96 F.R.D. 161 | N.D. Ill. | 1982
MEMORANDUM OPINION AND ORDER
On November 4,1982, Magistrate Carl B. Sussman entered an order granting plaintiff-counterdefendant Sol Zuckert’s (“Zuckert”) motion to compel defendants-counterplaintiffs’ agents, Herbert Berkley, Allen Berkley and Kemal Sidak, to travel to Chicago for depositions. This order is now before the Court on defendant-counter-plaintiffs’ objections. After careful consid
In his amended complaint, Zuckert alleges that defendants breached an oral agreement to pay commissions and incentive bonuses.
The Magistrates Act, 28 U.S.C. §§ 631— 639, sets forth the standard of review which courts are to observe when considering motions to reconsider magistrate’s orders. Section 636(b)(1)(A) declares that
a judge may designate a magistrate to hear and determine any pretrial matter pending before the court.... A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.
Thus, to reconsider and vacate Magistrate Sussman’s order, we must find that his November 4 order was “clearly erroneous or contrary to law.”
As a general rule, the deposition of a corporation by its agents and officers should be taken at its principal place of business. Dunn v. Standard Fire Insurance Co., 92 F.R.D. 31, 32 (E.D.Tenn.1981). This is particularly so when the corporation is a defendant. Salter v. Upjohn Co., 593 F.2d 649 (5th Cir.1979). If a corporation objects to depositions at a location other than its principal place of business, the objection should be sustained unless there are unusual circumstances which justify such an inconvenience to the corporation. Grey v. Continental Marketing Associates, 315 F.Supp. 826, 832 (N.D.Ga.1970). One reason for this principle may be a desire to avoid forcing defendant corporations to transport business records. Clark v. General Motors Corp., 20 Fed.R.Serv. 679, 688 (Callaghan) (D.Mass.1975).
Two defendants in the instant case, however, have filed a counterclaim; they are thus counterplaintiffs. Therefore, this raises a question concerning whether defendants-counterplaintiffs are entitled to be deposed at their place of business pursuant to the general principle discussed above. If a counterclaim is compulsory, a defendant remains entitled to protection from deposition anywhere but his or her residence or business location; on the other hand, if a counterclaim is permissive, a defendantcounterplaintiff may be deposed at the place of trial. Wisconsin Real Estate Investment Trust v. Weinstein, 530 F.Supp. 1249, 1253 (E.D.Wis.1982); Pinkham v. Paul, 91 F.R.D. 613, 615 (D.Me.1981). Filing a permissive counterclaim thus results in a defendant-counterplaintiff being treated as a party plaintiff for purposes of any depositions. Continental Federal Savings & Loan Association v. Delta Corp., 71 F.R.D. 697, 700 (W.D.Okl.1976). We must therefore decide whether the counterclaim in this case is compulsory or permissive.
Rule 13(a) of the Federal Rules of Civil Procedure provides:
Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction....
In construing the requirement that a compulsory counterclaim arose out of the same transaction or occurrence as the claim of an opposing party, the Court of Appeals for the Seventh Circuit has declared that
Therefore, the November 4,1982, order of Magistrate Sussman, granting Zuckert’s motion to compel defendants’ agents to travel to Chicago for depositions is vacated and the depositions in question are to be taken at the location of defendants-counter-plaintiffs’ business. It is so ordered.
. On March 17, 1982, this Court dismissed Zuckert’s original complaint, which sought an accounting, pursuant to defendants’ motion for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).