notice of Issuance of Deposition Subpoena [157]. The process server states that
when he went to Duplessis’s home on October 12, 2014, her husband Paul DuPlessis accepted
the subpoena on her behalf. See Melvin Rein Declaration [176-1]. However, DuPlessis does not
contend that her deposition should be prohibited for failure to be personally served. Likewise,
the deposing parties do not move for any relief with respect to the subpoena.
1

and because she had a job interview on that day. See Exhibit E-mail [176-2] at 2. Counsel for
DuPlessis and the deposing parties then rescheduled the deposition for November 18, 2014, to take
place in Jackson, Mississippi. See Exhibit E-mails [176-3] at 2-3. However, upon communicating
the date and time her client, counsel for DuPlessis learned that her client preferred to be deposed in
Fayette, Mississippi, as DuPlessis has friends and relatives there who could care for her twin infants.
Id. at 1. Counsel for the deposing parties refused to reschedule the deposition in Fayette. Id.
DuPlessis now requests that her deposition currently set for November 18 in Jackson,
Mississippi, be held in Fayette Mississippi. See Motion [175]. The deposing parties have filed a
Response [176], and argue that the motion should be denied on the following grounds; (1) DuPlessis
failed to include a good faith certificate and submit an accompanying memorandum in support with
her motion , as required by the Local Uniform Civil Rules;2 (2) counsel for DuPlessis initially agreed
for the deposition to take place in Jackson; and (3) all the parties, including Co-Defendants and
Plaintiffs, will incur additional expenses if their counsel were required to attend a deposition in
Fayette. The Court will address each argument in turn.
First, although it is true that the Motion [175] is unaccompanied by a good faith certificate
and memorandum in support, the Motion outlines in detail the efforts of respective counsel to
reschedule the deposition. As for the memorandum in support, the Motion includes the essential
information necessary to guide the Court in its ruling.
Second, Federal Rule of Civil Procedure 45(c)(1)(A) provides that a subpoena may command
a person to attend a deposition only “within 100 miles of where the person resides, is employed, or
regularly transacts business in person.” An individual cannot be required to travel outside the limits

2

L. U. Civ. R. 7(b)94) and 34(a).
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imposed by Rule 45 in order to be deposed. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 623
(5th Cir. 1973). Neither Jackson nor Fayette is within the 100 miles limit of DuPlessis’s residence
in Mandeville, Louisiana.3 Accordingly, the Court will not require DuPlessis, or any of the parties,
to travel to either location. An individual may agree to be deposed at a specific place outside the 100
mile radius specified by Rule 45, but that is not the case here. Although respective counsel
communicated extensively concerning rescheduling, the dispute remains unresolved.
Last, the Court is unpersuaded by arguments relating to the additional expense or
inconvenience the other parties to this action might incur by a change in the deposition venue. The
other parties did not respond to the motion within the time allotted or otherwise raise any objections
or concerns.
IT IS, THEREFORE, ORDERED:
1. To the extent the Motion [175] seeks to transfer the deposition venue from Jackson,
Mississippi, it will be GRANTED.
2. The request that the deposition be moved to Fayette, Mississippi will be DENIED.
3. The parties are directed to confer to schedule the deposition of Nikki DuPlessis within 100
miles of her residence pursuant to the Federal Rules. Nothing herein prevents the parties from
agreeing to another location. However, if no agreement is reached, the 100 mile limit will apply.
SO ORDERED this the 14th of November, 2014.
s/ Michael T. Parker
United States Magistrate Judge

3

Rule 45 also allows an individual to be deposed within 100 miles of their place of
employment or where the person regularly transacts business in person. This information was not
provided regarding DuPlessis.
3