Moore v. Nebraska Beef, Ltd.

Filing 29

MEMORANDUM AND ORDER denying 22 plaintiff's Motion for Telephonic Deposition. Plaintiff is hereby ordered to make himself available for deposition in Nebraska no later than October 20, 2010. The parties' Stipulated Motion to Extend Discovery and Related Deadlines 28 is granted. An amended progression order will be entered separately extending all existing deadlines by approximately 90 days. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

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-FG3 Moore v. Nebraska Beef, Ltd. Doc. 29 IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA T E R R E N C E L. MOORE, P l a i n t i f f, vs. N E B R A S K A BEEF, LTD., D efe n d a n t. ) ) ) ) ) ) ) ) ) 8 :0 9 -c v -0 0 3 9 9 -L S C -F G 3 M E M O R A N D U M AND ORDER T h is matter is before the court on plaintiff's Motion for Telephonic Deposition (Doc. 2 2 ) and the parties' joint motion to extend the case deadlines (Doc. 28). T h e complaint alleges that plaintiff, a non-Hispanic African American male, was e m p lo ye d at the defendant's beef packaging plant in Omaha, Nebraska. His employment was te rm in a te d after he complained that Hispanic coworkers harassed him based on his race, c o lo r, and sex. Plaintiff seeks relief under 42 U.S.C. § 2000e-5 and 42 U.S.C. § 1981a. The C o m p lain t alleges that plaintiff resided in the State of Texas when he filed this action in N e b ra s k a state court on October 7, 2009. The parties have been unable to schedule the plaintiff's deposition. In his motion, p lain tiff advises that he now lives in the State of Louisiana, is unemployed, is a single parent, a n d is serving a term of probation that restricts his ability to travel out of the state. He also s ta te s that he cannot pay to travel to Nebraska for his deposition, and he cannot pay to have h is own attorney travel to Louisiana to attend a deposition. He plans on attending the trial o f this matter in Omaha, needs to save money for that trip, and "feel[s] that Nebraska Beef sh o u ld take [his] deposition by telephone." (Doc. 23, Plaintiff's Affidavit). R u le 30(b)(4) of the Federal Rules of Civil Procedure provides that "[t]he parties may s tip u la te ­ o r the court may on motion order­that a deposition be taken by telephone or other re m o te means." In this case, the defendant does not agree to a telephone deposition. [T]here is a well-recognized, general rule that a plaintiff is required to make its e lf available for a deposition in the District in which the suit was com m e n c e d , because the plaintiff has chosen the forum voluntarily, and should e x p e c t to appear there for any legal proceedings, whereas the defendant, o rd in a rily, has had no choice in selecting the action's venue. A r c h e r Daniels Midland Co. v. Aon Risk Servs., Inc., 187 F.R.D. 578, 588 (D. Minn. 1999). T h is general rule is subject to exception, "when the plaintiff can make a compelling showing th a t its application would impose an unduly heavy burden." Id. See also Gibbs v. National R a ilr o a d Passenger Corp., 170 F.R.D. 452 (N.D. Ind. 1997). As the court explained in United States v. Rock Springs Vista Dev., 185 F.R.D. 603, 6 0 4 (D. Nev. 1999), T h e issue of taking the deposition of a witness is different from the issue o f taking the deposition of a plaintiff. A witness is not responsible for and has n o t made the election to be involved in the litigation. Therefore, there are lim its to the imposition that the judicial system should impose on such a p e rs o n . The plaintiff, on the other hand, has not only taken the volitional step o f initiating the lawsuit or claim, he or she stands to gain a substantial m o n e ta ry sum and/or other beneficial relief as a result of suing a defendant. A p la in tif f , therefore, cannot invoke the mere fact inconvenience or expense as a legitimate reason to refuse to appear and submit himself or herself to q u e s tio n in g by the defendant regarding the basis for the claim. **** " T e le p h o n e depositions are not recommended for obtaining controversial te s tim o n y. You cannot observe the impact of your questions or the witness' n o n v e rb a l responses. Moreover, you will be unable to ascertain if anyone is lis te n in g in or 'coaching' the witness." William W Schwarzer, A. Wallace T as h im a , & James M. Wagstaffe, FEDERAL CIVIL PROCEDURE BEFORE T R IA L § 11.443 (1997). A s a normal rule plaintiff will be required to make himself or herself a v a ilab le for examination in the district in which suit was brought. S in c e plaintiff has selected the forum, he or she will not be heard to c o m p l a in about having to appear there for a deposition. But this is at b e st a general rule, and is not adhered to if plaintiff can show good c a u se for not being required to come to the district where the action is p e n d in g . C h a rle s Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL P R A C T IC E AND PROCEDURE § 2112 (1994). I n this instance, the plaintiff has not shown an extreme hardship that would excuse h im from appearing in Nebraska to be deposed. Plaintiff chose to file this lawsuit in N e b r a s k a . The defendant should not have to forego the right to take plaintiff's deposition f a ce -to -f a ce simply because plaintiff elected to move from Nebraska (where he was -2- em p loyed by the defendant), then to Texas (where he lived when the complaint was filed), a n d then to Louisiana. Plaintiff is cautioned that failure to appear for his deposition may result in the im p o s itio n of sanctions against him pursuant to Fed. R. Civ. P. 37(b) and (d), including the sa n c tio n of dismissal. I T IS ORDERED: 1 . P lain ti f f 's Motion for Telephonic Deposition (Doc. 22) is denied. Plaintiff is h e re b y ordered to make himself available for deposition in Nebraska no later than October 2 0 , 2010. 2 . T h e parties' Stipulated Motion to Extend Discovery and Related Deadlines (Doc. 2 8 ) is granted. An amended progression order will be entered separately extending all e x i stin g deadlines by approximately 90 days. D A T E D September 7, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge -3-

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