Ewa-Marie RUNDQUIST, Plaintiff, v. VAPIANO SE, et al., Defendants.
Civil Action No. 09-2207(BAH).
United States District Court, District of Columbia.
Sept. 30, 2011.
798 F. Supp. 2d 102
BERYL A. HOWELL, District Judge.
Gregory F. Hauser, Wuersch & Gering, LLP, New York, NY, Edward T. Colbert, William M. Merone, Kenyon & Kenyon, Washington, DC for Defendants.
MEMORANDUM OPINION
BERYL A. HOWELL, District Judge.
Before the Court is plaintiff Ewa-Marie Rundquist‘s motion to compel the appearance of six people for depositions in the District of
I. BACKGROUND
On November 20, 2009, the plaintiff filed a Complaint alleging that defendants Vapiano SE; Vapiano International, LLC (hereinafter “Vapiano International“); and Vapiano Franchise USA, LLC (hereinafter “Vapiano USA“) were infringing the plaintiff‘s copyrights by displaying her photographs without permission as a “central decor element” in the defendants’ upscale Italian restaurant chain named Vapiano.1 Am. Compl. ¶¶ 1, 24, 25. Defendant Vapiano SE moved to dismiss the allegations against it, arguing, inter alia, that the Court lacked jurisdiction over the German company. Def.‘s Mot. to Dismiss, ECF No. 17, at 1. In a Memorandum Opinion and Order, dated July 20, 2011, ECF Nos. 28-29, the Court denied Vapiano SE‘s motion to dismiss without prejudice, and granted the plaintiff sixty days to conduct discovery regarding Vapiano SE‘s contacts with this district. The parties were to complete jurisdictional discovery by September 18, 2011. Order dated July 20, 2011, ECF No. 29 (Howell, J.).
On August 10, 2011, the plaintiff filed a motion to compel the depositions of Kent Hahne, Klaus Rader, Matteo Thun, Martin Luible, Claus Sauer, and Gregor Gerlach in the District of Columbia. ECF No. 33.2 The plaintiff contends that these six individuals “have knowledge of Defendant Vapiano SE‘s jurisdictional contacts with the District of Columbia and play key roles in Defendants’ operations within the District.” Mem. Supp. Pl.‘s Mot. Compel, ECF No. 33, at 1. Defendant Vapiano SE filed an opposition to the plaintiff‘s motion on August 26, 2011, ECF No. 35, and defendants Vapiano International and Vapiano USA filed a joint brief in opposition to the plaintiff‘s motion on August 29, 2011. ECF No. 36. The plaintiff filed her reply brief on September 8, 2011, ECF No. 39, and, in response, the defendants requested a status conference in order to “correct several inaccurate statements” made by plaintiff in her final brief. ECF No. 40.
On September 16, 2011, the Court held an extended status conference during which, in addition to contesting the plaintiff‘s factual representations regarding the proposed deponents, counsel for defendants Vapiano Franchise and Vapiano USA acknowledged that his clients used the plaintiff‘s photographs without authorization. Transcript of September 16, 2011 Status Conference, Rundquist v. Vapiano, No. 09-cv-2207. Despite this concession, the parties continue to absorb the Court‘s resources, and that of their clients, over discovery disputes, when the gravamen of the plaintiff‘s complaint regarding infringement of her copyrighted photographs appears to be conceded.
The only issue presently before the Court, however, is the plaintiff‘s pending motion to compel. As explained below, the Court denies the plaintiff‘s request to compel the
II. DISCUSSION
As a general rule, former employees cannot be “managing agents” of an organization and the organization cannot be compelled to produce them for deposition. Simms v. Center for Correctional Health and Policy Studies, 272 F.R.D. 36, 41 (D.D.C. 2011) (“[G]enerally, a party cannot notice a deposition of a former director or employee under
The plaintiff has moved to compel depositions of six individuals in the District of Columbia. The defendants state that Messrs. Hahne, Rader, Thun, and Luible are not proper deponents because these individuals are no longer, or never were, “officers, directors, or managing agents” of any of the defendants. Vapiano SE Mem. P. & A. Opp‘n Mot. Compel, ECF 35 (“Vapiano SE Opp‘n“); Vapiano Int‘l and Vapiano USA Opp‘n Mot. Compel, ECF 36 (“Vapiano USA Opp‘n“). Vapiano SE has also refused to produce Mr. Sauer because it asserts that while he is an employee, he has no relevant knowledge of the matters for which the plaintiff seeks his deposition. Vapiano SE Opp‘n, ECF 35, at 6. Defendant Vapiano SE has agreed to produce Mr. Gerlach for deposition, but states that it will only make Mr. Gerlach available for deposition in Germany. Id. at 4. The Court addresses the propriety of each proposed deponent seriatim.
1. Kent Hahne
The plaintiff asserts that the defendants should be compelled to produce Kent Hahne for deposition because “the evidence shows that Mr. Hahne is one of Defendants’ founders and is involved with the Defendants as an officer, director and key consultant.” Mem. Supp. Pl.‘s Mot. Compel, ECF No. 33 (hereinafter “Pl.‘s Mot. Compel“), at 3. The evidence the plaintiff cites in support of this assertion is, inter alia, a caption on Vapiano International‘s “Executive Bios” webpage referencing Mr. Hahne as the “President and Owner;” franchise disclosure documents from Vapiano USA identifying Mr. Hahne as a contact person; Mr. Hahne‘s independent consulting firm‘s website which references his experience with Vapiano SE; and Mr. Hahne‘s LinkedIn.com profile where he identifies himself as “Owner and Founder of Vapiano Worldwide.” Id. at 4.
In response, the defendants provide sworn declarations from the Chief Executive Officers of both Vapiano SE and Vapiano USA attesting that Mr. Hahne was the former President of Vapiano USA and Vapiano International, but resigned his position in March 2011 and divested all of his interest in the corporation in June 2011. See Vapiano USA Opp‘n, ECF No. 36, at 3-4; Vapiano USA Opp‘n, Ex. 2, William Bessette Decl. (hereinafter Bessette Decl.), ¶¶ 3-4; Vapiano SE Opp‘n, ECF No. 35, Ex. 2, Gregor Gerlach Decl. (hereinafter Gerlach Decl.) ¶ 3. With regard to the plaintiff‘s referenced evidence, the defendants state that the franchise disclosure document that the plaintiff cites was issued on March 15, 2011, prior to Mr. Hahne‘s departure and is no longer accurate. Vapiano USA Opp‘n, ECF No. 36, at 4. The reference to Mr. Hahne on the Vapiano International website is also inaccurate and “simply an artifact from when Mr. Hahne was the company‘s president.” Id. at 5 (emphasis in original). Moreover, defendant Vapiano USA states that Mr. Hahne‘s biography as “president” of the company was removed from the website in October 2010, and the only inaccuracy is a “quote caption” on the website. Id.
The plaintiff describes as “strangely vague” the defendants’ brief statement about Mr. Hahne‘s departure from the defendant corporations and pointed out that the defendants “have not submitted any minutes, resignation letters, or other documents supporting their assertions.” Pl.‘s Reply Mot. Compel, ECF No. 39, at 3. Yet, the defendants have provided the Court with sworn declarations stating that Mr. Hahne is no longer an employee. See Bessette Decl. ¶¶ 3-4; Gerlach Decl. ¶ 3. Contrary to the plaintiff‘s assertion that “the evidence demonstrates that [Mr.] Hahne ... continue[s] to be involved in Defendants’ management,” Pl.‘s Reply Mot. Compel, ECF No. 39, at 4, the sworn evidence presented to the Court is that Mr. Hahne no longer has supervisory powers at Vapiano SE, Vapiano International or Vapiano USA, nor has the plaintiff demonstrated that Mr. Hahne‘s departure from the defendant corporations was in anyway illusory or intended to prevent him from being deposed in this matter. See In re Honda, 168 F.R.D. at 541. While Mr. Hahne now apparently manages a “restaurant and retail management group called Aperion,” which “may be a franchisee of defendant Vapiano SE,” Vapiano USA Opp‘n, ECF No. 36, at 6, a franchisee is not a “managing agent” of a corporation and does
The “general rule is that former employees cannot be managing agents of a corporation” within the meaning of
2. Klaus Rader
The plaintiff next asserts that the Court should compel the defendants to produce Klaus Rader for deposition because “is another of Defendants’ founders.” Pl.‘s Mot. Compel, ECF No. 33, at 6. Specifically, the plaintiff contends that “Vapiano Franchise USA holds Mr. Rader out in its offering document as being one of its Vice Presidents and Directors since June 2007 and one of Vapiano International‘s officers and directors since June 2005.” Id. Additionally, “[a] previous iteration of Vapiano International‘s website also identified Mr. Rader as Executive Vice President and Secretary.” Id.
The defendants’ sworn declarations, however, assert that Mr. Rader has no continuing role with the defendants, “sold all of his shares in Vapiano SE in March 2011,” Vapiano SE Opp‘n, ECF No. 35, at 8, and “at present is not an officer, director, or managing agent of [the defendants].” Vapiano USA Opp‘n, ECF No. 36, at 7; see also Bessette Decl. at 3; Gerlach Decl. ¶ 4. Moreover, the plaintiff has provided insufficient evidence to support its position that Mr. Rader is currently a “managing agent” of any of the defendants, and she does not assert that Mr. Rader currently holds any type of managerial role with them. The plaintiff has provided insufficient evidence to rebut the defendants’ sworn statements, and therefore the plaintiff‘s motion to compel the defendants to produce Mr. Rader for deposition is denied. This, of course, does not preclude the plaintiff from seeking deposition testimony from Mr. Rader through other means, including pursuant to
3. Matteo Thun
The plaintiff seeks to compel the defendants to produce Matteo Thun for a deposition. She contends that defendant Vapiano International‘s website “identifies Mr. Thun as one of its ‘Executives,’ and includes Mr. Thun‘s picture and biographical information on the ‘Executive Bios’ section of the company‘s webstie [sic].” Pl.‘s Mot. Compel, ECF No. 33, at 7. Thus, because “Mr. Thun is held out as an officer or managing agent of Defendants, [he] should be produced for a deposition in the District of Columbia.” Pl.‘s Reply Mot. Compel, ECF No. 39, at 6.
The defendants claim that Mr. Thun was never an officer or managing agent of the defendant, but was an architect hired by the defendants on a contract basis. Vapiano SE Opp‘n, ECF No. 35, at 9. According to Vapiano SE, “his relationship with Vapiano SE is that of an independent, outside professional” and he has “no more of a relationship with Vapiano SE than that of architect-client.” Id. With regard to the reference of Mr. Thun on Vapiano International‘s website, Vapiano International contends that “[l]isting Mr. Thun under the heading ‘Design and Architecture’ and describing him as responsible for the restaurant‘s ‘image’ ... hardly makes him an officer, director, or managing agent of the company, no matter how one may seek to stretch those terms.” Vapiano USA Opp‘n, ECF No. 36, at 8-9.
Again, those who are not employed by the defendant corporations cannot be considered “managing agents” of that corporation. See In re Honda, 168 F.R.D. at 541. The defendants declare in sworn statements that Mr. Thun is not currently employed by defendants and has never been a managing agent of the defendants. Bessette Decl., ¶ 7; Ger-
4. Martin Luible
The plaintiff next seeks to compel the defendants to produce Martin Luible for deposition. In support of its assertion that he is a managing agent of the defendant corporations, the plaintiff points, inter alia, to Mr. Luible‘s LinkedIn page, a 2010 magazine article discussing a Vapiano franchise that Mr. Luible recently opened, and a 2009 interview with Mr. Luible in which he discussed his career as a restaurateur. Pl.‘s Mot. Compel, ECF No. 33, Ex. 20-22. The defendants, however, have produced sworn declarations stating that Mr. Luible is a former executive of Vapiano International, and left the corporation in 2009. Bessette Decl. ¶ 6.
As previously stated, former employees of corporations generally cannot be compelled to testify on behalf of their former corporation. See Simms, 272 F.R.D. at 41. There is insufficient evidence to overcome the defendants’ sworn statements that Mr. Luible is no longer an employee of the defendants. Even as the owner of a Vapiano franchise, Mr. Luible is not a managing agent or even an employee of the defendant corporations and cannot speak to the limited jurisdictional questions at issue at this stage in the litigation. This, of course, does not preclude the plaintiff from seeking deposition testimony from Mr. Luible through other means, including pursuant to
5. Claus Sauer
The plaintiff requests that the Court compel the defendants to produce Claus Sauer for deposition. According to the plaintiff, Vapiano SE admits that it employs Mr. Sauer and a franchise document indicates that he “was in charge of running training programs for new franchisees in the District of Columbia.” Pl.‘s Mot. Compel, ECF No. 33, at 8; Pl.‘s Reply Mot. Compel, ECF No. 39, at 5. The defendants, again through sworn declaration, state that although Mr. Sauer is defendant Vapiano SE‘s Head of Franchising for Western Europe, he “has no responsibilities or duties with respect to Vapiano restaurants in the United States, and played no role in training of personnel at those restaurants.” Gerlach Decl., ¶ 7; Vapiano SE Opp‘n, ECF No. 35, at 6. Additionally, defendant Vapiano SE states that even though a franchise document on Vapiano International‘s website states that Mr. Sauer was to conduct operations training, “that in fact did not happen.” Id. Defendants Vapiano International and Vapiano USA state that Mr. Sauer “has never been employed by or associated with [them], nor has he provided employee training on [their] behalf.” Vapiano USA Opp‘n, ECF No. 36, at 9.
Since Mr. Sauer is indisputably an employee of defendant Vapiano SE, the question before the Court is whether he qualifies as an officer, director, or managing agent of that corporation. To make this determination, the Court considers “(1) whether the corporation has invested the person with discretion to exercise his judgment, (2) whether the employee can be depended upon to carry out the employer‘s directions, and (3) whether the individual can be expected to identify him or herself with the interests of the corporation as opposed to the interests of the adverse party. Other factors to consider include the degree of supervisory authority which a person is subject to in a given area and the general responsibilities of the individual regarding the matters at issue in the litigation.” See In re Honda, 168 F.R.D. at 540-41.
Vapiano SE does not contest that Mr. Sauer is an executive of its company, and stated during the September 16, 2011 hear-
B. The Plaintiff May Depose Mr. Gerlach in Washington, D.C.
The plaintiff seeks to depose and the defendants have agreed to produce Gregor Gerlach, Vapiano SE‘s CEO and current President of defendants Vapiano International and Vapiano USA. The dispute over this proposed deposition is whether it should take place in the District of Columbia or in Germany. See Vapiano USA Opp‘n, ECF No. 36, at 9; Pl.‘s Mot. Compel, at 4-5.
In considering where the deposition of a corporate agent is to take place, there is a general presumption that the deposition will occur at the corporation‘s principal place of business. Barko v. Halliburton Co., 270 F.R.D. 26, 28 (D.D.C. 2010); see In re Outsidewall Tire Litig., 267 F.R.D. 466, 471 (E.D. Va. 2010) (“Courts have implemented essentially the same scheme for corporate defendants. Thus, courts have generally recognized a presumption ... [that] 30(b)(6) depositions of a foreign defendant corporation‘s officers or managing agents should be taken at the corporation‘s principal place of business“). However, this presumption is rebuttable and the Court can focus on several factors to determine if it would be inappropriate to have the deposition at the foreign defendant corporation‘s principal place of business. See Barko, 270 F.R.D. at 28-29; Nat‘l Cmty. Reinvestment Coalition v. Novastar Fin., Inc., 604 F. Supp. 2d 26, 31 (D.D.C. 2009); Custom Form Mfg., Inc. v. Omron Corp., 196 F.R.D. 333 (N.D. Ind. 2000) (holding that the district court had personal jurisdiction over the defendant Japanese company and that justice would best be served by compelling deposition of defendant employees within the district). These factors include: “location of counsel for both parties; size of defendant corporation and regularity of executive travel; resolution of discovery disputes by the forum court; and the nature of the claim and the relationship of the parties.” Nat‘l Cmty. Reinvestment Coalition, 604 F. Supp. 2d at 31.
The defendants assert that Mr. Gerlach is new to his position as president of Vapiano International and Vapiano Franchise USA, whose principle places of business are in Virginia, and any relevant knowledge regarding this litigation matter came through his position in Vapiano SE, whose principle place of business is in Hamburg, Germany. See Vapiano USA Opp‘n, ECF No. 36, at 9-11. In other words, the defendants attempt to argue that the current president of Vapiano Franchise USA and Vapiano International would have no relevant knowledge of Vapiano SE‘s connection with the United States, and only an officer of Vapiano SE would be privy to this information. This argument is erroneous.
Mr. Gerlach is the current president of Vapiano International and Vapiano Franchise USA and clearly is a proper corporate deponent under the
III. PLAINTIFF‘S REQUEST TO EXTEND DISCOVERY
The plaintiff states that due to disputes between the parties, she is “having difficulty obtaining jurisdictional discovery from Defendants,” and therefore requests an additional sixty days to gather evidence of defendant Vapiano SE‘s ties to this jurisdiction. Pl.‘s Mot. Compel, ECF No. 33, at 1. Although defendant Vapiano SE states that additional time is not necessary, it appears clear that the plaintiff is being forced to untangle the defendants’ complex and intertwined corporate relationships as a condition precedent to reaching the merits of the plaintiff‘s case, which, as explained earlier, appear unchallenged.4 Indeed, the plaintiff‘s attempt to reach the merits of this case is made all the more complicated by the defendants’ relatively anemic production of documents during discovery. Counsel for defendant Vapiano SE conceded during oral argument that the document production to date has been minimal and proffers by way of explanation that the German legal system “is very different” and “[t]hey do business with far fewer pages of documents than we‘re used to in this country.” Transcript of September 16, 2011 Status Conference, Rundquist v. Vapiano, No. 09-cv-2207 (Counsel for Vapiano SE stated: “Their contracts tend to be a small fraction in relation to ours ... so when you go into a situation, when you are looking for transactions ... [the documents you] are going to get [is] incredibly small.“). Whatever the reason for the concededly minimal production to date of only “a few hundred documents” regarding transactions of a global corporation operating, managing, or franchising dozens of restaurants across the world, the issue of compliance with document discovery is not presently before the Court. Id. As noted during the September 16, 2011 status conference, the Court is not presented with a motion to compel production of documents at the present time, but henceforth expects the parties to comply fully with outstanding discovery requests so that this case may be resolved on the merits as expeditiously as practicable. That said, the delay resulting from litigation over the parties’ deposition disputes warrants additional time for jurisdictional discovery. Accordingly, the plaintiff‘s request for an additional sixty days of jurisdictional discovery is granted.
IV. CONCLUSION
For the foregoing reasons, the plaintiff‘s Motion to Compel Production of Witnesses for Depositions and to Extend Jurisdictional Discovery is granted in part and denied in part. The plaintiff‘s request to compel depositions of Kent Hahne, Klaus Rader, Matteo Thun, and Martin Luible is denied. Plaintiff‘s motion to compel Vapiano SE to produce for deposition Claus Sauer, and Vapiano International and Vapiano USA to produce Gregor Gerlach for deposition in the District of Columbia is granted. Additionally, the plaintiff‘s request to extend jurisdictional discovery for a period of sixty days is granted. An Order consistent with this Memorandum Opinion will be entered.
BERYL A. HOWELL
UNITED STATES DISTRICT JUDGE
Notes
Mr. Merone: ... When they talk about the photos, there are like 60 photos of like three or four were one in one restaurant like four and five in another. That‘s what they‘re talking about. A couple of photo out of all the photos of various Italian street scenes. So,.
The Court: Only a couple of the photos are in some of the Vapiano restaurants—
Mr. Merone: Yeah, there are like five in D.C.
The Court: Did I understand you just to say that only a couple of photos out of the many photos used in Vapiano Restaurants are the plaintiff‘s photos. Is that what you just said?
Mr. Merone: Your Honor, if the plaintiff owns the photographs that we‘re being sued on, I‘m going to accept that.
Transcript of September 16, 2011 Status Conference, Rundquist v. Vapiano, No. 09-cv-2207.