Henderson v. Rite Aid Corporation of New York Inc., et al
ORDER granting 26 Motion to Quash. Signed by Hon. H. Kenneth Schroeder Jr. on 7/10/2017. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RITE AID OF NEW YORK, INC.,
RITE AID CORPORATION,
TIM MATTHEWS, and
DECISION AND ORDER
This case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #13.
Plaintiff commenced this action seeking damages for a violation of the
Age Discrimination in Employment Act of 1967, as codified, 29 U.S.C. § 621 et seq.
(”ADEA”), and New York Executive Law § 290 et seq. (“Human Rights Law”), alleging
that she was wrongfully terminated from her employment with defendant Rite Aid of
New York, Inc. Dkt. #1. Rite Aid Corporation is named in the complaint as the “parent
corporation” of Rite Aid of New York, Inc. Dkt. #1.
Currently before the Court is a motion to quash plaintiff’s Notice of
Deposition of Rite Aid Corporation, to compel plaintiff to identify with particularity the
topics upon which Rite Aid of New York, Inc., will be deposed, and to award defendants
reasonable attorney’s fees. Dkt. #26.
On January 25, 2017, plaintiff served Notices of Deposition on Rite Aid
Corporation and Rite Aid of New York, Inc., seeking to depose a representative “with
respect to all matters relevant to the subject matter involved in this action.” Dkt. #26-2,
pp.26 & 29.
By letter dated February 28, 2017, defense counsel asked plaintiff to
withdraw the Notice of Deposition to Rite Aid Corporation because “[t]here are no
employees of Rite Aid Corporation, so we have no one to produce.” Dkt. #26-2, p.42.
By letter dated March 17, 2017, defense counsel repeated that plaintiff’s
notices include a deposition for an entity that has no
employees. Rite Aid Corporation has no employees so there
is no one to produce on their behalf. . . .
. . . If you want an Affidavit or Declaration on the issue of
Rite Aid Corporation, [sic] having no employees, we can
obtain such a Declaration from our client.
Dkt. #26-2, p.47.
By letter dated April 6, 2017, defense counsel reiterated that
as previously informed, there are no employees of Rite Aid
Corporation (“RAC”), thus there is no one to produce for a
deposition. Moreover, RAC has no involvement with respect
to your client’s employment. I am attaching a copy of an
Affidavit filed in another matter addressing the same issue.
Please advise if you will voluntarily withdraw the Complaint,
as against RAC. If not, we will have no choice but to file a
Motion to Dismiss as against RAC, as well as a Motion to
Quash the deposition notice.
Dkt. #26-2, p.51. The affidavit, from the Vice President of the Tax Department of Rite
Aid Hdqtrs. Corp., affirms that Rite Aid Corporation “is a holding company organized in
the State of Delaware” which “has no employees in any state.” Dkt. #26-2, p.53.
Defense counsel also advised that the deposition notice of Rite Aid of New York, Inc.
fails to comply with the Federal Rules in that it does not
specify the following: Rule 30(b)(6) requires that any notice
directed to an organization “must describe with reasonable
particularity the matters for examination.” We are unable to
designate any person to testify on their behalf without this
information. However, as mentioned above, if you would like
the HR representative who recommended termination, Amy
Clark, she is available on May 31st for deposition. If you
would like us to produce Amy Clark to testify about the
termination and human resources policies, please revise
your Notice of [D]eposition accordingly, or confirm in writing
the scope of the deposition. If there are other areas for
which you would like a witness produce, please let us know.
Dkt. #26-2, p.51.
By letter dated May 4, 2017, plaintiff’s counsel advised that
we will not agree to let Rite Aid Corporation out as it appears
that they are a separate corporation acting in concert on a
national basis in this age discrimination nationwide [sic] and
not just here. We will expect a party deposition from each
Dkt. #26-2, p.56.
By letter date May 11, 2017, defense counsel advised
that we will be filing a Motion to Quash with respect to RiteAid Corporation given your correspondence. . . .
Last, please note that until you comply with rule 30(b)(6) as
we previously advised, we are unable to produce a
representative of Rite Aid of New York, Inc. As indicated
above, we can produce Ms. Clark as the HR representative;
however, you need to confirm that she is sufficient as the
representative that you want Defendants to produce, as well
as the subjects of her testimony.
Dkt. #26-2, p.58.
By letter dated June 1, 2017, defense counsel advised that
until you comply with Rule 30(b)(6) as we previously
advised, we are unable to produce a representative of Rite
Aid of New York, Inc. for deposition. We are willing to
produce Ms. Clark as the HR representative; however, you
still need to confirm that she is sufficient as the
representative, as well as the subject of her testimony.
Finally, please confirm that Ms. Henderson will be available
to be deposed at our offices on June 28, 2017. As stated in
our previous letter, Mr. Seelman and Ms. Clark are available
on July 25 and July 26 for their respective depositions. Ms.
Clark will be available subject to your correction of the
deposition notice previously served.
This is our good faith attempt to confer prior to involving the
court with motion practice. Please advise when we can
expect Plaintiff’s outstanding discovery responses and
confirm the dates for Plaintiff’s deposition.
Dkt. #26-2, p.60.
Defense counsel filed the motion to quash on June 5, 2017. In support of
the motion, the Vice President of the Tax Department of Rite Aid Hdqtrs. Corp. affirms
Rite Aid Corporation (“RAC”) is incorporated in
Delaware, and maintains its principal place of business in
Harrisburg, Pennsylvania. Rite Aid Corporation is a holding
company for various Rite Aid-related entities. It has no
employees nor does it promulgate employment policies.
Plaintiff was employed by Defendant Rite Aid of New
York, Inc. at all times throughout the course of her
RAC has no employees in any state and is not related
to Plaintiff’s employment in any way. Rite Aide Corporation
does not issue personnel policies nor does it exercise any
domination or control of Rite Aid of New York, Inc. Further,
because RAC has no employees, it could not exercise any
supervisory responsibility over Plaintiff’s work or any
influence over her terms or conditions of employment.
Dkt. #26-3. Rite Aid Corporation argues that the motion to quash the deposition notice
should be granted because “it has no unique personal knowledge that is relevant to
Plaintiff’s individual claims of discrimination” and plaintiff “offers no specific allegations
in the Complaint against RAC and she fails to describe even the topics for deposition,
which demonstrates that any attempt to depose this entity is solely to harass and
unduly burden Defendants.” Dkt. #26-4, pp.6-7.
In response to the motion, plaintiff’s counsel attaches Securities and
Exchange Commission filings for Rite Aid Corporation and argues that it makes no
sense that a corporation operating more than 4,000 stores cannot produce someone for
a deposition. Dkt. #30.
In reply, defense counsel argues that plaintiff’s response does not
challenge its declaration that Rite Aid Corporation “is a holding company with no
employees and no unique personal knowledge that is relevant to this action.” Dkt. #31,
p.3. Defense counsel reiterates that plaintiff’s complaint offers no specific allegations
against Rite Aid Corporation and that plaintiff’s employment relationship was with Rite
Aid of New York, Inc., not Rite Aid Corporation. Dkt. #31, pp.3-4. Finally, defense
counsel notes that plaintiff’s counsel continues to fail to identify any topics upon which it
would depose representatives of Rite Aid Corporation. Dkt. #31, p.4. In light of
plaintiff’s counsel’s refusal to withdraw its deposition notice of Rite Aid Corporation and
its refusal to clarify the topics upon which defendants’ representatives would be
deposed, defendants seeks reimbursement of the costs of this motion. Dkt. #31, p.6.
Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that
deposition notices to corporations “must describe with reasonable particularity the
matter for examination.” “The purpose of this rule is to avoid the difficulties
encountered by both sides when the party to be examined is unable to determine who
within the corporation would be best able to provide the information sought.” Innomeds
Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002). Plaintiff’s notices of
deposition to both Rite Aid Corporation of New York Inc. and Rite Aid Corporation
clearly fail to meet this standard. Accordingly, the deposition notices are quashed
without prejudice to service of an sufficiently particularized notice of deposition upon
Rite Aid Corporation of New York, Inc.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that parties
“may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the discovery
in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” The Advisory Committee Notes to the 2015 Amendment
clarifies that the rule was amended to “encourage judges to be more aggressive in
identifying and discouraging discovery overuse.” Moreover, Rule 26(c) of the Federal
Rules of Civil Procedure provides that the Court may, for good cause shown, issue an
order to protect a party from annoyance, embarrassment, oppression, or undue burden
or expense with respect to a demand for discovery. In reliance upon Rite Aid
Corporation’s affidavit and in the absence of any allegations in the complaint or motion
papers suggesting that Rite Aid Corporation possesses any information relevant to
plaintiff’s allegations of age discrimination, the Court grants the motion for a protective
order precluding deposition of Rite Aid Corporation.
Having been afforded numerous opportunities to particularize relevant
deposition topics for the corporate entities, and having failed to meaningfully engage
with defense counsel to address the legitimate issues related to the deposition notices,
the Court agrees that plaintiff’s counsel should be required to pay defendants the
reasonable expenses incurred in bringing this motion before the Court, including
attorney’s fees. If the parties are unable to agree as to a reasonable award, defense
counsel shall submit an affidavit detailing the hours expended on this motion and
justification for counsel’s hourly rate no later than August 25, 2017.
Buffalo, New York
July 10, 2017
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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