Michael Espinosa v. Stevens Tanker Division. LLC

Filing 105

ORDER DENYING 100 Motion for Protective Order. Signed by Judge Xavier Rodriguez. (aej)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
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MICHAEL ESPINOSA, ET AL.,
Plaintiffs,
v.
STEVENS TANKER DIVISION, LLC,
Defendant.

Civil Action No. SA-15-CV-879-XR

ORDER
On this date, the Court considered Defendant Stevens Tanker Division LLC’s Motion for
Protective Order (Docket no. 100) and the corresponding response and reply. After careful
consideration, the Court DENIES the motion.
BACKGROUND
This case is an FLSA collective action. Defendant Stevens is or was the employer of the
named plaintiff and the opt-ins. The plaintiffs are a conditionally certified class consisting of
“[a]ll past or present salaried dispatchers who worked for [Stevens] any time since October 12,
2012, at any of [Stevens’] locations, who were not paid overtime compensation.” Docket no. 40
at 6.
Discovery in this case has had a contentious history, some of which is relevant to the
present discovery fight. Previously, the discovery deadline was March 1, 2017. Docket no. 53 at
1. With that deadline approaching, Plaintiffs noticed the deposition of Stevens’ corporate
representative via Federal Rule of Civil Procedure 30(b)(6) for March 1 in San Antonio (where
Class Counsel is located and where this lawsuit is pending). Docket no. 82 at 5. Defendant was
planning to offer Scott Mellman as its corporate representative, but filed its first motion for

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protective order, seeking to have the deposition moved from San Antonio to Dallas (where
Stevens is headquartered and where Mellman resides). See generally id.
The Court took up Stevens’ first motion for protective order (and five other motions) at a
hearing on February 27. Docket no. 86. There, Stevens withdrew its first motion for protective
order. Id. at 2–3. As Stevens’ counsel explained, Mellman’s wife unexpectedly went into labor,
thus rendering Mellman unavailable for the deposition. Id. at 2. Stevens decided to substitute a
different corporate representative who resides in San Antonio, mooting its first motion for
protective order. Id. at 2–3. Also at the February 27 hearing, the Court granted Plaintiffs’ request
to extend the discovery period to May 1 (partly to allow Plaintiffs to take more depositions). Id.
at 26. Due to the extension of the discovery period, Stevens asserts that Class Counsel cancelled
the 30(b)(6) deposition that was set for March 1. Docket no. 102 at 1.
Less than a month later, a new discovery fight arose. Plaintiffs filed a Motion to Set
Deadline for Compliance and to Compel Depositions, requesting in relevant part that the Court
“order Defendant to provide multiple dates to consider for the depositions requested so that
mutually agreeable dates may be selected.” Docket no. 92 at 2. In a March 29 text order, the
Court stated “As to Plaintiffs request that Defendant provide deposition dates for the witnesses
identified at the February 27 hearing, Plaintiffs are authorized to notice depositions of these
witnesses on a date convenient for Plaintiffs’ counsel if Defendant does not provide dates by
April 4, 2017.”
On April 5, acting pursuant to this text order, Plaintiffs noticed the deposition of Stevens’
corporate representative for May 1 in San Antonio. Docket no. 100 at 5, 21. On April 14, 2017,
Stevens filed its second motion for protective order that is now before the Court. Docket no. 100.

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By this motion, Stevens seeks to ensure that Mellman’s 30(b)(6) deposition occurs in Dallas
rather than San Antonio. Id.
Plaintiffs oppose this request. Docket no. 102. They point out that Stevens previously
withdrew a similar objection, and further that Stevens’ waited too long to request Class
Counsel’s cooperation in relocating the deposition. Id. at 2. Plaintiffs argue that between April 5
(when they noticed the deposition) and April 13 (when Stevens reached out to relocate the
deposition), Class Counsel scheduled a pretrial conference in another matter in Brownsville on
May 2 and two depositions in another matter in San Antonio on May 3. Id.
DISCUSSION
“It is well settled that the deposition of a corporation by its agents and officers should
ordinarily be taken at its principal place of business, especially when . . . the corporation is the
defendant.” Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (internal quotations and
alterations omitted). District courts in the Fifth Circuit have treated this as a presumption that can
be overcome when the plaintiff seeking the deposition shows good cause for allowing the
deposition to be held in a location other than the corporation’s principal place of business. E.g.,
West v. Velo Enter. Co., Ltd, SA-13-CV-024-OLG, 2014 WL 12480008, at *1 (W.D. Tex. June
9, 2014). Some district courts have required “peculiar circumstances” to overcome this
presumption. Tailift USA, Inc. v. Tailift Co., Ltd., CIV.A.3:03-CV-0196-M, 2004 WL 722244, at
*2 (N.D. Tex. Mar. 26, 2004). In either event, whether the plaintiff has overcome this
presumption depends on the following factors: (1) whether counsel for the parties are located in
the forum district; (2) whether the deposing party is seeking to depose only one corporate
representative; (3) whether the corporation chose a corporate representative that resides outside
the location of the principal place of business and the forum district; (4) whether significant

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discovery disputes may arise and there is an anticipated necessity of resolution by the forum
court; and (5) whether the claim’s nature and the parties’ relationship is such that an appropriate
adjustment of the equities favors a deposition site in the forum district. Resolution Trust Corp. v.
Worldwide Ins. Mgmt. Corp., 147 F.R.D. 125, 127 (N.D. Tex. 1992), aff’d sub nom. Resolution
Trust v. Worldwide, 992 F.2d 325 (5th Cir. 1993). 1
Neither party lists these factors and explicitly addresses them, but the Court finds that
Plaintiffs have overcome the presumption and Stevens’ motion should be denied. The first factor
is neutral because Class Counsel is located in San Antonio while Stevens’ counsel is located in
Dallas. The second factor favors Plaintiffs because they only seek to depose one corporate
representative, and Stevens will not be repeatedly subject to this hardship. The third factor also
favors Plaintiffs because Stevens has chosen Mellman as its corporate representative, even
though it could have chosen a corporate representative who lives in San Antonio; indeed,
Stevens resolved the parties’ first iteration of this dispute by offering its San Antonio-based
corporate representative in Mellman’s place. The fourth factor heavily favors Plaintiffs given the
contentious history of this case, the numerous discovery disputes that have already arisen, and
the likelihood that still more will arise. Finally, the fifth factor favors Stevens based on the
disparity of depositions that have been taken in San Antonio as opposed to Dallas, but this factor
favors Stevens only slightly because San Antonio is the forum for this litigation. On balance,
these factors show good cause for conducting the deposition in San Antonio, even though
Stevens’ corporate headquarters is in Dallas.

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West, which requires “good cause,” and Tailift, which requires “peculiar circumstances,” both cite
Resolution Trust Corp. and analyze its five factors to determine whether the presumption has been overcome.

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CONCLUSION
For the foregoing reasons, Defendant Stevens Tanker Division LLC’s Motion for
Protective Order (Docket no. 100) is DENIED.
It is so ORDERED.
SIGNED this 20th day of April, 2017.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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