Opinion
No. 94-CIV. 0655 (TPG)
January 23, 2003
OPINION AND ORDER
Adegboyega A. Coker, defendant pro se in this matter, initiated a telephone conference on January 9, 2003 for the purpose of requesting that his videotaped deposition, which by Order of the Court dated December 18, 2002 is ordered to proceed on January 27, 2003 at the offices of Cadwalader, Wickersham and Taft in New York, instead take place in Lagos, Nigeria. After hearing arguments from plaintiff's counsel and defendant, the Court held, for the reasons stated below, that defendant's request to hold his deposition in Lagos, Nigeria is denied in its entirety. The Court reiterated that the Court's Order dated December 18, 2002 continued to be in full force and effect and that defendant's failure to appear for deposition in New York on January 27, 2002 (and from day to day thereafter until his deposition was completed), would result in the automatic entry of a default judgment against defendant without further notice.
On January 21, 2003, counsel for plaintiff United Bank for Africa Plc ("UBA") notified the Court that he had received via UPS delivery on January 20, 2003 a motion by defendant dated January 9, 2003 — the same date as the telephone conference with the Court — requesting the identical relief already denied by the Court in the telephone conference. The motion fails to make mention of the January 9, 2003 telephone conference and does not set forth any basis for reconsideration of the Court's decision as required by Local Civil Rule 6.3. Accordingly, the Court assumes that the written motion is the identical motion made by defendant during the January 9, 2003 telephone conference which the Court for good reason denied. Accordingly, defendant's written motion for a change of venue of the deposition is moot.
Nevertheless, counsel for plaintiff, in his letter to the Court dated January 21, 2003, suggests that defendant may be improperly attempting to avoid appearing at his Court ordered deposition. Counsel for UBA suggests that Coker may try to argue that a written motion to change the venue for the deposition is still pending and that the mere pendency of a motion somehow stays this Court's Order dated December 18, 2002 and the Court's denial of defendant's motion on January 9, 2003. Counsel represents that, contrary to defendant's sworn certification that his motion was mailed postage pre-paid on January 9, 2003, the UPS tracking numbers indicate that the motion was actually mailed on January 16, 2003. Counsel for plaintiff suggests in his letter to the Court that defendant's back-dating of his motion is a deliberate effort to obfuscate the true nature and intent of his motion, i.e., to thwart enforcement of a default judgment in Nigeria.
If indeed defendant is attempting to file yet another motion to change the venue of his deposition, his motion must once again be denied in its entirety for a number of reasons. Procedurally, defendant's motion must be considered a motion for reconsideration of this Court's previous written Order dated December 18, 2002 and its Order verbally communicated to defendant during the January 9, 2002 telephone conference. Yet, defendant has pointed to no basis for reconsideration of the Court's decision. Defendant merely repeats the same arguments he made in the written requests for a change of deposition venue he made in his response to plaintiff's Order to Show Cause dated November 21, 2002. After considering those arguments, the Court entered its Order dated December 18, 2002 which requires defendant to appear in New York for deposition. Defendant then repeated the identical arguments in his oral application for a change of venue during the telephone conference of January 9, 2003. The Court again refused to modify its December 18, 2002 Order compelling defendant to appear for deposition in New York. Therefore, viewing defendant's written motion dated January 9, 2003 as a motion for reconsideration, the Court must deny the motion. It should further be noted that even if defendant's written motion was pending and was not already decided, the mere pendency of defendant's motion would not in any way stay or modify the clear terms of the Court's December 18, 2002 Order, including defendant's obligation to appear for deposition in New York on January 27, 2003.
On the merits, defendant's application is frivolous. As already communicated to defendant on January 9, 2003, this action has been pending in the Southern District of New York since February 1994 and concerns defendant's racketeering activities in this jurisdiction when he was the General Manager of UBA's New York office. Moreover defendant has appeared in this action and has asserted counterclaims against UBA. Under the circumstances, defendant must be willing to appear in this jurisdiction to both prosecute his counterclaim and to answer questions under oath concerning his alleged misconduct in connection with plaintiff's claims. Although UBA has its head office in Lagos, Nigeria, counsel for UBA states that the case has been handled over the past eight years exclusively by New York counsel (except for purely ministerial matters such as service of process) and that there are no attorneys in Lagos who are sufficiently familiar with the facts of the case and the complex nature of the applicable RICO statutes to take the defendant's deposition Counsel for UBA further notes that all the documents involved in this case, which he asserts constitute all the voluminous bank files of UBA's New York office from the relevant time period, are all located in New York. The cost of transferring those files to Nigeria for a five day deposition, together with the cost of time and travel for a team of attorneys and an expert witness, would be enormous. Counsel for UBA also states that there would be great difficulty even obtaining a videotaped deposition by a certified court reporter and videographer in Lagos.
Additionally, defendant failed to object to the Notice of Deposition served upon him in July 2002. It was not until after defendant failed to appear for his Court ordered deposition on November 18, 2002, and after UBA applied for an Order to Show Cause in December 2002 that defendant belatedly chose to first raise the issue of the proper location for his deposition. Finally, defendant has repeatedly stated in Court documents that he is a resident alien of the United States, when it has suited his purposes.
Against all of the foregoing arguments, which the Court finds persuasive, defendant states that he lacks the financial resources to travel to the United States. However, during the January 9, 2003 telephone conference defendant did not deny that he traveled to the United States as recently as August or September 2002, and also traveled to the United States the year before that. Defendant also does not deny that within the past few years he sold a house he owned in Scarsdale, New York. Defendant is also employed or appears to have an interest in a business concern in Lagos. Most telling, defendant has repeatedly refused to produce any bank statements, passports or other financial data to support his claim that he is unable to travel, as ordered by this Court.
For all of the foregoing reasons, the Court denies defendant's motion to have his deposition take place in Nigeria. The Court's Order of December 18, 2002 remains in full force and effect.