SERVED: APRIL 17,2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON DC /-' fiJ r·,·-, J ' - '' --.:-,\ ' 8 ,(\ t: 0 I 

In The Matter Of: ) 

) 

) 

) 

) 

) 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

Respondent 

Docket No. FAA-2013-0291 

Case No. 2011S0290032 

ORDER DENYING IN PART AND GRANTING IN PART 

THE FAA'S MOTION TO COMPEL THE RESPONDENT 

TO COMPLY WITH NOTICES OF DEPOSITION 

On April 7, 2014, the FAA filed a Reply in Support of Motion to Compel. 

On April 9, 2014, an Order Granting Respondent's Motion to Enlarge Time to Complete 

Fact Witness Depositions was filed. Among other things, this Order stated that separate Orders 

would issue shortly on the Respondent's March 11, 2014 Motion to Compel Production, the 

FAA's March 18,2014 Motion to Compel, and the FAA's April3, 2014 Motion to Compel. 

On April10, 2014 the Office ofHearings ("OH") staff informally contacted the parties, 

and advised them that the assigned Judge in this case had to leave the office on a family medical 

issue, and would address the parties' motions upon return to the office during the week of April 

14-18,2014. 

On April 16, 2014, the OH staff informally contacted the parties, and advised them that 

FAA's April3, 2014 Motion to Compel had not included Attachments A, B, and C, which had 

been referenced in the FAA's Motion. The OH staff requested that the FAA supplement the 

record by filing those referenced documents by facsimile. 

That same day,April16, 2014, the FAA filed by facsimile Attachments A, B, and Cas 

part of a document entitled Motion to Compel Exhibits, 

A. BRIEF DISCUSSION AND ANALYSIS 

This brief discussion and analysis is limited in scope, and does not address every dispute 

raised by the parties in their submitted materials. However, all facts, legal arguments, and legal 
authority contained in the parties' motions, responses, and replie& have been read and fully \ 

considered. 

The FAA's April3, 2014 Motion to Compel seeks an order directing two (2) Respondent 

witnesses to appear for depositions at either the FAA's attorney's office location in College Park, 

Georgia or at a metropolitan area location served by a major airline. In response, the Respondent 

asserts that the two (2) deposition witnesses should be deposed at their corporate office location 

in Wilmington, Ohio. 

Pursuant to 14 C.P.R. 813.220 (b), depositions may be taken either by oral examination 

or written questions. Pursuant to 14 C.P.R. 813.220 GH3), a party seeking to take a deposition 

by oral examination shall serve a notice of deposition "stating the time and place of the 

deposition and the name and address of each person to be examined." In general, this notice must 

be served "not later than 7 days before the deposition." (ld ). 

The language of 14 C.P.R. F13.220 (b) generally follows the federal deposition notice 

requirements in Civ. R. 30(b)(1), which requires a party to give "reasonable notice" priorto the 

deposition, with the notice identifying the time and place of deposition, as well as the name and 

address ofthe deponent. (Civ. R. 30(b)(1)). 

While not required by either 14 C.P.R. 813.220 (b) or Civ. R. 30(b)(l), it is a common 

practice amongst litigators to informally discuss deposition scheduling prior to serving 

deposition notices, in order to ensure witness availability, attorney availability, include sufficient 

time for travel (when needed), agree to a location, and to eliminate or abate any other problems. 

It should be noted, however, that depending on the individual case, this common practice may 

not always be practicable or possible. 

In the instant case, the FAA served its Notices of Deposition first, but included in the 

Notices that the time and place could be changed "as the parties may mutually agree." (FAA 

Exhs. A, 1 and B, 1 ). Upon receipt, the Respondent contacted the FAA about changing the 

location of College Park, GA to Wilmington, Ohio, the location of the Respondent's corporate 

office. The Respondent asserted that the rules only required the witnesses to make themselves 

available in either their employment or residential locations. (FAA Exh. C, 1 ). 

The Respondent relies on general presumptions in deposition setting, and thus is only 

partially correct. Setting the location of a deposition involves multiple factors, and is within the 

discretion and control of the court. Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, 

West Publishing (2012) (Rule 30). See also, Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 

550 (S.D.N.Y. Feb. 17, 1989) (courts have substantial discretion to designate the site of a 

deposition). 

Page 2 of 6 
I 

General presumptions regarding deposition location may be rebutted by a showing that 

"factors of cost, convenience, and litigation efficiency, militate in favor of an alternate location." 

Ambac Assurance Corp. v. Adelanto Public Utility Authority, No. 09 Civ. 5087, 2012 WL 

1589597, at 6 (S.D.N.Y. May 7, 2012). A general presumption facilitates location determination 

when other relevant factors do not favor one side over the other. Mill Run Tours, Inc. v. 

Khashoggi, 124 F.R.D. 547,550 (S.D.N.Y. Feb. 17, 1989). 

In general, plaintiffs are required to travel to the district where the suit is pending for 

their depositions, while defendants can have their depositions taken where they work or live. 

Also, in general, the deposition of a corporation occurs at its principal place of business. Steven 

Baicker-McKee, et.al, Federal Civil Rules Handbook, West Publishing (2012) (Rule 30(b)(l)). 

Thus, a plaintiff seeking discovery usually goes where the desired defendant witnesses are 

normally located. Dwyer v. Deutsche Lufthansa, AG, No. CV-04-3184, 2007 WL 526606, at* 2 

· (E.D.N.Y. Feb. 13, 2007). However, this general presumption is based on the concept that the 

plaintiff brought the lawsuit, and therefore the plaintiff exercised an exclusive choice as to the 

forum, whereas the defendants did not have any forum choice. Where this factual premise is 

attenuated, the presumption is the weakest. Mill-Run Tours, Inc., Id at 550. 

In the case herein, the general presumptions are weakened. Here, the FAA initiated the 

litigation with the Office of Hearings, which is located in Washington, D.C. Unlike federal cases 

filed in the U.S. District Court, the FAA does not choose the hearing location. Instead, the 

parties appearing before the Office of Hearings may recommend a hearing location, but the 

venue site is chosen by the Judge after considering multiple factors. Because cases brought 

before the Office of Hearings are litigated in all 50 states and U.S. Territories, two required 

venue factors in setting the hearing are: it must be held in a metropolitan area in the United 

States that has federal courthouse facilities, and, 2) the site must be served by a major airport. 

Although the Respondent requested the hearing in Washington, D.C., the FAA demonstrated that 

a majority of witnesses were located in Orlando, FL. As a result, Orlando, FL was chosen as the 

hearing site. 

Nevertheless, for purposes of discovery exchange and taking depositions, neither party 

seeks to have the Respondent's depositions conducted in Orlando, FL where the hearing is 

scheduled. The attorneys and the witnesses are located in three different states, which will 

require some travel for any in-person deposition. The Respondent's attorney is located in 

Washington, D.C. The FAA's attorney is located in College Park, GA. The Respondent's 

business location is in Wilmington, OH, where both the Respondent witnesses have offices. 

Wilmington, OH is located approximately 40 minutes car drive by interstate from Dayton, OH, 

and approximately one hour's car drive from Cincinnati, OH. Both Dayton, OH and Cincinnati, 

OH are serviced by major airports. 

Page 3 of6 
Typically, the party noticing the deposition usually has the right to choose the location, 

with general presumptions in mind. However, when a corporation is involved as a party to the 

litigation, the presumption is that depositions of corporate officers will take place at the 

corporation's principal place of business or the corporate officer(s) residential locale. Buzzeo v. 

Board of Education, Hempstead, 178 F.R.D. 390, 392 (E.D.N.Y.l998) (quotations and citations 

omitted); Dwyer v. Deutsche Lufthansa, AG, No. CV-04-3184, 2007 WL 526606, at* 2 

(E.D.N.Y. Feb. 13, 2007); see also Estate ofGerasimenko v. Cape Wind Trading Co., 272 

F.R.D. 385, 390 (S.D.N.Y.2011). 

Upon a corporate defendant's objection to a deposition scheduled at a location other than 

in its principal place of business, "the plaintiff has the affirmative burden of demonstrating 

'peculiar' circumstances which compel the Court to suspend the general [presumption] and to 

order that depositions be held in the other location." Ambac Assurance Corp. v. Adelanto Public 

Utility Authority, No. 09 Civ. 5087, 2012 WL 1589597, at* 6 (S.D.N.Y. May 7, 2012). 

In the case herein, the Respondent's business address is located in Wilmington, OH, and 

it is where the deponents have their offices. (FAA Exh. C, 2 or). The residential locations of the 

two Respondent witnesses are unknown. The FAA has objected to taking depositions at the 

Respondent's Wilmington, OH business location, because Wilmington, OH does not have a 

major airport, and requires first flying into a nearby larger city (i.e., Dayton, OH or Cincinnati, 

OH), and then completing the journey by automobile via interstate highway. (FAA Exh. C, 1; R 

Answer, 2).This automobile journey would take approximately 40 minutes by interstate highway 

from Dayton, OH, and approximately one hour by interstate highway from Cincinnati, OH. 

Although not specifically stated, the FAA's objection to the Wilmington, OH location 

appears to be based on one of the mandatory factors that this court uses in setting venue. Both 

Dayton, OH and Cincinnati, OHare serviced by major airports. Wilmington, OH is not. 

Based on the FAA deposition notices, it appears the parties anticipate that the 

Respondent's corporate witness will be deposed over a two-day period, and the Respondent's 

representative witness will be deposed for one day or less. 1 While the cost-savings offers by the 

Respondent to the FAA are noteworthy (i.e., use of business conference room, use of corporate 

van service) (R Answer, 2), the FAA is not required to accept them. 

1 FAA Exh. A identifies the frrst witness to be deposed on April 14, 2014 (I O:OOam) as "Airborne Maintenance and 

Engineering Services, Inc." FAA Exh. B identifies "Jeff Becker" as the second witness to be deposed two days later, 

on April 16, 2014 (1 O:OOam). ·, 

Page 4 of6 
Part of the Respondent's objection to siting the depositions in either Dayton, OH or 

Cincinnati, OH was that the Respondent would incur hotel costs for both its witnesses and 

Respondent counsel. (R Answer, 2). It should be noted that this assertion of hotel expenses 

appears inconsistent with the Respondent's argument that Dayton and Cincinnati are both in 

"close proximity" to Wilmington, and that a highway trip to or from either city "can hardly be 

said to be 'highly inconvenient."' (R Answer, 2). The Respondent also operates a corporate van 

service to both cities, which it presumptively could offer to its own witnesses and Respondent 

counsel, should they wish. 

However, the general presumption that the depositions of corporate officers should take 

place at the corporation's principal place of business or the corporate officer(s) residential locale 

is still applicable. Absent an affirmative showing by the FAA that an alternate location is needed 

because of cost, convenience, litigation efficiency, or other factors, the general presumption 

should apply. The FAA should schedule the Respondent's corporate witness depositions in 

either Wilmington, OH or in the witnesses' residential locations. 

B. CONCLUSION 

Pursuant to 14 C.F.R. §§13.205(a)(6), and 13.2200), and after reviewing all pleadings, 

motions, relevant caselaw, regulations, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The FAA's Motion to Compel is denied in part. The Respondent witnesses identified in 

the FAA's March 20, 2014 Notices of Deposition, "Airborne Maintenance and 

Engineering Services, Inc." and "Jeff Becker" will not be compelled to appear in College 

Park, GA for depositions. 

2. The FAA's Motion to Compel is denied in part. The Respondent witnesses identified in 

the FAA's March 20, 2014 Notices of Deposition will not be compelled to appear in 

Cincinnati, OH for depositions, unless one or both witnesses reside in that metropolitan 

area. 

3. The FAA's Motion to Compel is granted in part. The Respondent witnesses identified in 

the FAA's March 20, 2014 Notices of Deposition shall appear for deposition in either the 

Wilmington, OH metropolitan area, or in the metropolitan area of the witnesses' 

residential locations. 

4. The Respondent shall immediately advise the FAA of the metropolitan residential 

locations of both the Respondent corporate deposition witnesses. 

Page 5 of6 
5. After consultation with the Respondent's attorney regarding deposition dates and witness 

availability, the FAA shall re-issue Notices of Deposition for the Respondent witnesses, 

which sets the depositions of the Respondent's corporate witnesses either in the 

Wilmington, OH metropolitan area, or in the metropolitan area of the witnesses' 

residential locations. 

6. Separate Orders will issue shortly on the Respondent's March 11, 2014 Motion to 

Compel Production and the FAA's March 18,2014 Motion to Compel. 

Judge J. E. Sullivan 

U.S. Administrative Law Judge 

Attachment: Service List 

Page 6 of6 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W10003 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

ONE COPY 

Office of the Regional Counsel, Southern Region 

P. 0. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Robert P. Silverberg 

Respondent's Counsel 

Silverberg, Goldman & Bikoff, LLP 

Georgetown Place, Suite 120 

1101 301

h St., N.W. 

Washington, DC 20007 

TEL: 202-944-3300 

FAX: 202-944-3306 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department ofTransportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

FDMS No. FAA-2013-0291 

(Civil Penalty Action) 

3 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.