## SERVED: APRIL 17,2014 U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS WASHINGTON DC /-' fiJ r·,·-, J 

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In The Matter Of: ) ) ) ) ) ) AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent DocketNo. FAA-2013-0291

Case No. 2011S0290032

ORDERDENYINGIN PARTAND GRANTING IN PART THE FAA'S MOTIONTO COMPEL THE RESPONDENT TO COMPLYWITH NOTICES OFDEPOSITION
OnApril 7, 2014, the FAA filed a Reply in Support ofMotion 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 statedthat separate Orders would issue shortly onthe Respondent's March 11, 2014 Motion to Compel Production, the FAA'sMarch 18,2014 Motion to Compel, and the FAA'sApril3, 2014 Motionto Compel. On April10, 2014 the Office ofHearings ("OH") staffinformally contactedthe 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 ofApril 14-18,2014. On April 16, 2014, the OH staffinformally contacted the parties, and advised themthat FAA's April3, 2014 Motion to Compel had not included Attachments A, B, and C, which had beenreferenced inthe FAA'sMotion. The OH staffrequestedthat the FAA supplementthe record by filing those referenced documents by facsimile. That same day,April16, 2014, the FAA filed by facsimile Attachments A, B, and Cas part ofa document entitled Motion to Compel Exhibits,

A. BRIEFDISCUSSIONAND ANALYSIS This briefdiscussion and analysis is limited in scope, and does not address every dispute raised bythe parties intheir submitted materials. However, all facts, legal arguments, and legalauthority contained inthe parties' motions, responses, and replie& have beenread and fully\ considered. The FAA's April3, 2014 Motionto 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 thatthe two (2) deposition witnesses should be deposed at their corporate office location in Wilmington, Ohio. Pursuantto 14 C.P.R. 813.220 (b), depositions may be taken eitherby oral examination orwritten questions. Pursuantto 14 C.P.R. 813.220 GH3), a party seeking to take a deposition by oral examination shall serve a notice ofdeposition "stating the time and place ofthe deposition and the name and address ofeachperson to be examined." In general, this notice must be served "notlaterthan 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, withthe notice identifying the time and place ofdeposition, 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 priorto serving deposition notices, in orderto ensure witness availability, attorney availability, include sufficient time for travel (when needed), agree to a location, and to eliminate or abate any otherproblems. It should be noted, however, that depending on the individual case, this commonpractice may not always be practicable orpossible. Inthe instant case, the FAA served its Notices ofDeposition first, but included inthe Notices that the time and place could be changed "as the parties may mutually agree." (FAA Exhs. A, 1and B, 1 ). Upon receipt, the Respondent contacted the FAA about changingthe location ofCollege Park, GA to Wilmington, Ohio, the location ofthe Respondent's corporate office. The Respondent asserted that the rules only required the witnesses to make themselves available in eithertheir employment orresidential locations. (FAA Exh. C, 1 ). The Respondentrelies on general presumptions in deposition setting, and thus is only partially correct. Setting the location ofa deposition involves multiple factors, and is within the discretion and control ofthe court. Steven Baicker-McKee, et.al, Federal CivilRulesHandbook, 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 ofa deposition).
Page 2 of6I General presumptions regarding deposition location may be rebutted by a showingthat "factors ofcost, convenience, and litigation efficiency, militate in favor ofan alternate location." AmbacAssurance Corp. v. Adelanto Public UtilityAuthority, No. 09 Civ. 5087, 2012 WL 1589597, at 6 (S.D.N.Y. May 7, 2012). A general presumption facilitates location determination when otherrelevant factors do not favor one side overthe 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 orlive. Also, in general, the deposition ofa corporation occurs at its principal place ofbusiness. Steven Baicker-McKee, et.al, Federal CivilRules Handbook, West Publishing (2012) (Rule 30(b)(l)). Thus, a plaintiffseeking 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 onthe conceptthatthe

plaintiffbroughtthe lawsuit, andtherefore the plaintiffexercised 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., Idat 550.
Inthe case herein, the general presumptions are weakened. Here, the FAA initiated the litigation withthe Office ofHearings, which is located in Washington, D.C. Unlike federal cases filed inthe U.S. District Court, the FAA does not choose the hearing location. Instead, the parties appearing before the Office ofHearings may recommend a hearing location, but the venue site is chosenbythe Judge after considering multiple factors. Because cases brought before the Office ofHearings 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 ofwitnesses were located in Orlando, FL. As a result, Orlando, FL was chosen as the hearing site. Nevertheless, for purposes ofdiscovery exchange and taking depositions, neitherparty 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 boththe 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 servicedby major airports.
Page 3 of6Typically, 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 partyto the litigation, the presumption is that depositions ofcorporate officers will take place at the corporation's principal place ofbusiness or the corporate officer(s) residential locale. Buzzeo v. Boardof 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 otherthan in its principal place ofbusiness, "theplaintiffhas the affirmative burden ofdemonstrating 'peculiar' circumstances which compel the Courtto suspend the general [presumption] and to orderthat depositions be held in the other location."AmbacAssurance Corp. v. AdelantoPublic UtilityAuthority, 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 inWilmington, OH, and it is where the deponents have their offices. (FAA Exh. C, 2 or). The residential locations ofthe two Respondent witnesses are unknown. The FAA has objected to taking depositions atthe Respondent's Wilmington, OH business location, because Wilmington, OH does nothave a major airport, and requires first flying into a nearby larger city (i.e., Dayton, OH or Cincinnati, OH), and then completingthejourneyby automobile via interstate highway. (FAA Exh. C, 1; R Answer, 2).This automobilejourney 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 objectionto the Wilmington, OH location appears to be based on one ofthe mandatory factors that this court uses in setting venue. Both Dayton, OH and Cincinnati, OHare serviced by major airports. Wilmington, OHis not. Based onthe 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 bythe Respondentto the FAA are noteworthy (i.e., use ofbusiness conference room, use ofcorporate van service) (RAnswer, 2), the FAA is not required to accept them.

1FAA Exh. A identifies the frrst witness to be deposed on April 14, 2014 (IO:OOam) as "Airborne Maintenance and Engineering Services, Inc." FAA Exh. B identifies "JeffBecker" as the second witness to be deposed two days later, on April 16, 2014 (1O:OOam). ·, Page 4 of6Part ofthe Respondent's objectionto siting the depositions in either Dayton, OH or Cincinnati, OH was thatthe Respondent would incur hotel costs for both its witnesses and Respondent counsel. (RAnswer, 2). It should be noted that this assertion ofhotel expenses appears inconsistent withthe Respondent's argument that Dayton and Cincinnati are bothin "closeproximity" to Wilmington, and that a highwaytrip to orfrom eithercity "canhardly be said to be 'highly inconvenient."' (R Answer, 2). The Respondent also operates a corporate van service to both cities, which itpresumptively could offerto its own witnesses and Respondent counsel, should they wish. However, the general presumptionthatthe depositions ofcorporate officers shouldtake place at the corporation's principal place ofbusiness orthe corporate officer(s) residential locale is still applicable. Absent an affirmative showing bythe FAA that an alternate location is needed because ofcost, convenience, litigation efficiency, or other factors, the general presumption should apply. The FAA should schedule the Respondent's corporate witness depositions in eitherWilmington, OH or inthe 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 Motionto Compel is denied in part. The Respondent witnesses identified in the FAA's March 20, 2014 Notices ofDeposition, "Airborne Maintenance and Engineering Services, Inc." and "JeffBecker" will not be compelledto appear in College Park, GA for depositions. 2. The FAA's Motion to Compel is denied inpart. The Respondent witnesses identifiedin the FAA'sMarch 20, 2014 Notices ofDeposition will notbe compelledto appear in Cincinnati, OH for depositions, unless one or bothwitnesses reside inthat metropolitan area. 3. The FAA'sMotionto Compel is granted in part. The Respondent witnesses identified in the FAA's March 20, 2014 Notices ofDeposition shall appear for deposition in eitherthe Wilmington, OHmetropolitan area, orin the metropolitan area ofthe witnesses' residential locations. 4. The Respondent shall immediately advise the FAA ofthe metropolitan residential locations ofboththe Respondent corporate deposition witnesses.
Page 5 of65. After consultation withthe Respondent's attorney regarding deposition dates and witness availability, the FAA shall re-issue Notices ofDeposition for the Respondent witnesses, which sets the depositions ofthe Respondent's corporate witnesses either in the Wilmington, OH metropolitan area, or in the metropolitan area ofthe witnesses' residential locations. 6. Separate Orders will issue shortly on the Respondent's March 11, 2014 Motionto Compel Production and the FAA'sMarch 18,2014Motion to Compel.

Judge J. E. Sullivan U.S. Administrative LawJudge

Attachment: Service List

Page 6 of6SERVICE 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 WilburWright Building-Suite2W10003

Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration ONE COPY

Office ofthe 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 301h St., N.W. Washington, DC 20007 TEL: 202-944-3300 FAX: 202-944-3306 Judge J.E. Sullivan U.S. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.