United States District Court, W.D. Texas, Austin Division
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
the Court are Plaintiff's Motion to Compel Depositions
(Dkt No. 9); Defendants' Response (Dkt. No. 11); and
Plaintiffs' Reply (Dkt. No. 12).
a personal injury truck-motorcycle accident case removed to
federal court based on diversity. Plaintiff Mitchell Adams
alleges that Defendant Katlin Powell, while driving an
eighteen wheeler owned by Defendant Powell Enterprizes, LLP,
made an unsafe lane change, striking Adams' motorcycle
and causing him to crash. The crash occurred in Austin,
Texas. Adams resides in Travis County, Texas. Powell resides
in DeRidder, Louisiana. Powell Enterprizes, LLP's place
of business is in DeRidder, Louisiana.
moves to compel the depositions of Defendant Katlin Powell
and Rod Powell, the owner of Defendant Powell Enterprizes,
LLP. Plaintiff Adams asserts that he has by agreement
scheduled and noticed the depositions of Defendants twice and
in each instance, Defendants have cancelled at the last
minute. Defendants respond that the first agreement to take
Defendants' depositions was contingent upon Defendants
taking Adams' deposition. Defendants maintain they have
not taken Adams' deposition because they are still
waiting for the receipt of Adams' medical and mental
health records, without which they state they cannot proceed
with the deposition.
regard to the second instance, Defendants assert that the
Powells incorrectly believed the deposition was to take place
in Houston, which is three hours closer to their home in
Louisiana. Upon finding out the deposition was scheduled for
Austin, Rod Powell informed counsel that day that he would be
unable to make a twelve hour round trip drive to Austin on
that date because he had work and family conflicts. Katlin
Powell allegedly had similar conflicts. Defendants assert
that Defendants' location in DeRidder, Louisiana, 329
miles from the proposed deposition site in Austin, is a
“major obstacle.” Dkt. No. 11 at 3. Defendants
argue that DeRidder, Louisiana does not have an airport with
regular flights to Austin, and therefore they must drive,
requiring them to “spend considerable time traveling to
appear, and they are unable to operate their business or work
as a result.” Id. Additionally, citing Rule
30(b)(6), Rod Powell argues that as an agent or officer of
Defendant Powell Enterprizes, LLP, his deposition should be
taken at its principal place of business in DeRidder,
Louisiana. Defendants request that they be deposed in
Houston, Texas, or DeRidder, Louisiana, asserting this would
give them more flexibility as to dates.
responds that Defendants' arguments are without merit.
First, Adams asserts that Defendants are not justified for
their failure to appear based on the desire to take
Adams' deposition simultaneously. Adams also notes that
Defendants' counsel has not noticed Adams'
deposition. Second, Adams asserts that Defendants cannot fail
to appear for properly noticed depositions merely because
they deem the location burdensome. Adams asserts that his
counsel has offered to take the depositions in locations
other than Austin, and requested counsel's input as to
where to notice the depositions. In fact, in both of the
instances in which the depositions were noticed,
Defendants' counsel had agreed to the date and location,
yet Defendants did not file a motion for a protective order
but instead merely failed to show up with minimal warning.
Adams asserts that his expert reports were due April 5, 2019,
and he needs Defendants' depositions to determine what
expert testimony might be required in the case and have time
to prepare reports. Adams request that the Court require
Defendants to provide dates and appear for deposition at his
counsel's office within 10 days of the date of the
Court's order, and that Adams' expert disclosure date
be extended by 45 days from the date the deposition are
parties to a case cannot agree on matters such as those
presented here, the only recourse the Court has is to apply
and enforce the specific directives of the Federal Rules. The
rules provide that a party seeking another party's
deposition may notice the deposition, and, if the deponent
fails to appear, file a motion under Federal Rule of Civil
Procedure 37(d)(1)(A). See generally Robinson v. Dallas
Cty. Cmty. Coll. Dist., 2016 WL 1273900, at *2 (N.D.
Tex. Feb. 18, 2016). Rule 37(d)(1)(A) provides that
“[t]he court where the action is pending may, on
motion, order sanctions if: (i) a party or a party's
officer, director, or managing agent . . . fails, after being
served with proper notice, to appear for that person's
deposition.” Fed.R.Civ.P. 37(d)(1)(A)(i).
regard to the location of the deposition, Rule 45 provides
that a subpoena may command attendance at a “trial,
hearing, or deposition” anywhere “within 100
miles from where that person resides, is employed, or
regularly transacts business in person, ” or
“within the state where the person resides, is
employed, or regularly transacts business in person, if the
person (i) is a party or a party's officer; or (ii) is
commanded to attend a trial and would not incur substantial
expense.” Fed.R.Civ.P. 45 (c)(1)(A), (c)(1)(B). Thus, a
party may be compelled to attend a deposition in a state
where he does not reside if he is employed in that state or
regularly transacts business in person in that state.
Defendants' argument that they will not submit to
depositions unless they first take or arrange Adams'
deposition is without merit. The rules contain no such
requirement, nor do they permit such a demand. Moreover,
Defendants have apparently failed to notice Adams'
deposition, and the explanation that they have not done so
because they have not received discovery from Adams lacks
merit given that Defendants have not filed any motion seeking
to compel that discovery. Regardless, any failure by Adams to
meet his discovery obligations is irrelevant, as that is not
a valid basis on which a party may refuse to respond to a
because the depositions are of parties, the Court has little
sympathy with the argument that depositions in Austin are too
inconvenient and will take Defendants away from their work.
While they are employed as truck drivers, nothing requires
the parties to drive to these depositions. And while
DeRidder, Louisiana, may not have a large commercial airport,
it is less than one hour's drive from Lake Charles,
Louisiana, which does have an airport with regular flights to
Austin. Plaintiff's counsel has been amenable to holding
these depositions outside of Austin, and Defendants have not
raised the issue of the convenience of the location until the
last minute. This smacks of mere uncooperativeness and not a
legitimate reason for canceling the depositions.
Unfortunately, being named as a party in litigation often
requires missing work and other inconveniences, which must
take a back seat to the obligations imposed on a party to a
lawsuit by the Federal Rules of Civil Procedure.
Plaintiffs Motion to Compel Depositions (Dkt No. 9) is
GRANTED. Defendant Katlin Powell and
Defendant Rod Powell are ORDERED to appear
for deposition within 21 days of the date of this order, or
any other date that is agreed upon by all parties. To be
clear, absent another agreement, the Powells must submit to
depositions no later than 21 days from the date of this
order. The depositions shall take place in Austin. It is
FURTHER ORDERED that the parties confer and
agree on a date for the depositions. Finally, because no
scheduling order has been ...