Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00444-AWT Document 40 Filed 01/14/2004 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROSEMOUNT AEROSPACE INC., :
Plaintiff, : Civil Action No. 303 CV0444 (AWT)
vs. :
WEED INSTRUMENT COMPANY, INC., :
and HARCO LABORATORIES, INC., :
Defendants. : JANUARY 13, 2004
DEFENDANT’S MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR A PROTECTIVE ORDER
Introduction t
Defendant Harco Laboratories, Inc. ("Harco") submits this Memorandum of Law in
Support of its Motion For a Protective Order, pursuant to Federal Rule of Civil Procedure 26(c),
and sanctions under Federal Rules 26(g)(3) and 37(a)(2), against Plaintiff Rosemount Aerospace,
Inc. ("Rosemount”).
The underlying facts are set forth in Harco’s accompanying Motion For A Protective
Order, and for brevity, they are not repeated here. Harco’s Motion should be granted for the
reasons set forth below.
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Argument
HARCO’S MOTION FOR A PROTECTIVE
ORDER AND SANCTIONS SHOULD BE GRANTED
Courts consistently rule that a nonresident plaintiff is required to come to the district in
which the suit is brought for a deposition. Since the plaintiff has chosen the forum, he, she, or it
will not be heard to complain about having to appear in the chosen forum for a deposition, unless
good cause is shown, such as physical illness or iniirmity. Sykes lntemational, Ltd. v. Pilch’s
Poultry Breeding Farms, Inc., 55 F.R.D. 138 (D. Conn. 1972); A.l.A. Holdings, S.A. v. Lehman
Bros., Inc., 2002 WL 1041356, 97 Civ. 4978, 2002 U.S. Dist. LEXIS 9218 (S.D.N.Y. May 20,
2002); United States of America v. Rock Springs Vista Development, 185 603, 604-05
(D. Nev. 1999).
Rosemount has articulated no reason for its refusal to come to Connecticut for its
deposition other than that it simply wants Harco and its counsel to travel to Minnesota for that
deposition, and it was forced to choose Connecticut as the forum because Brad Powell is a
Connecticut resident. The explanation by Rosemount’s counsel makes no sense. Rosemount has
not stated any reason for its position that constitutes good cause. Rather, its position is designed
solely to harass Harco and cause it to incur additional time and expense, with no basis in law.
Courts consistently rule that witnesses and their parties are entitled to the minimal
courtesy of consultation conceming depositions and award sanctions where a protective order
must be sought because counsel refuses to do so. In Hauser v. Farrell, 14 F.3d 1338 (9th Cir.
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Case 3:03-cv-00444-AWT Document 40 Filed 01/14/2004 Page 3 of 4
1994), the Court affirmed a protective order and sanctions against counsel for refusing to change
deposition dates and stated in words equally apt here (14 F.3d at 1343):
Obstructive refusal to make reasonable accommodation, such as
plaintiff exhibited, not only impairs the civility of our profession
and the pleasures of the practice of law, but also needlessly
increases litigation expense to clients.
The same rule applies here. See also, Imperial Chemicals Industries, PLC v. Barr
Laboratories, Inc., 126 F.R.D. 467, 470 (S.D.N.Y. 1989) (ruling that the timing of the deposition
notice was an expedient to force plaintiff to agree to a schedule dictated by defendant, entitling
the plaintiff to a protective order and sanctions against the defendant’s attorneys.)
The refusal by Rosemount’s Minnesota counsel to bring Rosemount to Connecticut for its
deposition and otherwise make reasonable accommodations to Harco and its counsel is designed
solely to harass Harco, increase litigation expense and unnecessarily impose on this Court’s time
and resources. For these reasons, sanctions are warranted against Rosemount and/or its counsel.
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Case 3:03-cv-00444-AWT Document 40 Filed 01/14/2004 Page 4 of 4
Conclusion
For the foregoing reasons, the Motion For a Protective Order should be granted.
Dated: January 13, 2004.
EPSTEIN BECKER & GREEN, P.C.
By /
David S. Poppick, Esq. (#132
Attorneys for Defendants
HARCO LABORATORIES, INC.
and BRAD POWELL
One Landmark Square, 18th Floor
Stamford, CT 06901
(203) 348-3737
and
WISE & WISE
Robert B. Wise, Esq.
Attorneys for Defendant
HARCO LABORATORIES, INC.
1100 Summer Street
Stamford, CT 06905
(203) 359-8877
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