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Flanagan v. Wyndham International

October 5, 2005

KEVIN FLANAGAN, ET AL., PLAINTIFFS,
v.
WYNDHAM INTERNATIONAL INC., ET AL., DEFENDANTS, AND BRIAN JAMES, ET AL., PLAINTIFFS,
v.
WYNDHAM INTERNATIONAL INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on Non-Party S.G.'s Motion [1] to Quash Subpoena Duces Tecum Served December 22, 2004 and for a Protective Order, Wyndham Defendants' Motion [14] for Leave to File Sur-Reply, and Non-Party S.G.'s Motion [17] for Notice of Supplemental Authority. The underlying Flanagan and James actions are currently pending in the United States District Court of the Virgin Islands; this Court has ancillary jurisdiction over matters related to the above-mentioned motions only. S.G. alleges that she does not possess relevant and non-duplicative information about the Flanagan and James cases and that the deposition requested by the Wyndham Defendants*fn1 would unduly burden and harass her. Upon consideration of the parties' filings, the applicable law, and the record herein, Wyndham Defendants' Motion for Leave to File Sur-Reply is granted, Non-Party S.G.'s Motion for Notice of Supplemental Authority is granted, and non-party S.G.'s motion to quash is denied in accordance with this memorandum opinion.

I. BACKGROUND

In December 2000, Flora Nicholas and Paul Gayter filed suit in the United States District Court of the Virgin Islands on behalf of their minor daughter S.G. against the Wyndham Defendants and its employee Bryan Hornby. Nicholas, et al. v. Wyndham Int'l, Inc., et al., Civil No. 2001/147-M/R. Hornby worked at the Kids Klub day-care program at the Wyndham Sugar Bay Resort in St. Thomas. The suit sought damages arising out of Hornby's alleged sexual molestation of S.G. while she was under his care. After the initiation of the civil suit, Hornby was convicted of sexually molesting S.G. and is currently incarcerated in the Virgin Islands. The Wyndham Defendants conducted a deposition of S.G. in Nicholas on September 30, 2002, and the parties have since completed discovery and are now awaiting trial. Since filing suit against the Wyndham Defendants, the Gayters have attempted to contact other families whose children had contact with Hornby while he was employed at the Kids Klub. To that end, S.G.'s parents have granted several media interviews, and have allowed local and national news outlets to interview S.G.

Approximately two years after Nicholas was filed, the plaintiffs in the two underlying actions, Flanagan and James, filed similar suits against the Wyndham Defendants and Hornby. These two actions were filed in the U.S. District Court of the Virgin Islands, which consolidated them for discovery purposes. The plaintiffs in Flanagan and James allege that Hornby sexually molested the 9-year old Flanagan girl and the 8-year old James girl while they attended the Wyndham Kids Klub. The Gayters' visit to Wyndham Sugar Bay overlapped with the Flanagan family's visit and preceded the James family's visit by two weeks. The Flanagan and James complaints make virtually identical references to the Gayters' visit to Wyndham Sugar Bay Resort; the Initial Disclosures in both Flanagan and James refer to S.G. and her parents as individuals who "have and/or are likely to have" discoverable information which the plaintiffs may potentially use. Pl.'s Initial Disclosure Pursuant to Rule 26(a)(1), Civil No. 2002/237 -M/R, at 2-4; Pl.'s Initial Disclosure Pursuant to Rule 26(a)(1), Civil No. 2002/155 - M/R, at 2-4. The plaintiffs' causes of action against the Wyndham Defendants include negligent hiring and retention, negligent supervision, and respondeat superior, among others.

On July 22, 2004, the Wyndham Defendants filed a motion in the U.S. District Court of the Virgin Islands requesting an order compelling the discovery of relevant information from S.G. and her parents. On October 12, 2004, over the James and Flanagan plaintiffs' opposition, the court allowed the Wyndham Defendants to notice the depositions of S.G. and her parents (by way of a third-party subpoena from S.G.'s local district court), but set several conditions on any such depositions. The court ordered that

The scope of any depositions of Flora Nichols, Paul Gayter, and/or S.G. [be] limited to the said witnesses' knowledge and information regarding the [Flanagan and James] cases only. Moreover, any questioning or attempts to obtain information that correlates to, is duplicative of, or otherwise parallels the testimony given in any previous deposition(s) is not permitted.

Order Regarding Wyndham Defendants' Mot. Compel Disc. (Cannon, Mag. J.) ("Order to Compel") at 6-7. On December 22, 2004, the Wyndham Defendants served subpoenas on S.G. and her parents commanding them to appear for depositions in their attorney's District of Columbia office on January 10, 2005. S.G.'s counsel in turn informed the Wyndham Defendants that S.G. possessed no information about the Flanagan or James cases other than what she testified to in the depositions and at trial in Nicholas. The Wyndham Defendants did not agree to withdraw the subpoena and on January 4, 2005, S.G. filed Non-Party S.G.'s Motion to Quash Subpoena Duces Tecum Served December 22, 2004 and for a Protective Order ("Mot. Quash"). The Motion to Quash alleged that S.G. possessed no information relevant to the Flanagan and James actions and that a deposition in this case would subject her to an undue burden. The motion included a signed declaration by S.G. asserting that she had never met or communicated with the Flanagan family except for attending the Wyndham Kids Klub at the same time as the Flanagans' daughter, which she testified about in Nicholas, and furthermore that she had no personal knowledge of the allegations in Flanagan and James. On January 10, 2005, the Wyndham Defendants deposed S.G.'s parents but S.G. did not appear. The Wyndham Defendants continue to seek to depose S.G. about her knowledge relevant to the Flanagan and James actions.

II. ANALYSIS

A. Wyndham Defendants' Motion for Leave to File Sur-Reply

The Wyndham Defendants filed a motion for leave to file a sur-reply to S.G.'s reply to their opposition to S.G.'s Motion to Quash. The grounds for this motion are that the reply filed by S.G. included a signed declaration by S.G. not included in the original Motion to Quash. A sur-reply may only be filed by leave of court, and only "to address new matters raised in a reply, to which a party would otherwise be unable to respond." United States v. Baroid Corp., 346 F.Supp.2d 138, 143 (D.D.C. 2004) (Lamberth, J.) (quoting United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., 238 F.Supp.2d 270, 276-77 (D.D.C. 2002)). A district court "routinely grants such motions when a party is unable to contest matters presented to the court for the first time in the last scheduled pleading." Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (quoting Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001)); see also Alexander v. F.B.I., 186 F.R.D. 71, 74 (D.D.C. 1998) (Lamberth, J.) (granting motion for leave to file sur-reply, where other party's reply included a declaration not included in its original motion). Through their sur-reply, the Wyndham Defendants seek an opportunity to refute the statements made by S.G. in her supplemental declaration. Were this Court to deny the Wyndham Defendants leave to file a sur-reply, the Wyndham Defendants would be unable to contest matters presented to the court for the first time in the form of S.G.'s supplemental declaration. Hence, it is the conclusion of this Court that the Wyndham Defendants have demonstrated good cause for the Court to grant this motion. The Wyndham Defendants' motion for leave to file sur-reply is granted and their sur-reply will be filed.

B. S.G.'s Motion for Notice of Supplemental Authority

Non-party S.G. filed a Motion for Notice of Supplemental Authority to bring to this Court's attention an order entered by the U.S. District Court of the Virgin Islands in this case on February 17, 2005. That order stayed the Wyndham Defendants' motion for sanctions in the underlying discovery dispute pending the present ruling of this Court. Non-party S.G.'s motion for ...


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