Creech vs Holiday CVS, LLC, et al

Filing 44

ORDER denying 32 Motion for Sanctions. Signed by Magistrate Judge Docia L Dalby on October 25, 2012. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DAWN CREECH, on her own behalf
and on behalf of those similarly
situated

CIVIL ACTION
NUMBER 11-46-BAJ-DLD

VERSUS
HOLIDAY CVS, L.L.C, et al
ORDER
This matter is before the court on a referral from the district court of plaintiffs’ motion
for sanctions. (rec.doc. 32) The motion is opposed.
Background
Plaintiffs filed suit under the Fair Labor Standards Act (“FLSA”) for recovery of
overtime compensation, liquidated damages, and attorneys’ fees and costs on behalf of
every shift supervisor nationwide who worked for any of the defendants within the past
three years.

(rec.doc. 1) Plaintiffs filed a motion to certify class (rec.doc. 23) and

defendants filed a motion to dismiss and/or strike plaintiffs’ complaint (13), and the court
scheduled a hearing on both motions on September 18, 2012. The motions currently are
pending.
The Motion for Sanctions
On January 23, 2012, plaintiffs noticed the Rule 30(b)(6) deposition duces tecum of
defendants for February 6, 2012, in Baton Rouge, Louisiana, covering 23 topics. (rec.doc.
32-3, pgs 2-5) On January 26, 2012, defendants responded via email, objecting to the
unilaterally scheduled deposition, and advised that they “would not produce a corporate
representative at this time and place.” Defendants stated that subjecting defendants to

deposition before a ruling is issued on the outstanding motions would cause defendants
“to suffer undue burden and expense” as some of the topics could be “completely
immaterial to the resolution of this case,” depending on the outcome of the ruling.
Defendants also objected to the unilateral selection of Baton Rouge, Louisiana, for the
depositions, as the parties had discussed holding depositions in a mutually convenient
location. (rec.doc. 35-2, pgs 2-3) On February 3, 2012, defendants served formal
objections to the notice of Rule 30(b)(6) deposition, again stating that they would not be
producing a corporate representative on February 6, 2012. Plaintiffs failed to respond to
either of defendants’ communications. On August 16, 2012, plaintiffs filed the instant
motion, seeking sanctions in the form of their attorneys’ fees and costs because plaintiffs
appeared for the February 6, 2012, deposition.
Governing Law and Analysis
At the outset, the court notes that there are many issues with plaintiffs' Rule 30(b)(6)
notice of deposition duces tecum. First, the deposition was unilaterally noticed to occur in
plaintiffs’ counsel’s office in Baton Rouge, Louisiana. While plaintiffs generally have to
appear for deposition in the district where the suit was filed, defendants may have their
depositions taken where they work or live.1 In this case, defendants stated that the parties
discussed holding depositions in mutually convenient locations, and plaintiffs do not dispute
that Baton Rouge, Louisiana, was not a mutually convenient location. Thus, unless the
parties agree to hold defendants’ depositions in Baton Rouge, Louisiana, defendants are
entitled to have their depositions taken where they are located.

1
See, e.g. Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 387 (S.D.N.Y. 2011);
Rapoca Energy Company, L.P. v. Amci Export Corp. 199 F.R.D. 191, 193 (W.D. Va. 2001).

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Second, it is clear from the motion and response that the date of the deposition was
not agreed upon by the parties; defendants lodged a formal objection to the deposition; and
plaintiffs failed to respond to the objection until more than six months had passed. Plaintiffs
have offered no explanation for the delay in filing the motion for sanctions. Third, Rule
30(b)(6) requires that the notice describe with “reasonable particularity the matters for
examination,” and a review of the notice indicates that some of the topics are not described
with any particularity, but instead are overbroad categories of information.
Third, while the deposition notice is styled as one for documents (“duces tecum”),
plaintiffs fail to identify what documents, if any, were to be produced at the deposition. Rule
30(b)(2) requires that the materials designated for production must be listed in the notice
or in an attachment, and plaintiffs failed to list the documents either in the notice or in an
attachment.
Due to plaintiffs' failure to notice the Rule 30(b)(6) properly, the motion will be
denied.
Accordingly,
IT IS ORDERED that plaintiffs' motion for sanctions (rec.doc. 32) is DENIED.
Signed in Baton Rouge, Louisiana, on October 25, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY

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