WATSON v. LEMONGRASS RPP LLC (2023)

ORDER ON PLAINTIFF'S AMENDED MOTION FOR PROTECTIVE ORDER

This Matter is before the Court on Plaintiff's Amended Motion for Protective Order (“Motion”). [ECF No. 56]. Plaintiff, who uses Apple Screen Reader VoiceOver software designed for the visually impaired, has filed a complaint alleging violations of Title III of the Americans with Disabilities Act (“ADA”) regarding access to the mobile website of the Defendant restaurant located in Palm Beach County. On December 13, 2023, Defendant, Lemongrass RPP LLC noticed the in-person deposition of Plaintiff, James Watson, for December 21, 2023, at 11:00 a.m., at defense counsel's office in Broward County located at 8751 West Broward Blvd, Suite 105, Plantation, Florida 33324. That same day, Plaintiff informed Defendant he was unavailable on December 21, 2023, but was available on January 3, 2024. Plaintiff asked, however, that the deposition be conducted via Zoom or in Miami Dade County where he resides. Defendant served an Amended Notice of Taking Deposition, resetting the deposition for January 3, 2024, at the same Broward County location.

Plaintiff requests the Court enter a protective order requiring Defendant to take Plaintiff's deposition at a location in Miami Dade County or via Zoom. [ECF No. 56]. Plaintiff argues that traveling to defense counsel's office would place an undue hardship and unnecessary expense upon Plaintiff, as he does not drive, and he would need to hire a ride service to travel one hour each way. [Id. ¶ 7]. Defendant filed a response in opposition, arguing that Plaintiff has failed to show good cause for entry of a protective order. [ECF No. 58]. Defendant argues it is entitled to take the deposition in person and traveling for an additional 20 minutes by car does not warrant entry of a protective order. Further, defense counsel's office is equidistant from the Parties, as Plaintiff resides in Miami Dade County and Defendant Lemongrass RPP and its principals are located in Palm Beach County, Florida. [Id.].

“The general rule is that a plaintiff who brings suit in a particular forum may not avoid appearing for examination in that forum.” Morgan v. Ferguson, No. 22-CV-10035, 2022 WL 17736227, *2 (S.D. Fla. Dec. 16, 2022) (quoting Levick v. Steiner Transocean Ltd., 228 F.R.D. 671, 672 (S.D. Fla. 2005)). “In accordance with this general rule, ‘a plaintiff must make herself available for deposition in the judicial district in which she filed suit.’ ” Id. (quoting Sarac v. Univ. of S. Fla. Bd. of Trs., No. 18-cv-02485, 2020 WL 97782, at *2 (M.D. Fla. Jan. 8, 2020)).

Nevertheless, it is well settled that the district court has great discretion in designating the location of taking a deposition or examination. Rule 26 authorizes the Court to order that a plaintiff's deposition or examination be taken in a different location, or by alternative means, if he demonstrates the requisite good cause.

Id. (cleaned up) (citations omitted).

Here, Defendant timely noticed the deposition for a location within the Southern District of Florida, the judicial district in which Plaintiff filed suit. Thus, the general rule is that Plaintiff must make himself available for the deposition. But even considering Plaintiff's arguments, the Court does not find good cause for entry of an order that Plaintiff's deposition be taken in a different location or by alternative means. Plaintiff has not set forth any “particular and specific demonstration of fact” and simply states that traveling this distance is costly and inconvenient. See In re: Chiquita Brands Int'l, Inc., 965 F.3d 1238, 1251 (11th Cir. 2020) (“To establish ‘good cause’ for a protective order under Federal Rule of Civil Procedure 26(c), the courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”).

Plaintiff has not shown “a substantial hardship beyond the ordinary inconvenience that any deposition necessarily entails.” Huddleston v. Bowling Green Inn of Pensacola, 333 F.R.D. 581, 586 (N.D. Fla. 2019). Without more, the Court cannot ascertain how traveling one hour each way causes Plaintiff an extraordinary inconvenience. Further, when balancing the parties’ interests, it is not unreasonable that the deposition be taken in Broward County, a location midway between the parties. For these reasons, Plaintiff's Amended Motion for Protective Order is DENIED.

DONE and ORDERED this 29th day of December, 2023.

LISETTE M. REID, UNITED STATES MAGISTRATE JUDGE