Armsey v. Medshares Management Services, Inc.

184 F.R.D. 569, 43 Fed. R. Serv. 3d 223, 1998 U.S. Dist. LEXIS 21340, 1998 WL 995512
CourtDistrict Court, W.D. Virginia
DecidedNovember 16, 1998
DocketNos. Civ.A. 97-039-B, Civ.A. 97-040-B, Civ.A. 97-051-B
StatusPublished
Cited by16 cases

This text of 184 F.R.D. 569 (Armsey v. Medshares Management Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armsey v. Medshares Management Services, Inc., 184 F.R.D. 569, 43 Fed. R. Serv. 3d 223, 1998 U.S. Dist. LEXIS 21340, 1998 WL 995512 (W.D. Va. 1998).

Opinion

MEMORANDUM OPINION

SARGENT, United States Magistrate Judge.

Thése three eases previously have been consolidated for pre-trial discovery and for trial, which is set for March 29 and 30, 1999, in Big Stone Gap. These cases also previously have been referred to the undersigned magistrate judge for resolution of any discovery disputes. These cases are before the undersigned for decision on the Motion to Require Defendants To Produce Party Witnesses Within This Forum filed by Harold and Betty Armsey on October 27, 1998. (Docket Item No. 44.) These eases also are before the undersigned for decision based upon the objections of one of the corporate defendants to ex parte communications by plaintiffs’ counsel with several of its former employees. (Docket Item No. 51.)

These three cases involve claims and counterclaims arising from the purchase of a home health care business by defendant Preferred Choice Acquisition, Inc., from Harold and Betty Armsey and Karen Lindsay, (“the Plaintiffs”), and the subsequent termination of the employment of Harold and Betty Armsey by the defendant Medshares Management Services, Inc., (“Medshares”). The facts are set forth in this opinion only to the extent necessary to address the issues currently before the court.

The Plaintiffs, by counsel, have informed the court that they wish to depose 21 current or former employees of Medshares. The Plaintiffs have moved the court to require that Medshares produce each of these individuals, many of whom live and work in the Memphis, Tennessee, area, for discovery depositions to be conducted in the Western District of Virginia. The Plaintiffs also have sought permission from the court to make informal ex parte contact with five former Medshares employees, Terry McDonough, Sherill Phelps, Bonnie Elosser, Diane Audas and Cheryl Palmer.

Medshares has objected to producing any employees who work and live in Memphis for [571]*571discovery depositions within the Western District of Virginia. Instead, Medshares contends that these depositions should be conducted at its place of business in Memphis. Medshares also objects to Plaintiffs’ counsel making ex parte contact with these former employees.

With regard to the location of the depositions of Medshares’ employees, the Plaintiffs contend that Medshares must produce these employees for depositions to be conducted in the Western District of Virginia because Medshares has filed a counterclaim in one of these cases, Harold Armsey, et al., v. Preferred Choice Acquisition, Inc., et al., Civil Case No. 97-0051-B. In essence, the Plaintiffs contend that, by filing what the Plaintiffs characterize as a permissive counterclaim, Medshares has placed itself in the position of a plaintiff who has elected to file suit in this district. Thus, Medshares should be required to produce its employees for depositions within the district.

Medshares, on the other hand, contends that its counterclaim was compulsory. It also contends that the filing by a defendant of a compulsory counterclaim should not alter the general rule that the deposition of a corporation by its agents and officers should be taken at the corporation’s principal place of business. See Zuckert v. Berkliff Corp., 96 F.R.D. 161 (N.D.Ill.1982); Fischer & Porter Co. v. Sheffield Corp., 31 F.R.D. 534 (D.Del.1962).

The court’s analysis of this issue must start by recognizing that, under the Federal Rules of Civil Procedure, this court has broad discretion to determine the appropriate location for a deposition and may attach conditions, such as the payment of expenses, as it finds appropriate. Fed.R.Civ.P. 26(b) and (c) and 30. Resolution Trust Corp. v. Worldwide Ins. Management Corp., 147 F.R.D. 125, 127 (N.D.Tex.1992). There is an initial presumption that a defendant should be deposed in the district of his residence or principal place of business. Turner v. Prudential Ins. Co. of America, 119 F.R.D. 381, 383 (M.D.N.C.1988). Also, a deposition of a corporation through its agents or officers normally should be taken in the district of the corporation’s principal place of business. Turner, 119 F.R.D. at 383. Under the Federal Rules of Civil Procedure, however, there is a distinction between agents or officers of a corporate party, who may be compelled to attend a deposition based on notice only, and employees who are not officers, directors or managing agents of the corporate party and who must be served with a subpoena to compel their testimony. Burns Bros. v. The B & O No. 177, 21 F.R.D. 142 (E.D.N.Y.1957).

A number of factors, however, may overcome the presumption and persuade a court to permit the deposition of a corporate agent or officer to be taken elsewhere. Resolution Trust Corp., 147 F.R.D. at 127. These factors include location of counsel for the parties in the forum district, the number of corporate representatives a party is seeking to depose, the likelihood of significant discovery disputes arising which would necessitate resolution by the forum court; whether the persons sought to be deposed often engage in travel for business purposes; and the equities with regard to the nature of the claim and the parties’ relationship. Resolution Trust Corp., 147 F.R.D. at 127; Turner, 119 F.R.D. at 383.

Based on my consideration of these factors with regard to the facts presented in this case, I conclude that the depositions of Medshares’ officers Stephen Winters, Paul Winters, William Lenehan and John Simmons should occur within .the Western District of Virginia. As corporate officers of Medshares, it is likely that these individuals often engage in travel for business purposes, including travel to the Western District of Virginia to manage Medshares’ Virginia offices and agencies. I note that Medshares apparently has offices located in the Western District of Virginia in Abingdon and Big Stone Gap. It also is likely that these corporate officers fully understood that doing business in the Western District of Virginia could subject themselves and other corporate representatives to judicial proceedings within the Western District. I also find that, regardless of whether Medshares’ counterclaim is considered to be “compulsory” or “permissive,” Medshares was not required to file this [572]*572counterclaim under Rule 13(a) of the Federal Rules of Civil Procedure because the claim was the subject of another action which had been pending in Accomac County, Virginia, Circuit Court since prior to the filing by the Plaintiffs of these cases. Fed.R.Civ.P. 13(a). By choosing to file the counterclaim in this district, I find that Medshares consciously chose to avail itself of the services of this court, much in the same way as a plaintiff would. Furthermore, based on the tone of this litigation to date, I regret that I must anticipate the likelihood of additional discovery disputes arising which would necessitate resolution by the forum court. Therefore, I hold that Medshares corporate officers should be made available for depositions in this district.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hachem v. Barakat
E.D. Virginia, 2025
Thurston v. Okemo Ltd. Liability Co.
123 F. Supp. 3d 513 (D. Vermont, 2015)
In re Braxton
516 B.R. 787 (E.D. North Carolina, 2014)
In re Outsidewall Tire Litigation
267 F.R.D. 466 (E.D. Virginia, 2010)
Bryant v. Yorktowne Cabinetry, Inc.
538 F. Supp. 2d 948 (W.D. Virginia, 2008)
Yukon Pocahontas Coal Co. v. Consolidation Coal Co.
72 Va. Cir. 75 (Buchanan County Circuit Court, 2006)
Cadent Ltd. v. 3M Unitek Corp.
232 F.R.D. 625 (C.D. California, 2005)
Pruett v. Virginia Health Services, Inc.
69 Va. Cir. 80 (Lancaster County Circuit Court, 2005)
Frank v. LL Bean, Inc.
369 F. Supp. 2d 73 (D. Maine, 2005)
Snowling v. Massanutten Military Academy
57 Va. Cir. 284 (Virginia Circuit Court, 2002)
Lewis v. CSX Transportation, Inc.
202 F.R.D. 464 (W.D. Virginia, 2001)
Rapoca Energy Co. v. AMCI Export Corp.
199 F.R.D. 191 (W.D. Virginia, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
184 F.R.D. 569, 43 Fed. R. Serv. 3d 223, 1998 U.S. Dist. LEXIS 21340, 1998 WL 995512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armsey-v-medshares-management-services-inc-vawd-1998.