To delay further the depositions of Swift Air officers would compound the hardship that Saipan Air has already suffered, according to U.S. District Court for the NMI Chief Judge Ramona V. Manglona.
“The balance of hardships are in Saipan Air’s favor,” said Manglona in a written order on Friday that denied the request of Jeffrey Conry, Boris Van Lier, and Donald A. Stukes to postpone the deposition and request for a protective order.
At a hearing on Friday, Manglona ordered Conry, Van Lier, and Stukes to appear at a scheduled settlement conference on Saipan for yesterday, Monday, before District Court Senior Judge Alex R. Munson.
She also ordered Conry and Van Lier to appear at their scheduled depositions today, Tuesday, and Wednesday, also on Saipan.
The defendants, through counsel Michael White, asserted that they are merely asking for postponement of the depositions until their motion for permanent injunction is resolved.
In her written order, Manglona said that Conry, Van Lier, and Stukes cannot complain of the physical hardship or expense in time and money of traveling to Saipan from their homes in North Carolina.
Manglona said this arrangement for depositions to take place on Saipan was an accommodation that the court made for the defendants on Oct. 8 when it gave them a last-minute protective order from having depositions taken in North Carolina while Swift Air’s bankruptcy case was at a crucial stage in Arizona.
U.S. District Court for the NMI Magistrate Judge Heather L. Kennedy earlier granted the request of Conry and Van Lier to postpone their depositions last Oct. 9 in North Carolina in connection with Saipan Air Inc.’s $50-million racketeering lawsuit against them.
Kennedy ordered the depositions of Conry and Van Lier be held on Saipan on Nov. 5 and 6, 2013.
Deposition refers to the taking of testimony of a witness outside of court.
Manglona said the postponement created hardship for Saipan Air, whose attorney, Steven Pixley, had already made the trip to North Carolina when the defendants asked for the postponement.
Second, the judge noted, the fact that a defendant believes he has a winning argument is no reason to delay the discovery process.
In their papers, Manglona pointed out, the defendants have not cited any case where a court granted a protective order solely because a dispositive motion was pending.
Occasionally, she said, courts have postponed discovery pending the outcome of a motion to dismiss for lack of subject matter jurisdiction—a motion that goes to the heart of a court’s authority to hear a case.
Yet even in that posture, Manglona said, the burden on the defendants to show hardship and oppression is heavy.
Given the logistical difficulties of rescheduling depositions when the parties are separated by half the globe, a second delay would be even more injurious to the progress of the case, Manglona said
“The only hardship, expense, and oppression that the Nov. 5-6 depositions work on defendants are the usual toll in time, money, and stress that attend deposition taking,” the judge said.
Manglona said the defendants have had ample opportunity since Oct. 8 to make arrangements for traveling to Saipan and to prepare for the depositions with their lawyer.
“The depositions could have been over and done with three weeks ago, at the place of defendants’ choosing. Defendants cannot easily complain now that they have to be deposed at a time and place more amenable to Saipan Air,” she said.
Manglona said the defendants are not in the best position to cry hardship when they could have anticipated in early October—when they asked for and received relief from depositions in North Carolina—that they would soon be filing a dispositive motion.
Saipan Air is suing Stukes, Conry, Van Lier, Hank Robert, and 10 unnamed co-defendants for allegedly conspiring to fraudulently obtain money and other property from the company.