Mbaye et al v. RCI Hospitality Holdings, Inc. et al

Filing 96

ORDER granting in part and denying in part 93 Letter Motion to Compel. Application GRANTED IN PART AND DENIED IN PART, without prejudice to renewal. The Court GRANTS Plaintiffs' motion to compel Defendants to produce Mustafa Thiam/Diop for a deposition. Plaintiff's have submitted evidence demonstrating that Mr. Thiam/Diop is an agent of Defendants who maintained a close relationship with Defendant. "The evidence of [Mr. Thiam's/Diop's] long, intimate relati onship and shared interests with [Defendants] is more than sufficient to preliminarily conclude that [Mr. Thiam/Diop] is a managing agent of Plaintiff's. Accordingly, Plaintiff's shall produce [Mr. Thiam/Diop] as a managing agent witne ss at this time, with the understanding that a nal determination as to whether his testimony is binding on [Defendants] shall be deferred while discovery proceeds." Schindler Elevator Corp. v. Otis Elevator Co., No. 06 Civ. 5377, 2007 WL 1771509, at *8 (S.D.N.Y. June 18, 2007) (cleaned up). Mr. Thiam's/Diop's "deposition testimony itself may well provide the best evidence of his status." Id. (cleaned up). The Court DENIES without prejudice to renewal Plai ntiffs' motion to compel Defendants "to provide fulsome responses, without objections to Plaintiffs' Interrogatories 3, 4, and 5." Defendants represent that Plaintiff's have not met their obligation to meet and confer on any perceived deciencies, see ECF No. 95, and Plaintiff's have provided no evidence that they have, despite the Court's clear statement that Plaintiff's should attach to any renewed motion any notices of deciency or other documentation that they have met and conferred with Defendants. See ECF No. 88. Plaintiff's must meet and confer with Defendants prior to raising any future discovery dispute with this Court, as is required by the Courts' Individual Rule 4(k). Failure to comply with the Court's Individual Rules may result in sanctions. SO ORDERED. The Clerk of Court is respectfully requested to terminate ECF No. 93.. (Signed by Judge Dale E. Ho on 6/3/2024) (ks)

LEVIN-EPSTEIN & ASSOCIATES, P.C.
____________________________________________________________________________________________
60 East 42nd Street • Suite 4700 • New York, New York 10165
T: 212.792.0048 • E: [e-mail]

May 23, 2024
VIA ECF
The Honorable Dale E. Ho, U.S.D.J.
U.S. District Court, Southern District of New York
40 Foley Square
New York, NY 10007
Re:

Mbaye et al v. RCI Hospitality Holdings, Inc. et al
Case No.: 23-cv-02967

Dear Honorable Judge Ho:
Pursuant to Your Honor’s Individual Motion Practice Rule 2(e), and the directives
contained in Your Honor’s May 17, 2024 Order [Dckt. No. 88], the instant letter motion
respectfully serves to compel Defendants to produce Mostapha Diop a/k/a Modou Thiam a/k/a
Mostapha Thiam (“Mr. Thiam”) for his deposition; and (ii) to provide fulsome responses, without
objections, to Plaintiffs’ Interrogatories Nos. 3, 4 and 5.
I.

Mr. Thiam is a “Managing Agent” Under Fed.R.Civ.P. 30(b)(1)

“The question of whether a particular person is a ‘managing agent’ is to be answered
pragmatically on an ad hoc basis…Whether a proposed deponent falls into a particular category
of employees or agents is therefore less relevant than the individual's specific functions and
authority.” Cambridge Capital LLC v. Ruby Has LLC, 2022 WL 889143, at *1 (S.D.N.Y. 2022)
(citations omitted). Accordingly, independent contractors have been found to be “managing
agents” under Fed.R.Civ.P. 30(b)(1). See, e.g., Schindler El. Corp. v Otis El. Co., 2007 WL
1771509 *8 (S.D.N.Y. 2007) (independent contractor); United States v. Afram Lines (USA), Ltd.,
159 F.R.D. 408, 413 (S.D.N.Y.1994) (same). With these principles in mind, courts in this District
have generally considered five (5) factors in determining whether an individual is a “managing
agent”:
(1) whether the individual is invested with general powers allowing him to exercise
judgment and discretion in corporate matters; (2) whether the individual can be
relied upon to give testimony, at his employer's request, in response to the demands
of the examining party; (3) whether any person or persons are employed by the
corporate employer in positions of higher authority than the individual designated
in the area regarding which the information is sought by the examination; (4) the
general responsibilities of the individual respecting the matters involved in the
litigation; and (5) whether the individual can be expected to identify with the
interests of the corporation.
See JSC Foreign Economic Ass'n Technostroyexport v. Int’l Dev. and Trade Servs., Inc.,
220 F.R.D. 235, 237 (S.D.N.Y.2004). The examining party carries a “modest” burden to establish
the status of the witness, Cambridge Capital LLC, 2022 WL 889143 at *1, and all doubts are to be
resolved in favor of the examining party. Afram Lines, 159 F.R.D. at 414. The notion of a modest
burden makes the most sense in respect of current employees and “when the only pretrial
consequence of determining the deponent's status is whether he will be served with a subpoena
and tendered a witness fee.” Id. However, a former employee may be deposed under Fed.R.Civ.P.
30(b)(1) where it is shown that the individual's interests were still aligned with those of the
1

corporate party and the individual still maintained a close relationship with the corporate party.
Ginsberg v. Govt. Properties Tr. Inc., 2008 WL 558039, at *1 (S.D.N.Y. 2008). The witness's
deposition testimony itself may ultimately provide the best evidence of their status. See Afram
Lines, 159 F.R.D. at 413-14 (stating that it is proper to defer final determination of managing agent
status until trial since at that time the examining party will have had full discovery regarding that
status).
A. Factor 1: Mr. Thiam is Invested with General Powers Allowing him to Exercise
Judgment and Discretion Over Defendants’ Bathroom Attendants
In at least five (5) Court filings1, and in three (3) responses to Plaintiffs’ interrogatories 2,
Defendants aver that, for decades, prior to August 2023, their bathroom attendants were not
employees, but rather, independent contractors, “brought in”, “scheduled, and assigned to work”
at various restrooms in Defendants’ Nightclubs by Mr. Thiam. Defendants have also produced
dozens of text messages, illustrating Mr. Thiam’s authority over bathroom attendants. 3 Defendants
also aver in their April 15, 2024 Responses and Objections to Plaintiffs’ Interrogatories, at No. 11
(annexed hereto as Exhibit “D”), that Mr. Thiam is currently an employee, responsible for
scheduling bathroom attendants. Thus, there is ample evidence that Mr. Thiam has had – and
continues to have –“significant responsibility” over Defendants’ bathroom attendants. Schindler
El. Corp., 2007 WL 1771509 *8.
B. Factor 2: Defendants’ Counsel Testified That They Have Control over Mr. Thiam
In multiple Court filings [see, e.g., Dckt. Nos. 68, 73, 74, 80], the undersigned expressed
concerns over Defendants’ efforts in locating the identities of prospective FLSA Collective opt-in
employees. When presented with the issue during the February 15, 2024 telephonic conference
before Your Honor [Dckt. No. 70], Defendants’ counsel responded as follows:
The Court:

But [Mr. Thiam] is an agent of your client at this point?

Mr. Kimmel: He’s an agent of my client. To the extent my client has control over
their employees, we have control over [Mr. Thiam]…
The Court:

Okay…[T]o the extent that Plaintiff[s] [have] propounded discovery
requests on your client, you’re not taking the position that those
discovery requests don’t apply to [Mr. Thiam]?

Mr. Kimmel: No, Your Honor.
1

To wit: (i) Defendants’ October 4, 2023 Answer with Affirmative Defenses [Dckt. No. 41]; (ii) Defendants’ August
21, 2023 memorandum of law in opposition to Plaintiffs’ motion for a preliminary injunction [Dckt. No. 23]; (iii) the
August 21, 2023 declaration of Shaun Kevlin, signed under penalty of perjury under 28 U.S.C. § 1746 [Dckt. No. 24];
(iv) Defendants’ position statement in the October 19, 2023 joint letter [Dckt. No. 43]; and (v) Defendants’ November
29, 2023 Answer with Affirmative Defenses [Dckt. No. 51].
2
To wit, Defendants’: (i) January 19, 2024 Responses and Objections at No. 1 (annexed hereto as Exhibit “A”); (ii)
March 8, 2024 Responses and Objections at No. 1 (annexed hereto as Exhibit “B”); and (iii) March 15, 2024 Responses
and Objections at No. 2 (annexed hereto as Exhibit “C”).
3
See DEFS 238-261; DEFS 294-312 (annexed hereto as Exhibit “E”).
2

[See Ex. F at 23:4-15; see also id. at 8:13-20; 15:22-25; 21-22:1-25] (emphasis added).
Defendants’ counsel subsequently purported to have complied with their discovery obligations
under Fed.R.Civ.P. 33 and 34 in producing responsive discovery in Mr. Thiam’s possession, in
response to Plaintiffs’ discovery requests [see, e.g., Dckt. No. 82 at p. 2, ¶ 1]. Defendants counsel
subsequently willingly scheduled Mr. Thiam’s deposition, over the course of several months –
without any objections. [See Dckt. No. 83 at § I].
Thus, it is more than likely that Mr. Thiam “would, if [Defendants] required to produce
him, appear for a deposition.” Cambridge Capital LLC, 2022 WL 889143 at *1 (citations omitted).
See also Afram Lines at 415 (“an agent's history of cooperating with a party in discovery may be
probative of the party's ability to rely on the agent to testify.”)
C. Factors 3 and 4: Mr. Thiam was Purportedly Vested with Exclusive Authority
over Defendants’ Bathroom Attendants
Defendants purport that, prior to August 2023, “…Defendants had absolutely no involvement
in the setting of [bathroom attendants’] schedules or directing their activities in any way.” [See Kevlin
Decl. at ¶ 4; see also Dckt. No. 23 at *6]. As set forth more fully in § I(A), supra, Mr. Thiam was
vested with this exclusive authority, pursuant to some nebulous “arrangement” with Defendants. [Dckt.
No. 24 at ¶ 3]. The undersigned deposed three (3) of Defendants’ general managers on May 14, 2024,
May 15, 2024 and May 16, 2024.4 None of these witnesses testified substantively as to their
relationships with any of Defendants’ bathroom attendants. Instead, they testified that Mr. Thiam was
the sole responsible party. Thus, Mr. Thiam appears to be the only deponent, capable of substantively
testifying as to Defendants’ bathroom attendants’ employment, prior to August 2023.
D. Factor 5: Mr. Thiam can be Expected to Identify with Defendants’ Interests
It is apparent from the evidence that Mr. Thiam has had (and continues to have) significant
responsibilities and stature within Defendants’ organization. [See Exs. A – D]. In response, there
is no evidence to suggest that Mr. Thaim’s interests would be adverse to those of Defendants. See
Schindler El. Corp., 2007 WL 1771509 *8 (“Courts have accorded managing agent status to
individuals who…retained some role in the corporation or at least maintained interests consonant
with rather than adverse to its interests”) (citation omitted).
The evidence of Mr. Thiam’s decades long, intimate relationship and shared interests with
Defendants’ is more than sufficient to preliminarily conclude that Mr. Thiam is a managing agent
of Defendants.
II.

Plaintiffs are Entitled to Discovery Concerning Defendants’ Illegal
Misclassification Policy Across All of their Nightclubs

In each of Plaintiffs’ 30(b)(6) notices of deposition, propounded on November 27, 2023,
Plaintiffs identified that they would be seeking to illicit testimony regarding:

4

To wit: Thomas Campbell, Charles Castro, and Shaun Kevlin.
3

“The total number of bathroom attendants who worked at any business owned by
Defendant…including their names, schedules, rates of pay, job descriptions, and
managers’ identity/identities.”
[See Ex. G at p. 3, No. 18]. The undersigned, unsuccessfully, sought to illicit this information from
Defendants’ witnesses, during the May 14, 2024, May 15, 2024 and May 16, 2024 depositions.5
Plaintiffs’ Interrogatories Nos. 3, 4 and 5 sought this same information. [See Ex. A].
On May 10, 2024 at approximately 1:20 p.m., after the conclusion of Plaintiff Mbaye’s
deposition, the undersigned met-and-conferred with Defendants’ counsel, Mohammad Adil Yaqoob –
in-person. Mr. Yaqoob unequivocally stated that they would not be producing any discovery, regarding
any bathroom attendants who worked at any nightclubs, outside of New York.
Plaintiffs are specifically seeking to compel Defendants to provide fulsome responses,
without objections, to Plaintiffs’ Interrogatories Nos. 3, 4 and 5.6 This information is critical in
developing the factual predicate of Plaintiffs’ anticipated motion for a nationwide collective and/or
class action. See, e.g., Zambrano v. Strategic Delivery Solutions, LLC, 2022 WL 3369597
(S.D.N.Y. 2015) (conditionally certifying nationwide collective action); Meo v. Lane Bryant, Inc.,
2019 WL 5157024 (E.D.N.Y. 2019) (same); Mason v. Lumber Liquidators, Inc., 2019 WL
2088609 (E.D.N.Y. 2019) (same).
We thank the Court for its attention to this matter, and are available at the Court’s
convenience to answer any questions related to the foregoing.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
By:

/s/ Jason Mizrahi
Jason Mizrahi
60 East 42nd Street, Suite 4747
New York, NY 10170
Tel. No.: [phone]
Email: [e-mail]
Attorneys for Plaintiffs

VIA ECF: All Counsel

Encl.

5

To wit: Thomas Campbell, Charles Castro, and Shaun Kevlin.
Plaintiffs had sought to obtain this information by deposing Defendant Eric Langan – or another representative with
knowledge of Defendants’ classification policies vis-à-vis bathroom attendants. In the interests of judicial economy,
Plaintiffs are willing to obtain this information via written discovery.
4
6

Applica�on GRANTED IN PART AND DENIED IN PART, without prejudice to renewal.
The Court GRANTS Plain�ffs’ mo�on to compel Defendants to produce Mustafa Thiam/Diop for a
deposi�on. Plain�ffs have submited evidence demonstra�ng that Mr. Thiam/Diop is an agent of
Defendants who maintained a close rela�onship with Defendant. “The evidence of [Mr. Thiam’s/Diop’s]
long, in�mate rela�onship and shared interests with [Defendants] is more than sufficient to preliminarily
conclude that [Mr. Thiam/Diop] is a managing agent of Plain�ffs. Accordingly, Plain�ffs shall produce
[Mr. Thiam/Diop] as a managing agent witness at this �me, with the understanding that a final
determina�on as to whether his tes�mony is binding on [Defendants] shall be deferred while discovery
proceeds.” Schindler Elevator Corp. v. Otis Elevator Co., No. 06 Civ. 5377, 2007 WL 1771509, at *8
(S.D.N.Y. June 18, 2007) (cleaned up). Mr. Thiam’s/Diop’s “deposi�on tes�mony itself may well provide
the best evidence of his status.” Id. (cleaned up).
The Court DENIES without prejudice to renewal Plain�ffs’ mo�on to compel Defendants “to provide
fulsome responses, without objec�ons to Plain�ffs’ Interrogatories 3, 4, and 5.” Defendants represent
that Plain�ffs have not met their obliga�on to meet and confer on any perceived deficiencies, see ECF
No. 95, and Plain�ffs have provided no evidence that they have, despite the Court’s clear statement that
Plain�ffs should atach to any renewed mo�on any no�ces of deficiency or other documenta�on that
they have met and conferred with Defendants. See ECF No. 88. Plain�ffs must meet and confer with
Defendants prior to raising any future discovery dispute with this Court, as is required by the Courts’
Individual Rule 4(k). Failure to comply with the Court’s Individual Rules may result in sanc�ons.
SO ORDERED.
The Clerk of Court is respec�ully requested to terminate ECF No. 93.

Dale E. Ho
United States District Judge
New York, New York,
Dated: June 3, 2024