United States District Court, D. Nevada
CHARLES GRAHL, individually and on behalf of all others similarly situated, Plaintiff,
CIRCLE K STORES, INC., a foreign corporation, Defendant.
FERENBACH, UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.
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.
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.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.
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.
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).
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
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, §
2103, 454 (3d ed. 2010). In making its selection, the
responding organization must ...