ALBERTO GENARO VAIL LOPEZ et al. v. TIMECO INC., d/b/a BARGAIN WHOLESALE et al.
Case No. 14-cv-1040 (RJL/GMH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
November 29, 2017
G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE
MEMORANDUM OPINION AND ORDER
This case was referred to the undersigned for the resolution of all discovery-related matters. Before the Court is Plaintiffs’ submission styled a “Motion to Compel the Deposition of Defendant Houshang Momeniаn and Mart Dashzegve” [Dkt. 37], filed on October 18, 2017, which is now ripe for adjudication. For the following reasons the motion is denied.
BACKGROUND
Plaintiffs initiated this action against Defendants on June 18, 2014, under the
Discovery was initially set to close on March 31, 2015. See 10/7/2014 Minute Order. Following a series of joint motions, see [Dkts. 12, 13, 14], U.S. District Judge Richard J. Leon extended the discovery deadline to September 30, 2015, see 7/13/15 Minute Order.
Notwithstanding the court-ordered close of discovery in September 2015, the parties continued to conduct discovery after that deadline. [Dkt. 37, ¶ 11]. Defendants responded to Plaintiffs’ discovery requests in early December 2015. [Dkt. 37, ¶ 9; Dkt. 37-3]. In response to Interrogatory No. 1, Defendants identified 26 individuals, including 21 individuals classified as either butchers or warehouse employees who were “expected to testify as to the tip reporting cоntroversy [and] the tip procedure at the company.”2 [Dkt. 37-3 at 3–5]. Among these was an employee designated “Mart Dashzeque.” [Dkt. 37-3 at 4].
Over nine months later, in September 2016, Plaintiffs filed a motion for partial summary judgment focusing on thе issue of the tip credit. Pl. S.J. Mot. [Dkt. 24]. Plaintiffs supported their motion with testimony from Mr. Momenian‘s deposition, in which he indicated that he did not inform tipped employees who worked for Timeco about the tip credit because “[t]hey know before they come.” [Dkt. 24 at 5; Dkt. 24-1 at 10]. In their response, filed in January 2017, Defendants
LEGAL STANDARD
Although Plaintiffs’ motion is designated a motion to compel, it is more properly characterized as a motion to re-open discovery. Rule 16 of the Federal Rules of Civil Procedure requires the district court to issue a scheduling order governing various deadlines, including the deadline to complete discovery.
DISCUSSION
A. Continued Deposition of Mr. Momenian
Plaintiffs’ argument regarding Mr. Momenian‘s deposition is simple: the parties agreed in June 2015 that the deposition could be continued after Defendants produced discovery [Dkt. 37, ¶ 8]; Defendants рroduced the discovery in December 2015 [Dkt. 37, ¶ 9]; therefore, discovery should be re-opened to finish the deposition. Plaintiffs have not explained why they failed to request completion of Mr. Momenian‘s deposition until mоre than one and one-half years after they received the needed information. Nor have they divulged why they waited until after Judge Leon denied their motion for summary judgment. They have not, that is, attempted to show that they diligently pursued this discovery.
Indeed, it appears that it was the denial of the motion for summary judgment, itself, which inspired this tardy attempt. On September 11, 2017—eleven days after the motion was denied—counsel for Plaintiffs asked counsel for Defendants to make Mr. Momenian available for deposition “in light of the ruling by [Judge Leon].” [Dkt. 37-4]. But they offer no precedent, and the undersigned is aware of none, that suggests that a party who decides to seek additional disсovery on the sole basis that its motion for summary judgment has been denied has demonstrated good cause to re-open discovery. Cf., e.g., Ned Chartering & Trading, Inc. v. Republic of Pakistan, 294 F.3d 148, 152 (D.C. Cir. 2002) (rejecting argument that, “because ‘attorneys are not clairvoyant,’ [defendant] could not foresee the discovery it would need until it saw [plaintiff‘s] summary judgment motion“). Plaintiffs have therefore not met their burden.
B. Deposition of Mr. Dashzegve
Plaintiffs’ argument as to Mr. Dashzegve is marginally more developed. They contend that they “had no meaningful notice regarding the facts and the purported importance of Mart Dashzegve as a witness. In fact, in the responses to the Discovery Requests, Mr. Dashzegve is only identified as an employee rather than a manager.” [Dkt. 37, ¶ 14]. However, as Plaintiffs acknowledge, Mr. Dashzegve was identified in Defendants’ response to Interrogatory No. 1 as a person who was “expected to testify as to the tip reporting controversy [and] the tip procedure at the company.”3 [Dkt. 37, ¶ 13]. To be sure, Mr. Dashzegve was one of a number of other potential witnesses with such information, but that does not signal that his knowledge regarding the company‘s tipping policies wаs somehow hidden from Plaintiffs or sprung upon them over a year after the disclosure was originally made. Indeed, Plaintiffs are all former employees of Timeco [Dkt. 9, ¶¶ 17–26], so Mr. Dashzegve‘s “importance” to the case cannot have been a surprise.
Moreover, Plaintiffs’ argument, focused as it is on Mr. Dashzegve, seems to miss the point slightly. The motion for partial summary judgment and this ensuing request indicate that any shortcomings in Plaintiffs’ discovery relate tо Timeco‘s communication of its tipping policies to employees. But as Judge Leon pointed out, it is reasonable to infer from the operative Complaint that “an organization [like Timeco] with the resоurces to hire ten workers is also likely to employ supervisors who . . . discuss company policy with their subordinates,” especially since Plaintiffs acknowledged therein that Mr. Momenian “may have only ‘indirectly’ supervised Timeco‘s employees.” Lopez, 2017 WL 3836043, at *2 (quoting Amend. Compl., ¶ 11). That is, Plaintiffs should have known from the outset of this case that Timeco potentially employed
Plaintiffs make no argument as to any of the other factors tending to demonstrate good cause, see, e.g., Parker, 204 F.3d at 340 (“[W]here the moving party has demonstrated good cause,
CONCLUSION
For the reasons stated, it is hereby
ORDERED that Plaintiffs’ Motion to Compel the Depositions of Defendant Houshang Memonian and Mart Dashzegve [Dkt. 37] is DENIED.
SO ORDERED.
Date: November 29, 2017
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
