Cramton v. Grabbagreen Franchising LLC et al

Filing 175

ORDER: IT IS ORDERED that: (1) Defendants' motion for reconsideration (Doc. 136 ) is granted; (2) Defendants are authorized to depose Cramton for an additional three hours, by May 31, 2019; and (3) The additional deposition need not be limited to the topics of the minimum wage claim and the Cramton-Farrell calls and may also encompass the topics of the Cramton-Mavros call and the iPhone/iCloud issues [see attached Order for details]. Signed by Judge Dominic W Lanza on 4/30/19. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kim Cramton,
Plaintiff,

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ORDER

v.

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No. CV-17-04663-PHX-DWL

Grabbagreen Franchising LLC, et al.,

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Defendants.

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The deposition of Plaintiff Kim Cramton (“Cramton”) took place on December 13,

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2018. Afterward, Defendants filed a motion asking the Court to authorize three additional

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hours of deposition time. (Doc. 107.) In this motion, Defendants didn’t suggest Cramton

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had been evasive during her deposition—they simply argued they hadn’t been able to cover

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all of the relevant topics during the seven-hour deposition window. (Id.) In an order issued

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on December 28, 2018, the Court denied Defendants’ request, concluding they hadn’t

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demonstrated the “good cause” necessary to justify exceeding the presumptive seven-hour

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limit on depositions. (Doc. 108.)

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Now pending before the Court is Defendants’ motion for reconsideration of the

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December 28, 2018 order. (Doc. 136.) Defendants’ main argument is that, since January

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2019, they have come into possession of four categories of information they should have

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been permitted to utilize when questioning Cramton during her deposition. Defendants

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further contend that Cramton bears the blame for the belated disclosure of this new

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information. Finally, Defendants also argue that, although they didn’t mention it in their

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initial request for more time, Cramton was evasive during her deposition and that

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evasiveness provides additional reason to grant reconsideration.

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Cramton opposes Defendants’ request. (Doc. 157.) In a nutshell, she disputes the

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suggestion that she was at fault for the late disclosures discussed in Defendants’ motion

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and argues that, in any event, Defendants were free to inquire about those topics during her

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deposition and made a tactical choice not to do so. Cramton also vigorously disputes

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Defendants’ suggestion that she was evasive during her deposition.

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The Court concludes that, although not all of Defendants’ arguments have merit,

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they have done enough to demonstrate that “good cause” exists for authorizing three

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additional hours of deposition time.

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minimum wage claim are most persuasive. In her verified MIDP response, Cramton stated

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that “Defendants did not pay Cramton for any of her employment services from December

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1, 2016 until her constructive discharge in September of 2017.

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approximately 40 hours or more per week during this time period for which she was not

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compensated.” (Doc. 136 at 17, emphasis added.) Elsewhere in the MIDP response,

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Cramton utilized this 40-hours-per-week figure when calculating her claimed damages of

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$31,376: “Unpaid wages on Cramton’s minimum wage claim in the amount of $15,688 . .

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. between January 1 and September 24, 2017, which assumes . . . 38 weeks @ 40 hours per

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week/$10 per hour . . .; double that amount per A.R.S. § 23-364, $31,376.” (Doc. 136 at

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18, emphasis added.) This was apparently the only information Defendants had on this

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issue at the time they deposed Cramton in December 2018. Yet a few months after her

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deposition, Cramton authored a declaration claiming that “[i]n 2017, I regularly worked

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60-80 hour weeks.” (Doc. 136 at 22 ¶ 25, emphasis added.) Cramton then submitted this

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declaration in support of her motion for summary judgment, which argues she is entitled

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to $54,499 on her minimum wage claim—not $31,376 as stated in her MIDP response—

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and calculates this figure using a multiplier of “at least 60 hours per week.” (Doc. 142 at

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13 & n.12.)

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Defendants’ arguments concerning Cramton’s

Cramton worked

These circumstances provide good cause to reopen Cramton’s deposition. First,

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Cramton utterly fails to explain (let alone justify) why her testimony on this key point

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diverged so dramatically from the time she verified her MIDP response to the time she

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completed her post-deposition declaration.

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statements on this topic aren’t really in conflict because the MIDP response said she

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worked 40 hours “or more” each week and 60-80 hours is more than 40 hours. (Doc. 157

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at 4.) This argument is specious. The MIDP response stated she worked “approximately

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40 hours or more.” The word “approximately” would be drained of all meaning if a party

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were allowed to say that “approximately 40 hours” is the same thing as 60-80 hours.

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Moreover, Cramton doesn’t address the fact that she also used this 40-hour figure in the

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damage-calculation section of the MIDP response. Second, the belated disclosure of this

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information was prejudicial to Defendants’ formulation of their deposition strategy.

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Defense counsel had no reason to question Cramton during her deposition about the

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number of hours she worked because this topic seemed to be straightforward and non-

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controversial (a 40-hour workweek is standard). Thus, counsel could have, for tactical

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reasons, chosen to focus on other topics during the limited seven-hour deposition block.

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The new claims contained in Cramton’s post-deposition declaration, however, are outside

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the norm and also may have the effect of substantially increasing Defendants’ exposure—

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Cramton’s own calculations suggest that her switch from a 40-hour week to a 60-hour week

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increased the value of her minimum wage claim by over $23,000 (from $31,376 to

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$54,499). Accordingly, Defendants should have an opportunity to question Cramton about

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her new claims.

In her response brief, she contends her

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Defendants’ arguments concerning the phone logs also support reopening the

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deposition. First, Cramton’s argument that “Defendants did not issue a discovery request

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for those records and waited until 2 days before Ms. Cramton’s deposition to request them”

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(Doc. 157 at 5) is unpersuasive. Defendants’ RFP Nos. 14 and 17 requested all “documents

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that relate to any communication” between Cramton and Defendants’ employees—a

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formulation that would encompass call logs documenting phone calls between Cramton

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and Farrell. Additionally, there’s a strong argument these call logs should have been

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produced pursuant to the MIDP without the need for a discovery request. Thus, Defendants

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can’t be faulted for failing to obtain the call logs before they deposed Cramton in December

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2018. Second, this is another instance where Defendants can persuasively show their

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deposition strategy would have been different had the call logs been produced before the

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deposition. The substance of the Cramton-Farrell calls is potentially important in this case

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and Defendants should have been able to depose Crampton about the calls with the call

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logs in hand.

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Defendants’ arguments concerning the Mavros deposition are less compelling.

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Defendants have long known that the substance of the Cramton-Mavros call was a

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potentially important issue in this case. Indeed, Cramton provided an interrogatory

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response in September 2018 recounting her version of this conversation. (Doc. 157 at 4.)

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Thus, Defendants were free to question Cramton about this conversation during her

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deposition in December 2018. To be sure, defense counsel’s strategy may have been

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different had counsel already deposed Mavros (whose deposition didn’t occur until January

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2019), because Mavros’s testimony about the phone call differed in potentially significant

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respects from Cramton’s interrogatory response describing the phone call. However,

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Cramton isn’t to blame for the late timing of Mavros’s deposition. Accordingly, if this

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were the only basis on which Defendants were seeking reconsideration, it’s unlikely the

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Court would find that it qualifies as “good cause” for reopening Cramton’s deposition. It

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would be chaos if a party could seek to re-depose all of the witnesses who’ve already been

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deposed in a case whenever a later deponent provides new, potentially helpful testimony.

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Defendants’ arguments concerning the iPhone declaration are unavailing for similar

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reasons. Defendants have not persuaded the Court that Cramton was at fault for the

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allegedly late disclosure of information on this topic because they haven’t identified any

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discovery requests that encompassed it.

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Finally, Defendants’ arguments about Cramton’s alleged evasiveness during the

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original deposition also miss the mark. It must be remembered that Defendants are seeking

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reconsideration of the denial of their earlier request for additional deposition time. Motions

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for reconsideration are generally disfavored and should be denied “absent a showing of

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manifest error or a showing of new facts or legal authority that could not have been brought

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to [the Court’s] attention earlier with reasonable diligence.” LRCiv. 7.2(g). Put another

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way, a motion for reconsideration “may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised earlier in the litigation.”

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Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Here, Defendants

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acknowledge they could have raised Cramton’s alleged evasiveness in their original request

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for more time but “mistakenly decided not to raise this argument in favor of arguments

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based on the size and complexity of the case.” (Doc. 136 at 3.) This concession precludes

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any request for reconsideration.

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Accordingly, IT IS ORDERED that:

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(1)

Defendants’ motion for reconsideration (Doc. 136) is granted;

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(2)

Defendants are authorized to depose Cramton for an additional three hours,

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by May 31, 2019; and
(3)

The additional deposition need not be limited to the topics of the minimum

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wage claim and the Cramton-Farrell calls and may also encompass the topics of the

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Cramton-Mavros call and the iPhone/iCloud issues.

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Dated this 30th day of April, 2019.

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