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Dingeldey v. VMI-EPE-Holland B.V.

United States District Court for the Western District of New York

May 8, 2018, Decided; May 8, 2018, Filed




In this products liability case, Plaintiff, by papers filed April 6, 2018 (Dkt. 23) moves, pursuant to Fed.R.Civ.P. 37 ("Rule 37") to compel Defendants' oral deposition under Fed.R.Civ.P. 30(b)(6) ("Rule 30(b)(6)") be conducted in Buffalo rather than Epe, Netherlands, where Defendant VMI-EPE-Holland B.V. ("VMI-EPE-Holland) is located. As an accommodation to Plaintiff, Defendants have proposed Amsterdam, Netherlands, approximately one hour from Epe, as the location for the deposition. Plaintiff's deposition notice was originally served pursuant to N.Y.C.P.L.R. 3107 in August 2015, designating Plaintiff's counsel's office in Eden, New York as the venue for Defendants' deposition prior to Defendants' removal to this court. Defendants' have designated Edwin van der Veen ("van der Veen" or "Mr. van der Veen"), a senior manager at VMI-EPE-Holland's manufacturing facility in Epe. According to counsel, discovery had proceeded amicably until Defendants' insistence that the [*2]  deposition take place in the Netherlands, at Defendant place of business in Epe, Netherlands. Defendants have cross-moved (Dkt. 24 at 1) for a protective order pursuant to Fed.R.Civ.P. 26(c) ("Rule 26(c)") contending that, consistent with the general rule and presumption, a defendant's Rule 30(b)(6) deposition should be conducted in the designated witness's place of business, in this case, Epe, Netherlands. See S.E.C. v. Aly, 320 F.R.D. 116, 118 (S.D.N.Y. 2017) ("rebuttable presumption that, absent special circumstances, the deposition of a defendant will be held where the defendant resides") (citing caselaw); Bank of New York v. Meridien BIAO Bank of Tanzania, Ltd., 171 F.R.D. 135, 155 (S.D.N.Y. 1997) (citing caselaw).1 However, where "unusual circumstances exist which would justify defendant's inconvenience," Federal Deposit Insurance Company v. La Antillana, S.A., 1990 U.S. Dist. LEXIS 13246, 1990 WL 155727, at *1 (S.D.N.Y. Oct. 5, 2990), the location of an oral deposition is within the discretion of the court after considering factors of cost, convenience, and litigation efficiency. See Aly, 320 F.R.D. at 118 (citing caselaw); Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550-51 (S.D.N.Y. 1989) (citing caselaw). In this case, the court finds that the presumption favoring van der Veen's place of business as the location for his Rule 30(b)(6) deposition is not displaced and that all of the relevant factors for the exercise of the court's discretion to decide the location of the deposition favor Defendants.

Where, as here, a defendant's presence in the forum is not voluntary and plaintiff [*3]  had a choice of forum, i.e., the Netherlands, as Plaintiff acknowledged at oral argument, the presumption remains intact. Mill-Run Tours, Inc. 124 F.R.D. at 550 (presumption falls away where plaintiff had no practical choice as to the selected forum and where no other forum would have been convenient for all parties); La Anttillana, S.A., 1990 U.S. Dist. LEXIS 13246, 1990 WL 155727, at *2 (presumption that deposition should take place at defendants' principal place of business in Argentina not rebutted where plaintiff had "pragmatic" choice of forum, i.e., New York or Argentina). Although based on the alleged defective machine which caused Plaintiff's serious injuries being sold for use in this area establishing, as the court has found, long-arm jurisdiction over Defendants in New York, Dingeldey v. VMI-EPE-Holland B.V., 2016 U.S. Dist. LEXIS 138041, 2016 WL 6273235 (W.D.N.Y. Sept. 28, 2016), report and recommendation adopted, 2016 U.S. Dist. LEXIS 148260, 2016 WL 6248680 (W.D.N.Y. Oct. 26, 2016), such basis for long-arm jurisdiction does not, contrary to Plaintiff's assertion, Plaintiff's Reply Memorandum, Dkt. 26, at 2, overcome the presumption as necessary to establish a defendant should be deposed in the forum's jurisdiction. See Gulf Union Ins. Co. of Saudi Arabia v. M/V Lacerta, 1992 U.S. Dist. LEXIS 2759 , 1992 WL 51532, at *5 (S.D.N.Y. Mar. 1992) (citing La Anttillana S.A., 1990 U.S. Dist. LEXIS 13246, 1990 WL 155727, at **1-2 (use of a New York bank account by defendants does not displace presumption)). Thus, no special or unusual circumstances are presented in this case warranting that the presumption be displaced and the presumption that Defendants [*4]  should be deposed in the Netherlands in accordance with the general rule remains applicable. Aly, 320 F.R.D. at 118 (where court finds presumption displaced by plaintiff's lack of practical choice as to a safe forum court will exercise discretion based on cost, convenience and litigation efficiency); Mill-Run Tours, Inc., 124 F.R.D. at 550 (court determines initially whether plaintiff's lack of practical choice as to forum displaces presumption prior to exercise of court's discretion). Moreover, even assuming the presumption should be suspended here, the factors of relative costs, convenience of counsel and witnesses, and efficient adjudication favor Defendants.

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2018 U.S. Dist. LEXIS 77553 *; 2018 WL 2119618


Prior History: Dingeldey v. VMI-EPE-Holland B.V., 2016 U.S. Dist. LEXIS 138041 (W.D.N.Y., Sept. 28, 2016)


deposition, Defendants', van, convenience, protective order, oral argument, displaced, caselaw