Solis v. The Taco Maker, Inc. et al
Filing
202
ORDER granting in part and denying in part Defendants' 172 Motion to Extend Discovery. The Parties are hereby ORDERED to set the deposition of Carlos Budet at a location in Georgia within 20 days of this Order, and the discovery period is ext ended for the limited purpose of conducting said deposition. Defendants' Motion to Strike 177 and Motion for Sanctions 168 are DENIED. Plaintiff's Cross Motion for Sanctions 184 is also DENIED. Signed by Judge Richard W. Story on 4/24/2013. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THE TACO MAKER, INC.,
Third-Party Plaintiff,
v.
BUSH, SLIPAKOFF, & SCHUH,
LLP; and SHANE STOGNER,
ESQ.,
Third-Party Defendants.
:
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
1:09-CV-3293-RWS
ORDER
This case is before the Court on Defendants’ Motion for Sanctions [168],
Defendants’ Motion for Extension of Time to Complete Discovery [172],
Defendants’ Motion to Strike [177], and Plaintiff’s Cross Motion for Sanctions
[184]. After reviewing the record, the Court enters the following Order.
Discussion
I.
Defendants’ Motion to Strike [177]
Defendants move to strike the Affidavit of Carlos Budet, paragraphs 6
and 8 of the Affidavit of Ricardo Rivera, and part of Plaintiff’s deposition
testimony under Federal Rules of Civil Procedure (“Rules”) 12(f) and 56(h).
AO 72A
(Rev.8/82)
(See generally Def.s’ Motion to Strike, Dkt. [177].) Plaintiff argues that Rule
12(f) is inapplicable here because the affidavits and deposition are not
“pleadings.” (Pl.’s Resp. to Def.s’ Motion to Strike, Dkt. [187] at 3.) Further,
Plaintiff argues, Defendants have not shown bad faith or undue delay in
Plaintiff’s submission of the affidavits and deposition. (Id. at 4.) The Court
agrees with Plaintiff.
Rule 12(f) states that a court “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter. . . .”
Generally, “[a]n affidavit is not a pleading subject to a motion to strike.”
Argonaut Midwest Ins. Co. v. McNeilus Truck and Mfg., Inc., No. 1:11-CV3495-TWT, 2013 WL 489141, at *1 (N.D. Ga. Feb. 8, 2013); see also Southard
v. State Farm Fire and Cas. Co., No. 4:11-CV-243, 2013 WL 209224, at *7
(S.D. Ga. Jan. 17, 2013) (“[A] motion to strike is not the proper procedural
vehicle to challenge affidavits. Affidavits are not pleadings.”) (internal
citations omitted).
To the extent Defendants’ motion raises evidentiary objections to
Plaintiff’s submissions, “[r]ather than striking a document or a portion thereof,
it is usually more appropriate to consider a party’s objections to affidavits
2
AO 72A
(Rev.8/82)
which are filed in support of a motion for summary judgment when ruling on
the merits of a motion for summary judgment.” Haynes v. Twin Cedars Youth
and Family Servs., No. 5:10-CV-321 (CAR), 2012 WL 895699, at *5 (M.D. Ga.
Mar. 15, 2012). When addressing the merits of a motion for summary
judgment, “a court may strike or disregard the improper portions of an affidavit
submitted in connection with a motion for summary judgment, and consider the
remainder of the testimony or statement.” Id. at *7 (citing Lee v. Nat’l Life
Assurance Co. of Canada, 632 F.2d 524, 529 (5th Cir. 1980)1).
Rather than strike the contested material, the Court may exercise its
discretion and disregard any improper testimony when it considers the merits of
Defendants’ Motion for Summary Judgment. Further, the Court agrees that
there is no evidence of bad faith or undue delay in Plaintiff’s filing of these
submissions. Accordingly, Defendants’ Motion to Strike is DENIED.
II.
Defendants’ Motion to Extend Discovery [172]
Defendants move to extend discovery so that they may depose Carlos
Budet, The Taco Maker’s CEO, and explore new allegations regarding damages
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
issued prior to October 1, 1981.
3
AO 72A
(Rev.8/82)
raised by Plaintiff in its response to Defendants’ summary judgment motion.
(See generally Def.s’ Motion to Extend Discovery, Dkt. [172].) A party’s
corporate officers are subject to deposition by notice under Federal Rule of
Civil Procedure (“Rule”) 30(b). See Telecomm Technical Servs., Inc. v.
Siemens Rolm Commc’ns, Inc., No. 1:95-CV-649WB, 1997 WL 34639048, at
*1 (N.D. Ga. Sept. 15, 1997); Faro Techs., Inc. v. Romer, Inc., No. 6:06-CV13-Orl-19KRS, 2007 WL 496615, at * 3 (M.D. Fla. Feb. 12, 2007) (“[Rule]
30(b)(1) allows a party to notice the deposition of a particular officer, director,
or managing director of a party.”). However, courts may limit depositions of
senior management and “high-level decisionmakers who are removed from the
daily subjects of litigation” if they lack personal knowledge of the facts at issue.
Faro Techs., 2007 WL 496615, at *4.
The Parties do not appear to dispute that Budet is the CEO of The Taco
Maker. (See Pl.’s Resp. to Def.s’ Statement of Facts, Dkt. [175] ¶ 3.) Further,
it is clear that Budet has direct personal knowledge of facts at issue. In fact,
Plaintiff relies heavily on Budet’s Affidavit in its Response to Defendants’
Motion for Summary Judgment [174] and its Response to Defendants’
4
AO 72A
(Rev.8/82)
Statement of Facts [175]. Therefore, the Court finds that Defendants are
entitled to depose Budet upon notice.
This Order serves as notice of Defendants’ intent to depose Budet. The
Parties are ORDERED to set the deposition for a date, time, and location
mutually convenient to the witness, the Parties, and counsel, provided that the
deposition occurs in Georgia within 20 days of this Order. If Plaintiff fails to
comply with this Order, Budet will be prohibited from offering any testimony in
this matter.
Regarding Defendants’ request to engage in further discovery on the
issue of damages, the request is denied. Plaintiff is not permitted to amend its
claims through its brief opposing summary judgment. See Davis v. Cothern,
482 Fed. App’x 495, 497 (11th Cir. 2012) (citing Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1315 (11th Cir. 2004)). Thus, any new allegations
regarding damages not raised in Plaintiff’s Third-Party Claim against
Defendants [8] will be disregarded by the Court in its consideration of
Defendants’ Motion for Summary Judgment.
5
AO 72A
(Rev.8/82)
Accordingly, Defendants’ Motion to Extend Discovery is GRANTED in
part and DENIED in part. The discovery period is reopened for the limited
purpose of allowing Defendants to depose Budet.
III.
Defendants’ Motion for Sanctions [168]
Defendants move for sanctions based on Budet’s “repeated failures to
appear for his properly noticed deposition or to provide available dates for his
deposition.” (Def.s’ Motion for Sanctions, Dkt. [168] at 1.) To sanction
Budet’s failure to appear, Defendants ask the Court to prohibit Budet from
offering any testimony in connection with this case and order Budet and his
counsel to pay reasonable expenses. (Id. at 8, 9.) The Court has determined
that Defendants are entitled to depose Budet. If he fails to submit to deposition,
his testimony in this case will be disregarded. (See Part II, supra.) Therefore,
to some extent, Defendants’ Motion for Sanctions is moot.
In response to Defendants’ motion, Plaintiff contends that Defendants’
notice to depose Budet was deficient and that Defendants failed to give
Plaintiff’s counsel adequate time to prepare for a deposition. (Pl.’s Resp. to
Def.s’ Motion for Sanctions, Dkt. [183] at 1-5.) Plaintiff describes its attempts
to communicate with Defendants regarding Budet’s deposition and various
6
AO 72A
(Rev.8/82)
scheduling challenges with Plaintiff’s counsel leading up to the proposed
deposition date. (Id. at 3-5.) The Court finds that there is some question as to
whether Plaintiff and Budet were properly noticed regarding the deposition2 and
therefore, declines to issue sanctions against Plaintiff. Accordingly,
Defendants’ Motion for Sanctions is DENIED.
IV.
Plaintiff’s Cross Motion for Sanctions [184]
Plaintiff has filed a cross motion for sanctions against Defendants under
28 U.S.C. § 1927 and Rule 11. Plaintiff argues that Defendants’ Motion for
Sanctions is frivolous and vexatious. The Court disagrees. The Court has
found that Defendants are entitled to depose Budet and therefore, despite any
potential deficiencies in Defendants’ notice of Budet’s deposition, Defendants’
attempt to sanction Plaintiff for Budet’s failure to appear for a deposition is not
frivolous or vexatious. Therefore, the Court declines to issue sanctions against
Defendants and Plaintiff’s Cross Motion for Sanctions is DENIED.
2
To try to ensure Budet’s appearance at the deposition, Defendants secured a
subpoena in Puerto Rico. Plaintiff has filed a Motion to Quash Defendants’ subpoena
of Budet, which is still pending in the District of Puerto Rico. The Court has found
that Defendants are entitled to depose Budet, as CEO of The Taco Maker, on notice,
but the proceeding in Puerto Rico further demonstrates that there are outstanding
questions regarding Defendants’ method of noticing Budet’s deposition.
7
AO 72A
(Rev.8/82)
Conclusion
Based on the foregoing, Defendants’ Motion to Extend Discovery [172]
is GRANTED in part and DENIED in part. The Parties are hereby
ORDERED to set the deposition of Carlos Budet at a location in Georgia
within 20 days of this Order, and the discovery period is extended for the
limited purpose of conducting said deposition. Defendants’ Motion to Strike
[177] and Motion for Sanctions [168] are DENIED. Plaintiff’s Cross Motion
for Sanctions [184] is also DENIED.
SO ORDERED, this 24th day of April, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
8
AO 72A
(Rev.8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?