Oberdorf et al v. Amazon.Com, Inc.
ORDER denying 21 Motion to Compel; Clerk directed to docket this order as a written opinion per E-Govt Act of 2002. Signed by Honorable Matthew W. Brann on 6/19/17 (flagged as opinion) (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HEATHER R. OBERDORF and
MICHAEL R. OBERDORF, her husband,
AMAZON.COM, INC., a Washington
JUNE 19, 2017
1. On May 30, 2017, Plaintiffs Heather Oberdorf and Michael Oberdorf
(“Plaintiffs”) filed the instant Motion to Compel.1 This Motion has since
been fully briefed and is ripe for disposition.2
2. In this Motion, Plaintiffs ask the Court to compel the deposition of an
Amazon.com representative capable of providing information on the “Seller
Assent to Business Solutions Agreement” (“Agreement”). In support
thereof, Plaintiffs aver that Defendant Amazon.com’s (“Defendant”) Rule
ECF No. 21. The Court notes, for future reference, that Plaintiffs failed to follow the
procedure for resolution of discovery disputes outlined in this Case Management Order of
September 19, 2016 in accordance with Fed. R. Civ. P. 16(b)(3)(B)(v).
ECF Nos. 22, 26, & 27.
30(b)(6) deponent, Mr. Nicholas Denissen, was unprepared to speak about
this document at his May 2, 2017 deposition.3
3. In response, Defendant avers that Plaintiffs’ May 30, 2017 Motion, while
styled as a Motion to Compel, is in fact a motion to reopen a discovery
period which closed on May 3, 2017.4 Defendant further argues that the
Court lacks “good cause” to reopen discovery because Plaintiffs failed to
include the Agreement as a topic to be discussed in its Notice of the
Deposition. As such, Mr. Denissen cannot be deemed an unprepared Rule
4. “It is well established that the scope and conduct of discovery are within the
sound discretion of the trial court . . . and that after final judgment of the
district court . . . our review is confined to determining if that discretion has
been abused.” Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir.
1983) (Aldisert, J.). “To find such abuse it is usually necessary to conclude
that there has been an interference with a substantial right . . . or that the
discovery ruling is seen to be a gross abuse of discretion resulting in
fundamental unfairness in the trial of the case.” Id. Thus, the United States
ECF No. 22, at 5.
ECF No. 26, at 7–8.
Court of Appeals for the Third Circuit has forewarned litigants that it “will
not interfere with a trial court’s control of its docket except upon the clearest
showing that the procedures have resulted in actual and substantial prejudice
to the complaining litigant.” In re Fine Paper Antitrust Litig., 685 F.2d 810,
817–18 (3d Cir. 1982) (Aldisert, J.).
5. Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order
may be modified “for good cause and with the judge’s consent.” Fed. R. Civ.
P. 16(b)(4). “This authority extends to requests to reopen discovery.” In Re
Chocolate Confectionary Antitrust Litigation, 2013 WL 3873225, *2 (M.D.
Pa. July 25, 2013) (Connor, J.) (citing Aamco Transmissions, Inc. v. Marino,
1991 WL 40336 (E.D. Pa. Mar. 19, 1991)). This standard is significantly
more stringent than the standard in Rule 15(a)(2) which provides that courts
should “freely give leave [to amend] when justice so requires.” Race Tires
Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010)
(citing Fed. R. Civ. P. 15(a)(2))). A movant’s “due diligence” is essential in
establishing good cause. Race Tires, 614 F.3d at 84; see also Brown v.
American Sintered Technologies, 2015 WL 917293 (M.D. Pa. March 3,
2015) (Brann, J.) (the “good cause standard hinges on diligence of the
movant.” Venetec Inter., Inc. v. Nexus Med., LLC, 541 F. Supp. 2d 612, 618
(D. Del. 2008)).
6. Federal Rule of Civil Procedure 30(b)(6) provides that
[A] party may name as the deponent a public or private corporation, a
partnership, an association, a governmental agency, or other entity and
must describe with reasonable particularity the matters for
examination. The named organization must then designate one or
more officers, directors, or managing agents, or designate other
persons who consent to testify on its behalf; and it may set out the
matters on which each person designated will testify. A subpoena
must advise a nonparty organization of its duty to make this
designation. The persons designated must testify about information
known or reasonably available to the organization.
Fed. R. Civ. P. 30(b)(6). A Rule 30(b)(6) corporate designee must “take a
conscientious good faith endeavor to designate the persons having
knowledge of the matters sought . . . and to prepare those persons in order
that they can answer fully, completely, unevasively, the questions posed . . .
as to the relevant subject matters.” Costa v. County of Burlington, 254
F.R.D. 187, 189(D.N.J. 2008)(quoting Harris v. New Jersey, 259 F.R.D. 89,
92 (D.N.J. 2007)). This duty “goes beyond matters personally known to the
designee or to matters in which the designee was personally involved, and if
necessary the deponent must use documents, past employees or other
resources to obtain responsive information.” Harris, 259 F.R.D. at 92–93.
7. Having reviewed the submissions of both parties, I find that Plaintiffs have
failed to show “good cause” necessary to reopen the discovery period, and in
turn modify a prior scheduling order. First, I specifically note that Plaintiffs’
Rule 30(b)(6) Notice of Deposition outlined the following topics for
examination at Mr. Denissen:
a. Nature of the relationship between Defendant Amazon.com and
individuals and entities who sell products through Amazon.com
pursuant to an Amazon Business Solutions Agreement;
b. Supervision Amazon exercises over sellers that utilize Amazon.com
to sell their merchandise;
c. Financial arrangements between Amazon and sellers that sell products
d. Extent to which Amazon investigates or otherwise vets entities and
individuals they permit to sell products on their website;
e. Method by which Amazon maintains a record of complaints involving
entities and individuals who sell products on their website;
f. Extent to which Amazon reviews, approves, and or otherwise
regulates the type of products sold and the nature of the advertising
used to sell products on its website;
g. Under what circumstances Amazon will revoke an individual or
entity’s ability to sell products on its website.5
ECF No. 25-3.
Nowhere included in that list is any reference to the “Seller Assent to
Business Solutions Agreement”, or the process by which a seller assents to
Business Solutions Agreement, despite Plaintiffs’ admission that they had
received a redacted copy of this document on December 13, 2016,6 and an
unredacted copy of this one page document on March 30, 2017.7
Furthermore, because none of Plaintiffs’ previous discovery requests had
related to the Agreement, Defendant was not on notice the document would
be relevant area of inquiry. Given this failure of Notice to Defendant
concerning requested testimony on this document, Mr. Denissen, Vice
President of Marketplace Business for Amazon, cannot be deemed a wholly
unprepared Rule 30(b)(6) deponent based on simply his failure to speak
concerning one document.8 As such, Plaintiffs have failed to show “good
cause” to reopen discovery on the eve of the July 3, 2017 dispositive motion
ECF No. 21, at 4.
ECF No. 27, at 2.
Costa, 254 F.R.D. at 190 (“Simply because defendant's witness could not answer every
question posed to him does not equate to the fact that defendant did not satisfy its obligation
to prepare its 30(b)(6) witness.”).
AND NOW, THEREFORE, IT IS HEREBY ORDERED THAT
Plaintiffs Heather Oberdorf and Michael Oberdorf’s Motion to Compel (ECF No.
21) is DENIED.
The Clerk of Court is directed to docket this Order as a “written opinion,”
pursuant to the E-Government Act of 2002.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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