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Ewa-Marie Rundquist v. Vapiano Se

September 30, 2011

EWA-MARIE RUNDQUIST,
PLAINTIFF,
v.
VAPIANO SE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Before the Court is plaintiff Ewa-Marie Rundquist's motion to compel the appearance of six people for depositions in the District of Columbia, and to extend the period for jurisdictional discovery for sixty days. The six noticed deponents are: Kent Hahne, Klaus Rader, Matteo Thun, Martin Luible, Claus Sauer, and Gregor Gerlach. The plaintiff contends that these individuals are officers, directors, or managing agents of defendants Vapiano SE, Vapiano International, and Vapiano Franchise USA. For the reasons set forth below, the plaintiff's motion is denied in part and granted in part. Vapiano SE is directed to produce Claus Sauer for deposition, and Vapiano International and Vapiano USA are directed to produce Gregor Gerlach for deposition in the District of Columbia. The plaintiff's request to compel depositions of Messrs. Hahne, Rader, Thun and Luible, however, is denied because these individuals are no longer employed by the defendants. In addition, the plaintiff is granted an additional sixty days to conduct jurisdictional discovery.

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.*fn1 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.*fn2 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 depositions of Messrs. Hahne, Rader, Thun, and Luible because they are not officers, directors, or managing agents of the defendant corporations. Defendant Vapiano SE is directed, however, to produce Mr. Sauer for deposition because he is a managing agent of that corporation. The Court additionally grants the plaintiff's motion to compel the deposition in the District of Columbia of Mr. Gerlach, who is the current CEO of Vapiano SE and President of Vapiano International.

II.DISCUSSION

Federal Rules of Civil Procedure 30(b)(6) allows adverse parties to obtain depositions from private and public corporations through their officers, directors or managing agents. Pursuant to Federal Rule of Civil Procedure 32(a)(3), "an adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent." Courts have liberally construed the term managing agent, and the determination of whether an individual can be considered a "managing agent" of an organization is fact intensive, decided largely on a case-by-case basis. Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1452 (D.C. Cir. 1986) ("The law concerning who may properly be designated as a managing agent is sketchy. Largely because of the vast variety of factual circumstances to which the concept must be applied, the standard, like so many others in the law, remains a functional one to be determined largely on a case-by-case basis."). The D.C. Circuit has noted that "[f]or the purpose of determining whether an individual is a 'managing agent' within the meaning of the discovery rules, . . . the focus begins with the character of the individual's control." Id. at 1452-53. Other factors include "both the degree to which the interests of the individual and the corporation converge, and how helpful the individual will be in fact-finding on the matter at issue, in comparison to others associated with the corporation." Id. at 1453; see also E.I. DuPont de Nemours and Co. v. Kolon Indus., Inc., 268 F.R.D. 45, 48-49 (E.D. Va. 2010) (stating that relevant factors in considering an individual's managing agent status include "(1) the discretionary authority vested in the person by the corporation; (2) the employee's dependability in following the employer's directions; (3) whether the individual is more likely to identify with the corporation or the adverse party in the litigation; and (4) the degree of supervisory authority in areas pertinent to the litigation.").

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 Rule 30(b)(6). If plaintiff wishes to compel specific witnesses to testify, therefore, she must subpoena them pursuant to Federal Rules of Civil Procedure 30(a)(1) and 45." (internal citations omitted)); In re Honda Am. Motor Co., Inc. Dealership Relations Litig., 168 F.R.D. 535, 541 (D. Md. 1996). The determination of a deponent's status as a "managing agent" is "determined as of the time of the deposition, not as of the time when the activities disputed in the litigation occurred." Kolon Indus., Inc.,268 F.R.D. at 49 (quoting In re Honda, 168 F.R.D. at 540). However, courts have made exceptions to this general rule, for example when a corporation terminates an officer in light of pending litigation, plans to rehire the individual in another position, or an individual continues to act as a managing agent despite no longer being an employee. See In re Honda, 168 F.R.D. at 541; Kolon Indus., Inc.,268 F.R.D. at 50-51 (stating that "[t]he timing and circumstances of [defendant's] reassignment or termination of its employees render the true status of the proposed deponents highly suspect, and allow for a strong inference that [the defendant] is moving its employees around like chessmen, conveniently shielding them from [] access."); Boston Diagnostics Dev. Corp., Inc. v. Kollsman Mfg. Co., Div. of Sequa Corp., 123 F.R.D. 415, 417 (D. Mass. 1988) (compelling testimony of a former employee when employee continued to act in a capacity equivalent to managing agent of defendant corporation).

A.Proposed Corporate Deponents

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 ...


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