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Vail Lopez v. Timeco, Inc.

United States District Court, District of Columbia

November 29, 2017

ALBERTO GENARO VAIL LOPEZ et al. Plaintiffs,
v.
TIMECO INC., d/b/a BARGAIN WHOLESALE et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

         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 Momenian 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 D.C. Minimum Wage Revision Act, the D.C. Wage Payment and Collection Law, and the federal Fair Labor Standards Act (“FLSA”). Amend. Compl. [Dkt. 9]. Plaintiffs allege that they “worked for Defendants as butchers, stockpersons, and deliverymen, ” and that Defendants failed to properly pay them their minimum and overtime wages. Id. at 1.

         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.

         Meanwhile, Plaintiffs propounded discovery requests in November 2014, which included an interrogatory (“Interrogatory No. 1”) asking Defendants to identify all individuals who had discoverable factual information about the claims or defenses in the case, as well as the subjects of that information. [Dkt. 37, ¶¶ 4, 13]. The parties also attempted to schedule the deposition of Defendant Mr. Momenian, the president of Defendant Timeco, Inc. [Dkt. 9, ¶ 5; Dkt. 37, ¶¶ 6-7]. Plaintiffs deposed Mr. Memonian for two hours on June 18, 2015, and thereafter held the deposition open because they had not yet received all of the documents that Defendants planned to produce. [Dkt. 37-2 at 4; Dkt. 38 at 1].[1]

         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 controversy [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 the 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 countered that Mr. Momenian did not manage the employees day-to-day; rather Mart Dashzegve performed that function. Def. S.J. Opp. [Dkt. 32 at 5-6]. Defendants provided an affidavit from Mr. Dashzegve asserting that, as manager of the business, he informed all new hires of their weekly pay and the fact that that amount would be supplemented by tips. [Dkt. 32-3, ¶¶ 4, 7-9]. Judge Leon denied Plaintiffs' motion for partial summary judgment in August 2017. See Lopez v. Timeco, Inc., __ F.Supp.3d __, 2017 WL 3836043 (D.D.C. 2017). On October 18, 2017, Plaintiffs filed their motion to compel seeking to continue the deposition of Mr. Momenian and to depose Mr. Dashzegve.

         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. Fed.R.Civ.P. 16(a)(2)-(3). Such orders not only allow the parties to organize the course of the litigation, but, equally importantly, permit the court to control its docket. See, e.g., Lurie v. Mid-Atlantic Permanente Med. Grp., 589 F.Supp.2d 21, 23 (D.D.C. 2008). Thus, Rule 16 allows a scheduling order to be “modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(a)(4); see also LCvR 16.4(a). “In deciding whether good cause exists under Rules 16(b) and [LCvR] 16.4 to amend a scheduling order, the Court primarily considers the diligence of the party in seeking discovery before the deadline.” Barnes v. D.C., 289 F.R.D. 1, 7 (D.D.C. 2012). Other factors include whether trial is imminent, whether the non-moving party consents, whether the non-moving party would be prejudiced, the foreseeability of the need for additional discovery given the time allotted by the court, and the likelihood that the discovery sought will lead to relevant evidence. See Watt v. All Clear Bus. Sols., LLC, 840 F.Supp.2d 324, 326 (D.D.C. 2012). The party seeking to reopen discovery bears the burden of showing good cause, see, e.g., Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000); ultimately, the decision “is within the sound discretion of the trial court, ” Barnes, 289 F.R.D. at 7.

         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 produced 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 more 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 discovery 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 ...


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