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Rodriguez v. PJ Hafiz Club Management Inc.

United States District Court, D. Minnesota

July 10, 2019

Jacqueline Rodriguez, Plaintiff,
v.
PJ Hafiz Club Management Inc., Defendant.

          ORDER

          ELIZABETH COWAN WRIGHT, UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on Plaintiff Jacqueline Rodriguez's (“Rodriguez”) Motion for Protective Order (Dkt. No. 36) (“Motion for Protective Order”) and Motion to Quash or Compel Defendant's Notice of Deposition (Dkt. No. 37) (“Motion to Quash”). On April 24, 2019, Defendant PJ Hafiz Club Management, Inc. (“PJ Hafiz”) noticed Rodriguez's deposition for May 30, 2019 to occur in Minneapolis, Minnesota. (Dkt. No. 41-1, Ex. C.) In her Motions, brought under Federal Rules of Civil Procedure 26 and 45, Rodriguez asserts that she is a resident of Arizona and has no income, so she is unable to travel to Minnesota for the deposition.[1] (See generally Dkt. Nos. 36, 37.) Rodriguez asks the Court to preclude PJ Hafiz from deposing her or, in the alternative, order PJ Hafiz to depose her via written questions or by other means. (Dkt. No. 36 at 8.) For the reasons stated below, the Motion for Protective Order and the Motion to Quash are denied.

         I. BACKGROUND

         Rodriguez filed this case pro se on October 29, 2018, alleging sexual harassment, negligence, breach of duty, intentional infliction of emotional distress, and battery relating to an alleged September 15, 2018 incident at Sneaky Pete's, a Minneapolis, Minnesota bar managed by PJ Hafiz. (Dkt. No. 1 at 1, 3.) Rodriguez alleged that she is a resident of Flagstaff, Arizona and was visiting Minneapolis, Minnesota on the date of the alleged incident. (Id. at 2.)

         At the same time as the Complaint, Rodriguez filed an Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP Application”), in which she declared under penalty of perjury that she had had no income for the last twelve months. (Dkt. No. 2 at 1.) She also declared under penalty of perjury that she had no assets and no cash and did not expect any major changes to her monthly income or assets during the next twelve months. (Id. at 3, 5.) The Court granted Rodriguez's IFP Application. (Dkt. No. 3.) The Court held an Initial Pretrial Conference on January 31, 2019, at which Rodriguez appeared by telephone. (Dkt. No. 14.) On February 4, 2019, the Court issued the Pretrial Scheduling Order, which set August 30, 2019 as the close of fact discovery. (Dkt. No. 16 at 3.)

         PJ Hafiz has taken two depositions of non-party witnesses, neither of which was attended by Rodriguez. (Dkt. No. 40 at 2.) On April 24, 2019, PJ Hafiz noticed Rodriguez's deposition for May 30, 2019 at its counsel's offices in Minneapolis, Minnesota. (Dkt. No. 41-1, Ex. C.) On April 30, 2019, Rodriguez sent PJ Hafiz a document called “Stipulations to Defendant's Deposition Request” (Dkt. No. 38-1, Ex. B) arguing that she would be unable to travel to Minnesota for a deposition. In the “Stipulations, ” Rodriguez declared under penalty of perjury that she had “zero income and no means of paying to travel 1, 500 miles to be present in person” for her deposition. (Id.) On May 14, 2019, Rodriguez sent PJ Hafiz a letter objecting to the location of the deposition and asking whether the deposition could be taken telephonically, by video conference, or written questions. (Dkt. No. 38-5, Ex. F.) PJ Hafiz responded by offering to reschedule the deposition at a more convenient time for Rodriguez, but insisted that the deposition be in person because counsel planned to use diagrams or photographs of the bar as exhibits to the deposition. (Dkt. No. 38-6, Ex. G.)

         On May 20, 2019, Rodriguez filed the present Motions. (Dkt. Nos. 36, 37.) Rodriguez contends that she is unable to travel over 1, 500 miles from Flagstaff, Arizona to Minneapolis, Minnesota because she “has no income and has no means of paying to travel” that distance. (Dkt. No. 36 at 7.) On May 30, 2019, PJ Hafiz filed its opposition to the Motions. (Dkt. No. 40.) PJ Hafiz contends Rodriguez should be required to travel to Minnesota for her deposition because she chose to sue PJ Hafiz in Minnesota, because granting Rodriguez's Motion for Protective Order “would require Defendant, Defendant's Counsel, and a representative from Defendant's insurer” to travel to Arizona to attend, and because PJ Hafiz's counsel intends to have Rodriguez annotate certain figures and exhibits at her deposition and cannot accomplish this effectively or efficiently via telephone or video conferencing. (Id. at 5-6.)

         In support of her Motions, Rodriguez relied on general assertions that she does not have any income or means of paying travel costs and on the IFP application submitted under penalty of perjury and dated October 26, 2018 (Dkt. No. 2). Accordingly, in an Order dated June 26, 2019, the Court required Rodriguez to supplement the record with a notarized affidavit or a declaration that complied with the requirements of 28 U.S.C. § 1746 that set forth her current financial condition and describe in detail why she is financially unable to travel to Minnesota for her deposition, including identification of (1) all of Rodriguez's income (whether through employment, self-employment, disability payments, public assistance, or other sources), (2) all of Rodriguez's assets, and (3) all of Rodriguez's liabilities and expenses. (Dkt. No. 44.) The deadline for Rodriguez's supplementation passed on July 3, 2019, but to date, Rodriguez has not supplemented the record nor requested additional time to do so.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 26(c)(1)(B) states that “[t]he court may, for good cause, issue an order to protect a party or person from . . . undue burden or expense, including one or more of the following . . . specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery.”[2] The burden is on the movant to show the “good cause” required for issuance of the protective order. Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973). “To make this showing, the moving party cannot rely on broad or conclusory allegations of harm.” Northbrook Digital, LLC v. Vendio Servs., Inc., 625 F.Supp.2d 728, 757 (D. Minn. 2008) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981)). Nonetheless, “[i]t is well settled that the district court has great discretion in designating the location of taking a deposition . . . .” Thompson v. Sun Oil Co., 523 F.2d 647, 648 (8th Cir. 1975) (citing Terry v. Modern Woodmen of Am., 57 F.R.D. 141 (W.D. Mo. 1972)).

         III. DISCUSSION

         A. Federal Rule of Civil Procedure 45 Does Not Apply to Rodriguez's Deposition.

         Rodriguez seeks relief with respect to her deposition pursuant to Federal Rule of Civil Procedure 45, which is the Rule that relates to subpoenas. In particular, she argues that she cannot be required to attend a deposition in Minnesota because she does not live within 100 miles of Minnesota, nor is she employed in Minnesota. (See Dkt. No. 36-1, Ex. B at 2.) However, PJ Hafiz noticed Rodriguez's deposition pursuant to Federal Rule of Civil Procedure 30, not pursuant to a Rule 45 subpoena. (Dkt. No. 41-1, Exs. C, D.) Federal Rule of Civil Procedure 30(a)(1) permits a party to “depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” It has long been the case that “‘[i]t is not necessary to serve a subpoena on a party.'” Peitzman v. City of Illmo, 141 F.2d 956, 960 (8th Cir. 1944) (quoting Spaeth v. Warner Bros. Pictures, 1 F.R.D. 729, 730 (S.D.N.Y. 1941)); see also Fed. R. Civ. P. 45 committee's notes to 2013 amendment (“Depositions of parties, and officers, directors, and managing agents of parties need not involve use of a subpoena.”). Because PJ Hafiz properly noticed Rodriguez's deposition under Rule 30, and not by subpoena under Rule 45, the 100-mile limitation in Rule 45(c)(1)(A) and the “within the state where the person resides, is employed, or regularly transacts business in person” limitation of Rule 45(c)(1)(B)(1) if the person is a party are inapplicable.[3] The Court therefore denies Rodriguez's Motion to Quash and Motion for Protective Order to the extent they are based on Rule 45.

         B. Rodriguez Has Not Shown that Requiring Her Deposition to Occur in Minnesota Would ...


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