United States District Court, District of Columbia
ALBERTO GENARO VAIL LOPEZ et al. Plaintiffs,
TIMECO INC., d/b/a BARGAIN WHOLESALE et al. Defendants.
MEMORANDUM OPINION AND ORDER
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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].
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.” [Dkt. 37-3 at 3-5]. Among these was an
employee designated “Mart Dashzeque.” [Dkt. 37-3
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.
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.
Continued Deposition of Mr. Momenian
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.
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 ...