Free Motion for Protective Order - District Court of Connecticut - Connecticut

Case 3:03-cv-00383-WIG

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Filed 11/29/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ______________________________ WASLEY PRODUCTS, INC., ET AL. : : Plaintiffs, : MASTER CONSOLIDATED CASE : CIVIL NO.: 3:03-cv-383(MRK) : V. : BARRY LEONARD BULAKITES, : ET AL. : : Defendants. : ______________________________: NOVEMBER 29, 2005 MOTION FOR PROTECTIVE ORDER Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the defendant, Barry L. Bulakites ( Bulakites ) hereby moves this court for a protective order to prevent the plaintiffs from proceeding with his deposition in Connecticut on December 14, 2005 since he does not reside within the state of Connecticut. I. BACKGROUND This litigation involves two consolidated actions. The

instant Motion for Protective Order relates to a deposition notice served upon Bulakites by the plaintiffs in the lawsuit

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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styled Wasley Products, Inc., et al. v. Barry Bulakites, et al. and referred to as Wasley I .

The plaintiffs in Wasley I consist of Alan Wasley, Andrew Brady, Barry Connell and Sandra Dumas-Lafierre, who are trustees of the plaintiff, Wasley Products, Inc. s Pension Plans.1 plaintiff, Wasley Products, Inc. ( Wasley Products ) is a manufacturing firm located in Plainville, Connecticut that manufactures custom foam and rubber products for automotive and aerospace industries. The plaintiff, Precision Molding, Inc. Wasley The

(hereinafter all plaintiffs will be referred to as

Products Plaintiffs ) is a subsidiary of Wasley Products which manufactures customized precision molding and metal products. Defendant Bulakites acted as a third party pension administrator for Wasley Products from 1993 through 2002. In Wasley I, the plaintiffs claim that Bulakites and other defendants breached their fiduciary duty in violation of the

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Alan Wasley is Chairman and Chief Executive Officer of Wasley Products. Andrew Brady is the Comptroller for Wasley Products. Barry Connell is a former President of Wasley Products. Sandra Dumas-Lafierre is the Human Resources Director at Wasley Products.

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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Employee Retirement Income and Securities Act with respect to three separate pension plans held by Wasley Products. Specifically, the plaintiffs claim that the Bulakites and other defendants failed to turn over all plan related documents; failed to comply with governmental reporting requirements; failed to make timely payments of plan premiums to the Pension Benefit Guaranty Corporation; misrepresented the value of the plans assets; failed to appropriately allocate plan

contributions; failed to deposit plan assets; and diverted plan contributions and converted them to their own use. denies these allegations in their entirety. II. LAW AND ARGUMENT As a general rule, the party noticing the deposition See 7 Moore's Bulakites

usually has the right to choose the location.

Federal Practice, § 30.20 [1] [b] [ii]; Fed.R.Civ.P. 30(b)(1). The deposition of a non-resident defendant, however, is generally conducted at the defendant s place of residence. See Bank of New York v. Meridien BIAQ Bank Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N.Y. 1997). Underlying this rule appears to be

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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the concept that it is the plaintiffs who bring the lawsuit and who exercise the first choice as to the forum. The defendants, on the other hand, are not before the court by choice. Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987). If a plaintiff notices a defendant s deposition with a location other than defendant s residence or place of business and defendant objects, the plaintiff has the affirmative burden of demonstrating peculiar circumstances which compel the court

to order the deposition to be held in an alternate location. See Six West Retail Acquisition, Inc., 203 F.R.D. 98, 107 (S.D.N.Y. 2001). The rationale for the presumption of deference

to the defendant is that the plaintiff is free to choose the forum within which to litigate. Since defendants are not

before the court by choice, it is the plaintiff who should bear any reasonable burdens of inconvenience that the action presents. Federal Deposit Ins. Co. v. La Antillana, S.A., 1990

WL 155727, at *1 (S.D.N.Y. Oct. 5. 1990)(attached hereto as Exhibit 1). Factors to be considered when weighing the burdens

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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imposed upon the parties include the cost of the deposition and the convenience of the parties and their counsel. In this case, there can be no dispute that Bulakites resides in Castle Rock, Colorado. For this reason alone, cost

considerations militate in favor of designating his place of residence as the situs of his deposition. Moreover, because

Bulakites is an individual defendant, he does not have the luxury of unlimited resources and thus, it would be financially prohibitive for him to bear the expense of travel and lodging associated with his deposition being conducted in Connecticut. In addition, Bulakites is employed as the Chief Sales and Marketing Officer for Table Bay Financial Network, Inc., a company located in Castle Rock, Colorado. Bulakites As a result of

senior position in the company, his absence from the

office for a deposition in Connecticut will result in significant financial losses for his employer, who is not even a party to this lawsuit. Conversely, because the plaintiffs instituted the present lawsuit, they had the luxury of selecting the forum and should,

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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therefore, bear any reasonable burdens of inconvenience that the action presents. Moreover, the plaintiffs represent the

interests of a corporation, who is in a much better position to absorb the cost of travel associated with attending a deposition. Similarly, factors of convenience weigh in favor of Bulakites deposition being conducted in Colorado. As stated

above, Bulakites resides in Colorado and also occupies a senior management position in company which is also located in Colorado. His absence from the workplace for a number of days

would have an adverse impact on both him and his employer, who is not even a party to this action. In contrast, there are four

individual plaintiffs who collectively operate Wasley Products. Thus, it is much easier for one of them to travel out of state, without the risk of it negatively affecting their business.

III. CONCLUSION For the foregoing reasons, the defendant, Barry Bulakites, respectfully requests that the court enter a protective order

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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prohibiting the plaintiffs from proceeding with his deposition in Connecticut or at any venue other than within his state of residence.

Respectfully submitted, THE BULAKITES DEFENDANTS Barry L. Bulakites, James A. Winslow, and Joshua Adams Corporation

BY: ____________________________ STEVEN J. ERRANTE, ESQ. ERIC P. SMITH, ESQ. MARISA A. BELLAIR, ESQ. Fed. Bar No. ct04292 Lynch, Traub, Keefe, & Errante 52 Trumbull Street New Haven, CT 06510 Telephone: 203-787-0275 Facsimile: 203-782-0278

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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CERTIFICATION OF SERVICE This is to certify that a copy of the foregoing was electronically e-filed on November 29, 2005 to all counsel and pro se parties of record as follows: Joseph V. Meaney, Jr., Esq. Cranmore, Fitzgerald & Meaney 49 Wethersfield Avenue Hartford, CT 06114-1102 (Attorney for Plaintiffs, Wasley Products, Inc. and Precision Molding Co, Inc.) Ian O. Smith, Esq. Thomas Moukawsher, Esq. Moukawsher & Walsh 21 Oak Street, Suite 209 Hartford, CT 06106 (Attorneys for Consol Plaintiffs, Gregory T. Prentiss, John Rizzi, Richard Seich, Dorothy Brown) Bryan D. Short, Esq. Deborah S. Freeman, Esq. Sara R. Simeonidis, Esq. Bingham McCutchen One State Street Hartford, CT 06103-3178 (Attorneys for Defendant, Nationwide Life Insurance Company of America)

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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Thomas G. Rohback, Esq. James J. Reardon, Esq. Doug Dubitsky, Esq. LeBeouf, Lamb, Greene & MacRae 225 Asylum Street Hartford, CT 06103 (Attorneys for Defendant, Lincoln National Insurance Company) Theodore J. Tucci, Esq. Jean Elizabeth Tomasco, Esq. Robinson & Cole 280 Trumbull Street Hartford, CT 06103-3597 (Attorneys for Consol Defendants, Wasley Products, Inc., Alan Wasley, Andrew Brady, Sandi Dumas-LaFerriere and Barry Connell)

_________________________ Steven J. Errante

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LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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