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DAN EUSER WATERARCHITECTURE, INC., Petitioner, v. CITY OF MIAMI BEACH, Florida, et al., Respondents.

No. 3D13–180.

Decided: May 01, 2013

Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge. Cole, Scott & Kissane and Scott A. Cole and Kristen A. Tajak, for petitioner. Lydecker Diaz and Joan Carlos Wizel, Mark A. Hendricks and Meredyth S. Cooper, for respondent City of Miami Beach, Florida.

Dan Euser Waterarchitecture, Inc. (“DEW”) petitions for certiorari review of a non-final order entered by the trial court, which denied its motion for protective order. The trial court ruled that DEW's corporate representative must appear for deposition in Miami–Dade County instead of at the location of DEW's headquarters in Ontario, Canada. We grant the petition and quash the order.

“A defendant ․ will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief. Thus, under Florida law a nonresident corporate defendant need not produce a nonresident corporate officer in Florida.” Fortune Ins. Co. v. Santelli, 621 So.2d 546, 547 (Fla. 3d DCA 1993) (citation omitted). Rather, where the corporate defendant is not seeking affirmative relief, the deposition of the corporate representative should ordinarily be taken at the corporation's principal place of business. Id.

DEW is a Canadian corporation, having its principal place of business in Richmond Hill, Ontario, Canada. Its corporate representative is a resident of Ontario, Canada, and all of DEW's documents and files relating to this litigation are located in Ontario, Canada. Moreover, DEW is not seeking any affirmative relief. Accordingly, DEW should not be required to produce its corporate representative in Miami–Dade County. “It has been said that there is an exception for ‘extraordinary circumstances,’ but no such circumstances have been shown to exist here.” Teledyne Indus., Inc. v. Mustang Ranch Aircraft, Inc., 753 So.2d 785, 785 (Fla. 3d DCA 2000) (citation omitted).

Because we conclude the trial court departed from the essential requirements of the law in denying DEW's motion for a protective order, we grant the petition and quash the order under review. We remand with directions to grant the protective order.

Petition granted with directions.

I write only to note that the principal argument made by the respondent, City of Miami Beach, is an economic one, that it is less expensive for the witness to come to Florida (the City proposes expense sharing by the parties) than for counsel for fifteen defendants to travel to Canada.1 This may be so, but DEW did not choose to be a defendant in this case. The City of Miami Beach chose DEW. The City points to what it considers persuasive federal authority to support its position. However, those cases involve more exotic destinations. See Barrocos of Fla., Inc. v. Elmassian, No. 11–CV–22393–SCOLA, 2012 WL 1657204 (S.D.Fla. May 10, 2012) (company with principal place of business in Hong Kong); Partecipazioni Burgari, S.p.A. v. Meige, No. 86–2516–CIV–RYSKAMP, 1988 WL 113346 (S.D.Fla. May 23, 1988) (resident of Greece); Financial Gen'l. Bank Shares v. Lance, 80 F.R.D. 22 (D.C.1978) (four Arab defendants); cf. Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166 (S.D.N.Y.1985) (giving out-of-town defendant option under local rule to pay for counsel to travel to California for deposition or producing witness in New York); Largo Hosp. Owners, Ltd. v. Gorman, 408 So.2d 597 (Fla. 2d DCA 1981) (requiring California resident to travel to Pinellas County for deposition in aid of execution where defendant contracted to build hospital in Tampa). The City cannot seriously contend travel to Canada by its counsel is unexpected or imposes a severe burden on it in this case.


1.  The fifteen defendants are Hargreaves Associates, Incorporated, William Lane Architects, Inc., William Lane, Savino & Miller Design Studio, P.A., Dan Euser Waterarchitecture, Inc., Kenneth Didonato, Inc., Kenneth Didonato, Lam Partners, Inc., William A. Abarca, P.A., Play.Site.Architecture, Inc., Joanne Hiromura, Johnson, Avedano, Lopez, Rodriguez & Walewski Engineering Group, Inc., Horacio A. Rodriguez, P.E., Magnum Construction Management Corporation d/b/a MCM Corp. and/or MCM, and Travelers Casualty and Surety Company of America. The complaint alleges design and construction errors in a $22 million park renovation project at South Pointe Park, located in Miami Beach, Florida.


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Docket No: No. 3D13–180.

Decided: May 01, 2013

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