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Grahl v. Circle K Stores, Inc.

United States District Court, D. Nevada

August 31, 2017

CHARLES GRAHL, individually and on behalf of all others similarly situated, Plaintiff,
v.
CIRCLE K STORES, INC., a foreign corporation, Defendant.

          ORDER

          CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE

         This matter involves Plaintiff Charles Grahl's class action against Defendant Circle K Stores, Inc. (“Circle K”) for allegedly violating the Fair Labor Standards Act (“FLSA”). Before the Court are Grahl's Motion to Compel Defendant Circle K Stores, Inc.'s Compliance with Fed.R.Civ.P. 30(b)(6) (ECF No. 314); Circle K's Response (ECF No. 319); and Grahl's Reply (ECF No. 322). For the reasons discussed below, Grahl's motion is DENIED.

         I. Background

         Grahl filed a complaint against Defendant Circle K on February 27, 2014, on behalf of himself and others similarly situated. See ECF No. 1. In the Complaint, Grahl alleges that as a Nevada resident, he worked for Circle K as a store manager from 1995 until 2001 and again in 2005 until February 17, 2014. Id. at 1. Grahl also alleges that he and other putative class members were paid on a salary basis during their employment as store managers and were classified by Circle K as exempt from the overtime provisions of the FLSA. Id. at 2. According to the Complaint, Grahl and other putative class members were required to work an average of 65 hours per week, which was a policy applied nationwide by Circle K. Id. at 5.

         Grahl's Complaint brings one cause of action against Circle K for allegedly violating the FLSA by failing to pay proper overtime compensation to Grahl and other putative class members who are also store managers. Id. at 7. Grahl brings his present claim as a collective action seeking to represent himself and all other store managers who worked for Circle K and were not paid overtime despite allegedly having worked more than 40 hours in a week. See ECF No. 1 at 6-7. Grahl seeks unpaid overtime compensation, liquidated damages, attorney's fees and costs, and compensatory and special damages. Id. at 2.

         On August 25, 2014, Grahl filed a motion for a collective action to certify this class. See ECF No. 126. In that motion, Grahl and the other store managers who joined as plaintiffs in this case sought certification of this action as a nationwide collective action under Title 29 U.S.C. § 216(b). On August 26, 2015, the Honorable Richard F. Boulware II conditionally certified a collective action under 29 U.S.C. § 216(b) consisting of persons who are or were employed by Circle K as a store manager anywhere in the U.S. at any time from October 31, 2011, through the present for purposes of the FLSA claim brought by Grahl. See ECF No. 261 at 91.

         The parties are now in the midst of discovery. Since June 2016, both parties have been attempting to schedule Rule 30(b)(6) depositions with Circle K representatives. The parties exchanged correspondence and held numerous teleconferences about the substance of the deposition topics and the appropriate number of Rule 30(b)(6) deponents to testify on the topics. After receiving Grahl's Notice of Deposition, Circle K responded with its Rule 30(b)(6) witness designations. Circle K planned to produce nine different individuals to testify on 23 deposition topics. See ECF Nos. 319-11; 322, Ex. 1 at 7.

         Circle K alleges that its business structure is separated into seven different divisions based on geography. See id.; see also ECF No. 319-3. Circle K has designated a Human Resource (“HR”) representative from each division to testify about various topics. Id. In particular, for topics 5-14 and 17 of the Amended Deposition Notice, Circle K has designated six different designees, i.e., the HR representatives from each division, to speak about issues related to each designee's specific geographic division. Circle K designated Kimberley Hoppa, however, to provide testimony on deposition topics 5-9 and 17 for Circle K as a whole as well as provide Arizona specific division testimony.[1]Grahl asserts that he should not be forced to take multiple depositions of multiple deponents from various Circle K subdivisions for each noticed topic to obtain Circle K's testimony. See ECF No. 322 at 3. Circle K responds that the nine deponents it has proposed for the 23 deposition topics is proportional and complies with the Federal Rules of Civil Procedure. See ECF No. 319 at 18. Grahl seeks a single designee per topic for topics 5-14 and 17. See ECF No. 322 at 4.

         The parties settled on a date of December 7, 2016, to depose one of Circle K's Rule 30(b)(6) witnesses, Kimberley Hoppa, director of human resources, training, and loss prevention for the Arizona Division. See ECF No. 314, Ex. 7. Grahl submitted a final Amended Notice of Deposition containing 23 deposition topics to Circle K on November 8, 2016. Id. Ms. Hoppa was scheduled to testify as to topics 4-9, and 16-20, and portions of topics 10-13 and 15 related to the Arizona division. See ECF No. 319-17. Ms. Hoppa testified on December 7, 2016. Ms. Hoppa's deposition was continued to January 19, 2017. See ECF Nos. 319-20; 319-21; and 319-22. Grahl argues that Circle K did not properly prepare and educate Ms. Hoppa for her deposition because all her preparation was focused on the Arizona Division. See ECF No. 322 at 11. Circle K responds that Ms. Hoppa was adequately prepared, but Grahl's counsel did not ask Ms. Hoppa about relevant areas of inquiry in which she was designated to speak to. See ECF No. 319 at 21-22. Instead, Circle K asserts that Grahl's counsel spent the bulk of the deposition questioning Ms. Hoppa about why she was not designated for certain other topics. Id.

         The parties reached an impasse on what was required of each party under Fed.R.Civ.P. 30(b)(6). On February 3, 2017, the parties conducted a meet and confer conference, but were unable to agree on the number of Circle K's Rule 30(b)(6) designees or the requisite level of preparation for each individual designee. See ECF Nos. 314 at 11; 319 at 14; LR 26-7. Consequently, on June 7, 2017, Grahl filed the instant Motion to Compel (ECF No. 314).

         II. Legal Standard

         Fed. R. Civ. P. 30 governs depositions by oral examination. In pertinent part, Rule 30(b)(6) provides:

In its notice or subpoena, 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 … The persons designated must testify about information known or reasonably available to the organization

         The rule begins with the requirement that the notice of deposition must “describe with reasonable particularity the matters for examination.” See Fed. R. Civ. P. 30(b)(6). The purpose of this requirement is to enable the responding organization “to identify the person who is best situated to answer questions about the matter, or to make sure that the person selected to testify is able to respond regarding that matter.” See 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FederalPractice and Procedure, ยง 2103, 454 (3d ed. 2010). In making its selection, the responding organization must ...


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