Dollar Tree Stores, Inc. v. Toyama Partners, LLC et al

Filing 249

ORDER granting in part and denying in part #219 Defendants' motion to re-depose Plaintiff. Signed by Judge Nandor J. Vadas on June 30, 2011. (njvlc2, COURT STAFF) (Filed on 6/30/2011)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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United States District Court
For the Northern District of California

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No. CV 10-0325 SI (NJV)

DOLLAR TREE STORES, INC.,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO RE-DEPOSE PLAINTIFF

Plaintiff,
v.

(Docket No. 219)

TOYAMA PARTNERS LLC, et al.,
Defendants.

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The district court has referred the parties’ discovery disputes to this Court for determination.

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Doc. No. 202. On June 7, 2011, Defendants Toyama Partners, LLC, Peter Pau, Susana Pau, Sand

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Hill Property Management Co., and Capella-Mowry, LLC (“Capella”) moved to re-depose Plaintiff

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Dollar Tree Stores, Inc. pursuant to Rule 30(a)(2) of the Federal Rules of Civil Procedure. Doc. No.

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219. Plaintiff opposes Defendants’ motion. Doc. No. 231. Pursuant to Local Rule 7-1(b),

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Defendants’ motion is taken under submission without oral argument.
DISCUSSION

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On March 14 and 15, 2011, Defendant Toyama deposed Plaintiff’s corporate designee. At

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this time, Toyama was the only defendant in the action.1 On March 22, 2011, Plaintiff filed its

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Second Amended Complaint adding Defendants Peter Pau, Susana Pau, and Sand Hill Property

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Management and alleging that the new defendants were alter egos of Defendant Toyama. Doc. No.

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160. Pursuant to its stipulation with Defendant Toyama, on April 5, 2011, Plaintiff filed its Third

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On December 1, 2010, the court granted Comerica Bank’s motion to dismiss without leave
to amend. Doc. No. 112.

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Amended Complaint alleging that Defendant Capella is liable as a successor to Defendant Toyama

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because Defendant Capella acquired the Mowry Crossing Shopping Center from Defendant Toyama

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in February 2011. Doc. Nos. 161-163. The court recently extended the non-expert fact discovery to

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August 12, 2011. Doc. No. 213.

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Defendants now seek to re-depose Plaintiff’s corporate designee because Plaintiff has twice
amended its complaint to add new defendants and new claims since Plaintiff’s March 2011

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deposition. Defendants request a deposition for up to four (4) days. Defendants also argue that

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Plaintiff previously agreed to a second deposition after Plaintiff amended its complaint. Plaintiff

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does not oppose re-deposing its corporate designee regarding its alter ego and successor liability

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United States District Court
For the Northern District of California

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claims, but argues that Defendants should not be permitted to re-depose Plaintiff on liability and

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damages.

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“A party must obtain leave of court, and the court must grant leave to the extent consistent

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with Rule 26(b)(2)” if “the deponent has already been deposed.” Fed. R. Civ. P. 30(a)(2)(A)(ii).

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“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”

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Fed. R. Civ. P. 30(d)(1). The rules clarify that “[t]he court must allow additional time consistent

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with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or

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any other circumstance impedes or delays the examination.” Id. The court may alter the limit on the

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number of depositions and the length of depositions provided under Rule 30. Fed. R. Civ. P.

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26(b)(2)(A). The court considers whether the discovery sought is cumulative or duplicative, or can

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better be obtained from some another source; whether the party seeking discovery has had ample

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opportunity to obtain the information by discovery in this action; and whether the burden or expense

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of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C).

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Here, good cause exists to permit Defendants to re-depose Plaintiff because Plaintiff has

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added new defendants and new claims to its complaint since the deposition of Plaintiff’s corporate

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designee. The factors weigh in favor of permitting a second deposition: the discovery sought is not

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cumulative or duplicative; it cannot be obtained from another source; Defendants have not had the

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opportunity to otherwise depose Plaintiff regarding its new claims; and the benefits of the proposed

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discovery outweighs the burden or expense to Plaintiff. In addition, Plaintiff does not oppose
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re-deposing its corporate designee regarding Plaintiff’s alter ego and successor liability claims.

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While Defendants are correct that Plaintiff has added four new defendants since its deposition, this

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does not translate into justifying four (4) additional days of deposition time, especially given that

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defense counsel represents all remaining Defendants.

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CONCLUSION

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Having carefully considered the papers submitted, and for good cause shown, the Court

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grants in part and denies in part Defendants’ motion. Defendants may re-depose Plaintiff for two

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(2) days. Defendants may examine Plaintiff regarding its new claims, but are prohibited from

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revisiting topics already examined during the first deposition as to Defendant Toyama. Defendants

United States District Court
For the Northern District of California

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are permitted to examine these topics as the topics relate to the other Defendants.

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IT IS SO ORDERED.

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Dated: June 30, 2011
NANDOR J. VADAS
United States Magistrate Judge

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