Opinion
Civil Action No. 03-0791 Section: I.
October 15, 2004
ORDER AND REASONS
Before the Court is the motion of defendants, Ocean Rig I A/S, Ocean Rig, Inc., Ocean Rig A/S/A, and U.S. Ocean Rig, Inc. (collectively "Ocean Rig defendants"), for review and reversal of the magistrate judge's order that defendants pay the travel expenses associated with plaintiff's counsel's travel expenses to London, England for the deposition of David Cusiter. After a thorough review of the law, the motion, and the record, defendants' motion for reconsideration of the ruling entered by Magistrate Judge Knowles on August 20, 2004, is DENIED.
Rec. Doc. No. 72.
Background
This case stems from injuries sustained by the plaintiff, Willie Garry, on September 10, 2001, when he slipped and fell in the location of the bow thrusters of the M/V BINGO I. At the time of the accident, the vessel was in the Gulf of Mexico engaged in final sea trials of various equipment. Defendant, Ocean Rig, chartered the M/V BINGO I to Exxon Mobil Corporation for service on a drilling project in Angola, Africa. At the time of the accident, Exxon Mobil employees were aboard the vessel and were directing final additions required for the project.Early in the proceedings, plaintiff sought the deposition of David Cusiter ("Cusiter"), Ocean Rig's employee, who was supervising the plaintiff at the time of the alleged accident. Beginning in February, 2004, plaintiff made repeated written and oral requests that Ocean Rig make its employee, Cusiter, available for deposition.
Rec. Doc. No. 69.
After repeated attempts and failures to secure Cusiter for deposition, plaintiff filed a motion to compel, which the Court granted. Defendants objected to Cusiter's deposition anywhere other than the city of his residence, Aberdeen, Scotland, and instead offered plaintiff a telephone deposition. Plaintiff rejected this offer because Cusiter is likely the Ocean Rig defendants' only fact witness. The Magistrate Judge ordered Ocean Rig to make Cusiter available for deposition in New Orleans or in a location between New Orleans and Cusiter's home to be mutually agreed upon by the parties.
Rec. Doc. No. 48. On July 14, 2004, plaintiff's motion to compel was granted in part and dismissed in part as moot. Id.
Rec. Doc. No. 69.
Rec. Doc. No. 69.
Rec. Doc. No. 48. Specifically, the Magistrate Judge ordered that the deposition of Cusiter "shall take place in New Orleans, absent an agreement to proceed in an intermediate location between New Orleans, Louisiana and Aberdeen, Scotland" Id.
Subsequently, the parties agreed to depose Cusiter in Halifax, Nova Scotia, provided that plaintiff's counsel's previously scheduled jury trial did not interfere with the date of the Cusiter deposition. Alternatively, if the parties were unable to commence the deposition in Halifax, Nova Scotia, the deposition would be rescheduled later in the month and take place in London, England This alternative location was allegedly contingent on defendants' payment of plaintiff's counsel's travel expenses.
Rec. Doc. No. 69. Plaintiff's counsel had a previously scheduled jury trial in Louisiana state court. Plaintiff asserts that he was given less than one week's notice that Cusiter would be available for deposition in Nova Scotia. Rec. Doc. No. 78, p. 2.
Rec. Doc. No. 69.
Rec. Doc. No. 69.
Plaintiff's counsel's state trial did not resolve in time to allow Cusiter's deposition to take place in Nova Scotia. The Ocean Rig defendants then filed a motion to reconsider before the Magistrate Judge. The Magistrate Judge ordered that the Ocean Rig defendants pay plaintiff's counsel's travel expenses for one round-trip airfare (i.e. $796.56) and the reasonable cost of one night's stay in London, England
Rec. Doc. No. 69.
Analysis
The issue before the Court is whether the Magistrate Judge erred when he ordered the Ocean Rig defendants to pay the travel costs associated with plaintiff's deposition of Cuister.The Magistrates Act confers authority upon magistrate judges to hear and determine any civil non-dispositive pre-trial matter. 28 U.S.C. § 636(b)(1)(A); see Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). Generally, matters concerning discovery are considered non-dispositive of the litigation. See Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1018 (5th Cir. 1981). A district court will disturb a magistrate's ruling on a non-dispositive matter only when the ruling is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); see 14 MOORE'S FEDERAL PRACTICE § 72.02 (3d ed. 2002). The party challenging the magistrate judge's action in a non-dispositive matter has the burden of "showing that the Magistrate's ruling was clearly erroneous or contrary to law." Granito v. Sunu, 594 F. Supp. 410, 413 (D. Haw. 1984).
The Ocean Rig defendants argue that plaintiff has offered no support for deviation from the rule that depositions should be taken near the residence or place of work of the deponent. Furthermore, they contend that since it was plaintiff's choice to depose Cusiter in person, plaintiff should be responsible for his costs.
While pre-trial costs normally associated with a witness's deposition are incurred by the individual parties, Rule 37(a)(4) mandates an award of expenses "against a party whose conduct necessitated a motion to compel discovery." See Merritt, 649 F.2d at 1019 (finding the magistrate's award of expenses pursuant to Rule 37(a)(4) even after judgment was rendered neither clearly erroneous nor contrary to law). Furthermore, courts have dealt "with disputes caused by depositions in foreign countries through orders providing that a party bear all or a portion of expenses incurred because the deposition is held in the locale chosen by that party." Custom Form Mfg. v. Omron Corp., 196 F.R.D. 333, 338 (N.D. Ind. 2000); see also Heiberg v. Hasler, 1 F.R.D. 737, 737-38 (E.D.N.Y. 1941) (plaintiffs entitled to recover travel expenses incurred to depose defendant who was in Bahamas and preferred to be examined there).
Rule 37 of the Federal Rules of Civil Procedure states in full:
If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified.
Fed.R.Civ.P. 37.
The Ocean Rig defendants object to the Magistrate Judge's order that they pay plaintiff's counsel's travel-related expenses and argue that absent a showing of some "exceptional or compelling" circumstance, plaintiff must pay expenses related to Cusiter's deposition. Specifically, defendants argue that the Magistrate Judge's ruling is inequitable as it forces them to finance plaintiff's investigation and preparation of his case.
Rec. Doc. No. 72.
The Ocean Rig defendants principally rely on General Leasing Co. v. Lawrence Photo-Graphic Supply, Inc., 84 F.R.D. 130, 131 (W.D. Mo. 1979), in support of their contention that the Magistrate Judge's order was contrary to law. General Leasing Company addressed the location of a deposition, not apportionment of costs. 84 F.R.D. at 131. In General Leasing, the court addressed the "exceptional or compelling" circumstances test when determining the location of depositions and not the apportionment of costs between parties when deposing a witness. Id. The Ocean Rig defendants provide no case in which a court was barred from assessing costs on the opposing party after an order to compel discovery was issued.
In this case, the Magistrate Judge's order was not clearly erroneous or contrary to law when he ordered that the Ocean Rig defendants pay plaintiff's reasonable travel expenses incurred with respect to the taking of Cusiter's deposition. It was fully within the Magistrate Judge's purview to assess costs related to an order compelling discovery pursuant to Rule 37. Accordingly, defendants' motion for reversal of the magistrate judge's ruling is DENIED.