Opinion
Action by Joseph Anthony against R. K. O. Radio Pictures, Inc., and another, for alleged plagiarism of a motion picture story. On plaintiff's motion to vacate defendants' notice to take plaintiff's deposition.
Motion denied.
Davidson & Davidson, of New York City (Louis B. Davidson and David Targ, both of New York City, of counsel), for plaintiff.
Donovan, Leisure, Newton, Lumbard & Irving, of New York City (J. V. Hayes, L. F. MacMahon and E. J. Speno, all of New York City, of counsel), for defendants.
KAUFMAN, District Judge.
The plaintiff moves to vacate the defendants' notice to take his deposition. This action was commenced on September 3, 1948 to recover damages for plagiarism of a motion picture story. Jurisdiction is based on the ground of diversity of citizenship, plaintiff being a citizen and resident of New York, and the defendants being residents of another state. The ground for this motion to vacate the defendants' notice to take the deposition of the plaintiff is that subsequent to the commencement of the action, the plaintiff moved to Columbia, Missouri, where he is now the Director of Public Relations of Stephen's College in that city. Plaintiff states that compelling him to leave Missouri for the purpose of giving his deposition would place his position in jeopardy and, further, that the expense involved would be an undue financial burden. He requests that if the Court orders the examination to proceed in Missouri, he be allowed counsel fees to be paid by the defendants pursuant to Rule 12 of the Civil Rules of the United States District Court for the Southern District of New York.
The defendants urge that the plaintiff, once having chosen this Court as his forum, should be required to give his deposition in the district in which the action is pending. This seems to be a reasonable contention, particularly in this case where the suit was commenced less than two months ago.
The motion to vacate the examination is denied.