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IN THE SUPERIOR COURT OF GUAM
10 OXFORD PROPERTIES AND FINANCE CIVIL CASE NO.: CV1049-16 LTD. and OXFORD GUAM INC.,
PLAINTIFF, DECISION AND ORDER (Defendants' Motion to Compel vs.
Plaintiff's Attendance at Defendants'
Deposition in Guam)
CHRISTINE A. LEE aka ANNA LEE and 15 HELLO LEE GLOBAL (GUAM) INC.,
DEFENDANT.
INTRODUCTION
This matter came before the Honorable Anita A. Sukola on November 22, 2017 on Christine
20 Q A. Lee aka Anna Lee and Hello Lee Global (Guam) Inc.'s ("Defendants") Motion to Compel 21 Plaintiffs' Attendance at Defendants' Deposition in Guam. Defendant appeared with counsel, 22 Attorney James M. Maher. Attorney Anita P. Arriola appeared on behalf of Oxford Properties and 23 Finance Ltd. and Oxford Guam Inc. ("Plaintiffs"). Upon review of the written and oral arguments
24 and legal authorities, the Court hereby GRANTS the Defendants' Motion to Compel Plaintiff' s i
25 Attendance at Defendants' Deposition in Guam.
26 i/// 27 I /// 0RIG!NAL
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee Er al. Page 1 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Dens' Dep. in Guam)
BACKGROUND
On November 28, 2016, the Plaintiffs initiated this action by verified complaint wherein the 3 Plaintiffs allege that from April 2014 through October 2016, Defendants collected rent from tenants 4 for certain real properties in Guam that belong to Plaintiffs. Verified Con pl. iI 7 (Nov. 28, 2016). 5 E The Plaintiffs allege that after repeated demands for the rent amounts, Defendants refused and the amount collected and owed to Plaintiffs is at least $132,689. 19. ii The Plaintiffs further allege that 7 the Defendants also obtained a distribution from a Trust Account in the amount of $217,500.00, 8 and similarly refused to pay the amount to Plaintiffs. Id at '][ 8. Based on these allegations, the 9 2 Plaintiffs' suit pleads (1) Misappropriation of Funds and Property, (2) Conversion, and (3) 10 E Accounting, and seeks damages, including punitive damages, from Defendant. at q['][ 10-25 .
On September ll, 2017, Defendants filed a Motion to Compel Plaintiffs' Attendance at 12 Defendants' Deposition in Guam. Pursuant to the Guam Rules of Civil Procedure, the parties filed a 13 E Written Stipulation stating their positions. Deal. of James M. Maher in Supp. Dens' Mot. Compel 14 Dep. Ex. 1 (Sep. 11, 2017). The written stipulation provides that Mr. Eric Chiu, the proposed 15 deponent for the deposition at issue, was designated by Plaintiff as custodian of records for Oxford 16 Properties and Finance Ltd. Li at 1. Mr. Chiu also signed the verified complaint initiating this
17 action on behalf of the Plaintiffs. The Written Stipulation indicates Defendant seeks to depose Mr. 18 a Chiu under Rule 30(b)(6) of the Guam Rules of Civil Procedure. QL at 1. However, when the
19 Defendant noticed the deposition, the parties "were unable to agree on the location of the proposed 20 i deposition." Defs' Mot. Compel Dep. 2 (Sept. 11, 2018).
The Plaintiffs tiled an opposition to the Defendants' Motion on October 9, 2017 and 22 attached a declaration of Mr. Eric Chiu. Mr. Chiu has lived in Hong Kong all his life and he works as the financial officer for a group of fifty-seven companies, including the Plaintiffs. Decl. of Eric 24 a Chiu in Supp. Pls' Opp'n Mot. Compel '][ 1 (Oct. 12, 2018). Mr. Chiu further states that he 25 | supervises a staff of six and that he personally compiles and files annual tax returns and corporate 26 1 reports for the fifty-seven companies in Hong Kong, China and Guam. at '][ 3. Additionally, he 27 E handles all the companies' income and loss statements, balance sheets, cash f`low and financial
CVl049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 2 of 9 DECISION AND ORDER (re Defs' Mot. to Compel Pls' Attendance at Defs' Dap. in Guam)
statements, and responds to numerous inquiries about the financial status and operations of the fifty seven companies daily. at ']['][ 3-4. He claims that if any emergencies arise while he is away, no one else could take over in his absence. at <II4.
Mr. Chiu also states that he cares for his 87 year old parents, and it would be an extreme 5 l hardship for him to leave them. at 'll 5. Mr. Chiu states that his native language is Cantonese and 6 he would thus prefer to be deposed with a Cantonese interpreter present. at q[<][ 6-7.
The Defendants replied to the opposition on October 30, 2017. The Court held a hearing on 8 the Motion and took the matter under advisement on November 22, 2017.
DISCUSSION
The Defendants posit that because the Plaintiffs initiated this action on Guam, there is a 11 . presumption that Mr. Chiu, the Plaintiffs' designated representative, should submit to deposition in 12 Guam. See Def' s Reply to Dens' Opp'n 2 (Oct. 30, 2017). In Opposition, the Plaintiffs argue there 13 Q is a general rule that "the deposition of a corporate officer or employee should usually be taken at 14 i the corporation's principal place of business," and thus Mr. Chiu should be deposed in Hong Kong, 15 | Plaintiffs' principal place of business. Pls' Opp'n to Def' s Mot. 2-3 (Oct. 9, 2017).
Under Rule 30(b)(6) of the Guam Rules of Civil Procedure ("GRCP"),
"A party may in the party's notice and in a subpoena name as the deponent a ...
private corporation ... and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify... The persons so designated shall testify as to matters known or reasonably available to the organization . . . ."
i 22 Guam R. Civ. P. 30(b)(6) (2014).
The GRCP also allow for deposition by alternative means in Rule 30(b)(7), which provides 24 "[t]he parties may stipulate in writing or the court may upon motion order that a deposition be taken 25 I by telephone or other remote electronic means." Guam R. Civ. P. 30(b)(7). The language of Guam 26 GRCP 30 is substantially similar to the language in Rule 30 of the Federal Rules of Civil Procedure 27 ("FRCP"), thus federal authorities are persuasive in interpreting Rule 30 of the GRCP. See Guam
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 3 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Defs' Dap. in Guam)
1 R. Civ. P. 30 (2014), Q; Fed. R. Civ. P. 30 (2016), see also Sumitomo Constr. Co. v. Zhang Ye, 2 , Inc., 1997 Guam 8 '][. 17 (reasoning "[g]enerally when a legislature adopts a statute which is 3 Eidentical or similar to one in effect in another jurisdiction, it is presumed that the adopting 4 jurisdiction applies the construction placed on the statute by the originating jurisdiction.").
Like the GRCP, the FRCP "do not specify the situs of a patty deposition noticed pursuant to 6 | Rules 30(a)(1) or 30(b)(6)." In re Outsidewall Tire Litigation, 267 F.R.D. 466, 470-71 (E.D.Vir. 7 2010). Federal trial courts have interpreted the rules to mean "the deposition of a party may be 8 i noticed wherever the deposing party designates, subject to the court's power to grant a protective 9 Eorder." Fausto v. Credigy Services Corp., 251 F.R.D. 427, 429 (N.D. Cal. 2008). However, as noted 10 by the Defendant in the Motion and Reply, some federal trial courts "presume that a plaintiff may 11 ¥ be deposed in the judicial district where the action was brought, inasmuch as the plaintiff, in 12 ; selecting the forum, has effectively consented to participation in legal proceedings there." Fenerjian 13 v. None Shim Company, Ltd, No. 13-CV-04115-WHO (DMR), 2016 WL 1019669, at *2 (N.D. 14 E Cal. Mar. 15, 2016) (citations and quotations omitted).l Courts also extend this rule to 15 representatives of plaintiff corporations. See Fenerjian, 2016 WL 1019669, at *l-2 (addressing 16 deposition noticed under Rule 30(b)(6)).
The Plaintiff argues that "[a]n exception to this general rule is made for corporate designees, 18 who are normally deposed at the corporation's principal place of business." Fausto v. Credibly
19 Services Corp., 251 F.R.D. 427, 429 (N.D. Cal. 2008) (citing Dwelly v. Yamaha Motor Corp., 214 I
20 F.R.D. 537, 541 (D. Minn. 2003)). However, the Court can distinguish the authorities cited by the 21 2 Plaintiff as inapplicable here as those authorities dealt with the depositions of a foreign corporate 22 i defendant Not one case cited by Plaintiff for the presumption that the deposition of a corporate
see also Peterson v. Alaska Communications Svstems Group, Inc., No. 3: 12-cv-00090-TMB, 2017 WL 2312952, at *4 (D. Ala. Mar. 6, 2017) (reasoning "[a] plaintiff must typically make himself available for a deposition in the district in which the action is pending"), P.Y. M.T. v. Citv of Fresno, No. 1:15-cv-710-JAM-BAM, 2016 WL 2930539, at * (E.D. Cal. May 19, 2016) (reasoning "there are general presumptions that a Plaintiffs deposition should proceed in the forum district because, unlike a Defendant, the Plaintiff is here by choice. Generally, plaintiffs are required to make themselves available for examination in the district in which suit was brought, because the plaintiffs selected the forum"); In re Outsidewall Tire Litigation, 267 F.R.D. 466, 471-72 (E.D.Vir. 2010).
|I See United States v. One Gulfstream G-V Jet Aircraft Displaving Tail Number VPCES, 304 F.R.D. 10 (D.D.C.
28 2014) (addressing U.S. Government noticed deposition of alleged owner of property subject to in rem action brought
I . . . .
I CV1049-16 Oxford Propemes and Finance Ltd., et al. v. Chrlstlne Lee et al. Page 4 of 9 DECISION AND ORDER (re Defs' Mot. to Compel Pls' Attendance at Defs' Dap. in Guam)
1 agent will occur at the corporation's principal place of business extends such presumption to a 2 deposition of a named plaintiff, noticed by the defendant. 3 Thus the Court declines to extend the presumption advanced by the Plaintiff without more 4 compelling authority. Instead the Court will defer to those authorities cited by the Defendant which 5 presume a plaintiff shall be deposed in the forum where a matter is pending. Therefore, the Court is 6 guided by the "general rule that a plaintiff will be required to make himself or herself available for 7 examination in the district in which suit was brought." Fenerjian, 2016 WL 1019669, at * 2. This 8 presumption is not irrefutable, "[t]o overcome this presumption ... the plaintiff has the burden of 9 proving that undue hardship or exceptional or compelling circumstances justify his refusal to travel 10 to his chosen forum." Ki (citing Mullins v. Premier Nutrition Corp., No. C-13-01271-RS(DMR), 11 2014 WL 4058484, at *1 (N.D. Cal. Aug. 15, 20l4)) (citations and quotations omitted). 12 The plaintiff bears the burden of showing undue hardship or exceptional or compelling 13 circumstances to justify refusal to submit to deposition in the forum where litigation is pending. See 14 Mullins, 2016 WL 4058484 at *2. In Mullins, the plaintiff argued that he could not travel to the 15 forum where litigation was pending for his deposition because of a family related issue, and the 16 need to be in other locations at unpredictable times. In finding that the plaintiff had not 17 demonstrated the exceptional or compelling circumstances necessary to move or delay the 18 deposition, the court reasoned the plaintiff's declarations were "devoid of detail .. [and did] not 19 persuade the court that plaintiff's personal circumstances hamper him in any significant way from 20 traveling for two days to appear for his deposition in the forum in which he chose to tile ...." Ii 21 Similarly in Fenerjian, the Court found several plaintiffs' representatives' proffered reasons 22 of childcare responsibilities, work, medical treatment, and financial burden of missing work, were 23
24 by U.S. Government); see also Rundquist v. Vapiano SE, 277 F.R.D. 205 (D.D.C. 2011) (addressing plaintiff's motion to compel appearance of officers, directors, or managing agents of defendant corporation for depositions), in 25 re Outsidewall Tire Litigation, 267 F.R.D. 466, 470 (E.D.Vir. 2010) (addressing the situs of a defendant corporation's corporate representative and managing agent's deposition noticed by plaintiff), McDougal-Wilson v. Goodyear Tire 26 and Rubber co., 232 F.R.D. 246 (E.D.N.C. 2005) (addressing defendant-employer's motion to quash and for a protective order concerning plaintiff" s proposed Rule 30(b)(6) deposition of defendant employer);Dwells v. Yamaha 27 Motor Corp., 214 F.R.D. 537 (D. Minn. 2003) (addressing plaintiff's motion to compel production of defendant's corporate witness);Slater v. Upjohn Co.,593 F.2d 649 (5th Cir. 1979) (addressing issue related to plaintiff's notice of 28 deposition and whether trialcourt action of vacating notice and prohibiting or postponing the deposition was proper).
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 5 of 9 DECISION AND ORDER (re Defs' Mot. to Compel Pls' Attendance at Defs' Dap. in Guam)
1 insufficient to show undue burden or exceptional or compelling circumstances. See Fenerjian, 2016 2 WL 1019669, at *3. The court found the explanation of work or childcare only showed usual 3 difficulty or inconvenience and did not rise to an undue burden or exceptional or compelling 4 circumstances because Plaintiffs brought the action and chose the forum. L 5 Further, the Court found that the provided declarations did not provide any detail about the 6 medical issues or course of treatment that was adversely affected by the burden of appearing for 7 depositions. The court also reasoned that while one of the plaintiff"s daughters may have had a 8 medical condition, there was no information about the specific condition the daughter faced, its 9 severity, or any necessary special medical treatment - or its frequency or predictability. Ld Thus the 10 Court found the plaintiffs had not met their burden, stating specifically that the "meager record 11 submitted by the [plaintiffs] does not persuade the court that their personal circumstances hamper 12 them in any significant way from traveling to appear for depositions in the forum in which they 13 chose to file." Id. at *4. 14 Here, as in Mullins and Fenerjian, the Court finds Plaintiffs have not provided sufficient 15 evidence to demonstrate undue burden or exceptional or compelling circumstances for this court to 16 stray from the rule that the plaintiff should submit to a deposition in the forum where litigation is 17 pending. Mr. Chiu cites to his various work responsibilities, but there is no specific adverse effect 18 that he points too beyond general assertions of the work he does. While the Court will not dispute 19 the importance of Mr. Chiu's work, the Court finds it difficult to believe that fifty-seven companies 20 would cease to operate if their financial officer was subject to deposition in Guam with only a two 21 hour difference from Hong Kong, and the state of modem communication technology. Notably, Mr. 22 Chiu does not dispute that he should be deposed, only that he cannot travel to Guam for such 23 deposition. The Court is unconvinced that travelling to Guam from Hong Kong for the time it takes 24 to be deposed presents an undue burden or exceptional or compelling circumstances. The Court is 25 similarly unconvinced that Mr. Chiu's being physically out of the office for a few days at most is 26 sufficient to rebut the presumption that the Plaintiff should make representatives available for 27 28
CVl049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 6 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Defs' Dep. in Guam)
1 deposition in the forum they file. Mr. Chiu signed the verified complaint in this matter and thus 2 should have anticipated being subject to proceedings in Guam related to the matter. 3 Similarly, without more information, the Court finds Mr. Chiu's argument that he takes care 4 of his 87 year old parents is similarly unsubstantiated. The court has no information about any 5 specific conditions of Mr. Chiu's parents beyond their age. In order to meet the standard, the Court 6 would need information on their condition, the type of care Mr. Chiu provides, and why no one else 7 can fill his role for the time he is away for his deposition. Importantly Mr. Chiu admits he traveled 8 to Guam at least twice in the last five years. His parents were already in their eighties and he 9 obviously had some arrangement that allowed for him to travel at that time. Again, while the 10 deposition poses an inconvenience, it is not an undue burden. 11 Thus, having found the Plaintiffs have not demonstrated that Mr. Chiu's travel to Guam will 12 present an undue burden, nor have Plaintiffs shown exceptional or compelling circumstances, the 13 Court hereby GRANTS the Defendants' Motion to Compel Mr. Chiu's deposition in Guam. 14 Deposition by Videoconference 15 In Fenerjian, the court addressed an argument similar to the argument advanced by Plaintiffs 16 here, that Mr. Chiu's deposition should be taken by video conference. LI The court ruled that 17 because the plaintiffs were named plaintiffs in the action, the Defendants "are allowed to evaluate 18 their credibility ... through in-person depositions." Fenerjian, 2016 WL 1019669, at *4. The Court 19 agrees that a deposition by videoconference would address several logistical issues, such as the lack 20 of a certified Cantonese interpreter in Guam. However, the Court agrees with both Defendant and 21 the Fenerjian court that since Mr. Chiu signed the verified complaint and was designated by 22 Plaintiffs under 30(b)(6), and because Defendants have demanded an in-person deposition by oral 23 examination, Defendants are entitled to compel Mr. Chiu's presence to weigh his credibility. 24 While this court does have discretion to order a video conference, on the facts presented, the 25 Court will not make such an Order unless both parties agree. Otherwise, the Court follows the 26 general rules discussed above, that the noticing party selects the deposition location, and the 27 28
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 7 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Dens' Dep. in Guam)
1 plaintiff is generally expected to be deposed in the district where the litigation is pending. The I
2 !
Court therefore DENIES the Plaintiffs' request that Mr. Chiu be deposed by videoconference.
The Court will note that Defendant is on notice that the Court has discretion to order an
4 ! interpreter be present at a deposition. See Bethlehem Area Sch. Dist. v. Zhou, No. CW.A. 09-3493, 5 2011 WL 1584083, at *2 (E.D. Pa. Apr. 27, 2011). Other courts have ordered officers, such as
6 interpreters and court reporters, should be present in the same location as the deponent to avoid 7 logistical problems. See Gould v. Motel 6 Inc., No. CV09-8157 CAS (FMOx), 2011 WL 13128160, at *7 (C.D. Cal. March 28, 2011). Thus, the Court ORDERS Defendant to provide an English-
9 i Cantonese interpreter in Guam at Defendant's expense, since Defendant declined the 10 videoconference option. The Plaintiffs may of course provide a check interpreter at Plaintiffs' 11 expense. However the interpreter ordered to be present by the Court shall be provided by 12 Defendant, as a cost of the deposition. See In the Matter of Majestic Blue Fishers, LLC, No. 11- 13 00032, 2013 WL 12233715 at *1 (D. Guam Jun. 21, 2013) (reasoning "[w]ith respect to deposition 14 a interpreter fees, the party seeldng discovery must bear the cost of having [his] questions translated 15 into the native language of the deponents and having the deponents' answers translated into 16 English") (citing E. Boston Ecumenical Communitv Council, Inc. v. Mastrorillo, 124 F.R.D. 14, 15 17 1(D. Mass. Feb. 22, 1989) (internal quotations onlitted)). 18 Attornev's Fees Finally, Defendants argue that if they prevail on the Motion, they are entitled to Attorney's 20 fees under Rule 37(a)(4) of the GRCP. Dens' Mot. Compel Pls' Attendance at Dep. in Guam 5 (Sep. 21 ll, 2017). Plaintiffs cite to Rule 37(a)(4) which provides that "a party who obtains an order 22 granting a discovery motion shall recover attorney's fees unless the court finds that the opposition
23 to the motion was substantially justified or that other circumstances make an award of expenses l . ,, . 24 unjust. Guanl R. Civ. P. 37(a)(4). One court in Guam has found that the 'substantially justified'
I . . . . ; . . .
25 standard is satisfied If "there is a genuine dispute or if reasonable people could differ as to the
26 appropriateness of the contested action. Substantial justification means justified in substance or in 27 I the main, i.e., justified to a degree that could satisfy a reasonable person." Guam Indus. Servs., Inc
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 8 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Defs' Dep. in Guam)
1 v. Zurich Am. Ins. Co., No. CV 11-00014, 2013 WL 4525228, at *2 (D. Guam Aug. 26, 2013) 2 (citing Pierce v. Underwood, 487 U.S. 552, 563-66 (1988)) (internal quotations omitted). 3 The Court finds that because the authorities presented to the Court were mostly trial court 4 opinions interpreting Rule 30 of the FRCP, reasonable minds could differ as to the interpretation of 5 Rule 30 of the GRCP as it relates to the instant matter. Therefore the Court finds that Plaintiffs' 6 arguments discussed herein, under these circumstances, were substantially justified. The Court 7 therefore DENIES Defendants' request for attorney's fees. 8 CONCLUSION 9 By preponderance of the evidence and based on the foregoing reasons, the Court GRANTS 10 Defendants' Motion to Compel Plaintiffs' Attendance at Deposition in Guam. 11 1. The Parties are ORDERED to meet and confer to decide the details, including the date and 12 location (in Guam), of Mr. Chiu's deposition. The Plaintiffs are ORDERED to present Mr. 13 Chiu at the appropriate time, in Guam, to be deposed. 14 2. The Court ORDERS Defendants to provide an English-Cantonese interpreter in Guam at 15 Defendants' expense for the deposition. 16 3. The Court DENIES Plaintiffs' request to order Defendants to depose Mr. Chiu by 17 videoconference. . 18 4. The Court DENIES Defendants' request for attorney's fees. 19
20 A Status Hearing is set for Mn 2 9 ma at lOa-vV\ .-
21 U 5; #Imp
22 SO ORDERED FEB 23
24 SERVICE VIA COURT BOX I acknowledge that a copy of the /,1
The Honorable Anita A. Sukola 25 original hereto was placed in the court box of; Judge, Superior Court of Guam 26 Arrow, Cowan 1 Qfrfféz, J- /Hahn"
27 Date: 8-/X TT. et 1/:/y Hz
28 !~ Deputy Clerk,Su riot Court of Guam
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 9 of 9 DECISION AND ORDER (re Defs' Mot. to Compel Pis' Attendance at Defs' Dep. in Guam)