HARRIS v. NCO FINANCIAL SYSTEMS et al

Filing 30

MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION FOR AN ORDER COMPELLING PLAINTIFF'S APPEARANCES FOR HER DEPOSITION IS GRANTED AND PLAINTIFF IS ORDERED TO APPEAR FOR DEPOSITION IN THE OFFICE OF DEFENDANT'S COUNSEL WITHIN 60 DAYS OF THE DATE OF THIS ORDER. DEFENDANT'S REQUEST FOR COSTS IS DENIED. SIGNED BY HONORABLE EDMUND V. LUDWIG ON 2/24/2009. 2/26/2009 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

S H E R I L. HARRIS v. N C O FINANCIAL SYSTEMS, et al.

: : : : :

C IV IL ACTION

N o . 07-5546

O R D E R -M E M O R A N D U M A N D NOW, this 24 th day of February, 2009, "Defendant's Motion for an Order C o m p e llin g Plaintiff's Appearance for her Deposition" (docket no. 22) is granted, and p lain tiff is ordered to appear for deposition in the office of defendant's counsel within sixty (6 0 ) days of the date of this order. Defendant's request for costs is denied. T h is is an action under the Fair Debt Collection Practices Act. On December 14, 2 0 0 7 , plaintiff Sheri L. Harris, pro se, filed a complaint in this court, which she later a m e n d e d . The amended complaint states that defendant NCO Financial Systems, Inc. v io la te d the act, and requests return of sums collected by NCO. More specifically, the a m e n d e d complaint states that NCO "rendered relentless pursuit concerning [a past due] a c c o u n t." Further, though the amended complaint admits plaintiff paid an amount in s e ttle m en t of the debt sought to be collected by NCO, it asserts that she did not, in fact, owe a n y money to the creditor that assigned the account to NCO for collection. Amended c o m p la in t, ¶¶ 2, 3. In the course of a pre-trial conference, counsel for defendant and plaintiff were in s tr u c te d to select a mutually convenient date for the deposition of plaintiff. Defense

c o u n se l contacted plaintiff to choose a date, but plaintiff refused to agree to any date, stating t h a t she would not appear for deposition. On June 20, 2008, counsel served a notice of d ep o sition upon plaintiff, scheduling the deposition on July 17, 2008 in counsel's P h ila d e lp h ia offices. Exhibit "A" to motion. Plaintiff contacted counsel and stated that she w o u ld not travel to Philadelphia for a deposition and, in fact, she did not appear for the n o tic e d deposition. On August 8, 2008, defendant filed this motion for an order compelling the deposition in Philadelphia. Plaintiff filed a response to the motion in which she reiterated that "she w o u ld not be able to attend any such deposition, because she resides out of state; and would p re f era b ly file for Summary Judgment." Response, docket no. 24, ¶ 3. Plaintiff also states th a t she "cannot afford the cost of travel to desired destination." Id., ¶ 4. Subsequently, p la in tif f produced a note from her employer, Westchester Cardiac Associates stating, "To w h o m it may concern, Ms. Sheri Harris is the sole employee at the WCA in Westchester, NY. It would impose great difficulty upon the medical practice if Ms. Harris were to take any time o ff at this time." The note is dated August 15, 2008, and is written on an "Official New York S ta te Prescription" form stamped with the name of Maria Pellegrino, M.D. Note, produced w ith plaintiff's motion for summary judgment (docket no. 26). U n d e r the Federal Rules of Civil Procedure the location of a deposition is first le f t to the party noticing the deposition. Fed. R. Civ. P. 30(b)(1). Resolution o f any dispute regarding location is left to the sound discretion of the court. P h ila d e lp h ia Indemnity Ins. Co. v. Federal Ins. Co., 215 F.R.D. 492, 495 (E.D. P a . 2003). A party who objects to the place set for deposition ordinarily files a motion for a protective order, averring physical or financial hardship. Fed. 2

R . Civ. P. 26(c). Normally, a plaintiff will be required to make himself or h e rs e lf available for examination in the district in which suit was brought b e c au s e the plaintiff selected the forum. Wright & Miller, Federal Practice a n d Procedure, § 2112 (1994); United States v. Rock Springs Vista Dev., 185 F .R .D . 603, 604 (D. Nev. 1999). M c G in le y v. Baratta, 2006 WL 2346301, at *1 (E.D. Pa., filed Aug. 11, 2006) (compelling p la i n t i ff s to come from Florida to Philadelphia for in-person depositions), quoting S a m p a th a c h a r v. Federal Kemper Life Assurance Co., 2004 WL 2743589, at *1 (E.D. Pa., f ile d Nov. 24, 2004) (compelling plaintiff to come from India to Philadelphia for in-person d e p o s itio n ). Defendant is entitled to take the deposition of plaintiff in person. Plaintiff's averment o f financial hardship is not sufficient in this case to override the general rule that she must a p p e a r for deposition in the forum in which she commenced the action. Defendant is d i re c te d to consult plaintiff in choosing a date, and to choose a date that will be most co n v en ient for plaintiff and her employer.

B Y THE COURT:

/s/ Edmund V. Ludwig Edmund V. Ludwig, J.

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