Arnett v. Howard et al

Filing 107

MEMORANDUM DECISION and ORDER denying 105 Motion to Quash. Signed by Magistrate Judge Dustin B. Pead on 2/12/2015. (blh)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JAMES ARNETT,
MEMORANDUM DECISION & ORDER

Plaintiff,

Case No. 2:13-cv-00591-TS

v.
BENJAMIN SNOW HOWARD;
LIFELINE MEDIA LLC, a Utah entity;
NATIONWIDE AFFORDABLE
HOUSING, a Texas corporation; and the
BEN HOWARD TRUST, an Idaho trust,

United States District Court
Judge Ted Stewart
Magistrate Judge Dustin Pead

Defendants.

This matter comes before the Court pursuant to a 28 U.S.C. §636(b)(1)(A) referral from
District Court Judge Ted Stewart (doc. 61). Currently pending before the Court is Plaintiff
James Arnett’s (Plaintiff) “Motion To Quash ” his deposition scheduled for February 18, 2015, in
Salt Lake City, Utah (doc. 105).
PENDING MOTION
On February 4, 2015, Plaintiff filed his motion to quash asserting that Defendants have
provided him with “an insufficient number of days notice. . . to make arrangements to travel from
Tucson, Arizona to Draper, Utah” (doc. 105, p.3). Additionally, Plaintiff asserts that the timing
of his deposition is “highly irregular” given that the Defendants have not yet filed responses to
Plaintiff’s Admissions and Interrogatories. Id. In response, Defendants contend that they are
entitled to conduct Plaintiff’s deposition in Utah and are not required to respond to any requests
prior thereto (doc. 106).

Given the rapidly approaching deposition and fact discovery dates, the Court now rules as
follows and denies Plaintiff’s motion.1
ANALYSIS
As an initial matter, there is no requirement that Defendants submit or respond to written
requests for discovery prior to a deposition. Further, it is the examining party that determines the
location of a deposition, subject to the court’s power to designate a different location through a
protective order pursuant to Fed. R. Civ. P. 26(c)(2). See Riley v. Murdock, 156 F.R.D. 130, 132
(E.D.N.C. 1994) (finding that the party noticing the deposition has the right to choose the
location of the deposition). Thus, when the party deposed is the plaintiff, a deposition is
appropriate in the district where the suit was brought since it is “plaintiff [who] has selected the
forum and should not be heard to complain about having to appear there for a deposition.”
Koengeter v. Western Wats Ctr., Inc., 2010 U.S. Dist. LEXIS 102031, *3 (D. Utah 2010) (citing
Gipson v. Southwestern Bell Tel. Co., 2008 U.S. Dist. LEXIS 77481, *15 (D. Kan. October 1,
2008) ; see also, Shockey v. Huhtamaki, Inc., 280 F.R.D. 598, 600 (D. Kan 2012); Clem v. Allied
Van Lines Int’l. Corp., 102 F.R.D. 938, 939 (S.D.N.Y. 1984); W.H. Brady Co. v. DormanBogdonoff Corp., 36 Fed. R. Serv. 2d 307 (D. Mass. 1982).2

1

The Court recognizes that this ruling is issued without the benefit of Plaintiff’s reply
memorandum. The relevant legal issues and arguments, however, are fully before the court and
have been appropriately addressed in the parties’ respective briefing (doc. 105, doc 106).
Moreover, given the approaching deposition date, the Court finds it in the best interest of all
parties to issue a ruling quickly so as to facilitate necessary travel accommodations.
2

Here, the Court notes that Plaintiff did not choose to file his action in Utah and instead
filed his original complaint the Arizona Federal District Court (4:12-cv-00311–TUC-DTF).
However, thereafter, on June 25, 2013, the Arizona Court determined that Utah, not Arizona, was
the appropriate venue for Plaintiff’s action and, as a result, transferred the lawsuit to this court
(doc. 50). Thus, while Plaintiff did not choose to file his action here, this court is the appropriate
2

Upon review, the court concludes that Plaintiff’s motion to quash should be denied and
that Plaintiff is required to personally appear in Utah for his properly noticed deposition. While
the court is not unsympathetic to Plaintiff’s circumstances, Plaintiff should assume that his
deposition will be conducted in the district in which his lawsuit is maintained. Moreover, while
rule 26 requires that the court protect parties from “undue burden or expense,” the court finds
that although travel to Utah may be difficult and costly for Plaintiff, it is not unduly so. Fed. R.
Civ. P. 26(c)(1). Plaintiff is moving forward with his suit in the District of Utah and should
therefore anticipate that his presence in the forum state would be required.
ORDER
For the reasons now stated herein, Plaintiff’s Motion To Quash is hereby DENIED
(doc. 106). Plaintiff is ORDERED to appear at his properly noticed deposition in Salt Lake
City, Utah, on February 18, 2015.
In the interest of time, in addition to sending a copy of this Order to Plaintiff via U.S.
mail, the Clerk’s Office is also instructed to email a copy directly to Plaintiff at:
[e-mail].
Dated this 12th day of February, 2015

______________________________
Dustin Pead
U.S. Magistrate Judge

forum for his claims and Plaintiff continues to maintain and move forward with his case in the
state of Utah.
3