Rundquist v. Vapiano Ag

277 F.R.D. 205, 80 Fed. R. Serv. 3d 1051, 2011 U.S. Dist. LEXIS 113438
District Court, District of Columbia·Decided September 30, 2011·No. Civil Action No. 2009-2207·Published·Cited by 7 cases

Opinion

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

Before the Court is plaintiff Ewa-Marie Rundquist’s motion to compel the appearance of six people for depositions in the District of *207 Columbia, and to extend the period for jurisdictional discovery for sixty days. The six noticed deponents are: Kent Hahne, Klaus Rader, Matteo Thun, Martin Luible, Claus Sauer, and Gregor Gerlaeh. The plaintiff contends that these individuals are officers, directors, or managing agents of defendants Vapiano SE, Vapiano International, and Va-piano Franchise USA. For the reasons set forth below, the plaintiffs motion is denied in part and granted in part. Vapiano SE is directed to produce Claus Sauer for deposition, and Vapiano International and Vapiano USA are directed to produce Gregor Gerlaeh for deposition in the District of Columbia. The plaintiffs request to compel depositions of Messrs. Hahne, Rader, Thun and Luible, however, is denied because these individuals are no longer employed by the defendants. In addition, the plaintiff is granted an additional sixty days to conduct jurisdictional discovery.

I. BACKGROUND

On November 20, 2009, the plaintiff filed a Complaint alleging that defendants Vapiano SE; Vapiano International, LLC (hereinafter “Vapiano International”); and Vapiano Franchise USA, LLC (hereinafter ‘Vapiano USA”) were infringing the plaintiffs copyrights by displaying her photographs without permission as a “central déeor element” in the defendants’ upscale Italian restaurant chain named Vapiano. 1 Am. Compl. ¶¶ 1, 24, 25. Defendant Vapiano SE moved to dismiss the allegations against it, arguing, inter alia, that the Court lacked jurisdiction over the German company. Def.’s Mot. to Dismiss, ECF No. 17, at 1. In a Memorandum Opinion and Order, dated July 20, 2011, ECF Nos. 28-29, the Court denied Vapiano SE’s motion to dismiss without prejudice, and granted the plaintiff sixty days to conduct discovery regarding Vapiano SE’s contacts with this district. The parties were to complete jurisdictional discovery by September 18, 2011. Order dated July 20, 2011, ECF No. 29 (Howell, J.).

On August 10, 2011, the plaintiff filed a motion to compel the depositions of Kent Hahne, Klaus Rader, Matteo Thun, Martin Luible, Claus Sauer, and Gregor Gerlaeh in the District of Columbia. ECF No. 33. 2 The plaintiff contends that these six individuals “have knowledge of Defendant Vapiano SE’s jurisdictional contacts with the District of Columbia and play key roles in Defendants’ operations within the District.” Mem. Supp. Pl.’s Mot. Compel, ECF No. 33, at 1. Defendant Vapiano SE filed an opposition to the plaintiffs motion on August 26, 2011, ECF No. 35, and defendants Vapiano International and Vapiano USA filed a joint brief in opposition to the plaintiffs motion on August 29, 2011. ECF No. 36. The plaintiff filed her reply brief on September 8, 2011, ECF No. 39, and, in response, the defendants requested a status conference in order to “correct several inaccurate statements” made by plaintiff in her final brief. ECF No. 40.

On September 16, 2011, the Court held an extended status conference during which, in addition to contesting the plaintiffs factual representations regarding the proposed deponents, counsel for defendants Vapiano Franchise and Vapiano USA acknowledged that his clients used the plaintiffs photographs without authorization. Transcript of September 16, 2011 Status Conference, Rundquist v. Vapiano, No. 09-cv-2207. Despite this concession, the parties continue to absorb the Court’s resources, and that of their clients, over discovery disputes, when the gravamen of the plaintiffs complaint regarding infringement of her copyrighted photographs appears to be conceded.

The only issue presently before the Court, however, is the plaintiffs pending motion to compel. As explained below, the Court denies the plaintiffs request to compel the *208 depositions of Messrs. Hahne, Rader, Thun, and Luible because they are not officers, directors, or managing agents of the defendant corporations. Defendant Vapiano SE is directed, however, to produce Mr. Sauer for deposition because he is a managing agent of that corporation. The Court additionally grants the plaintiffs motion to compel the deposition in the District of Columbia of Mr. Gerlach, who is the current CEO of Vapiano SE and President of Vapiano International.

II. DISCUSSION

Federal Rules of Civil Procedure 30(b)(6) allows adverse parties to obtain depositions from private and public corporations through their officers, directors or managing agents. Pursuant to Federal Rule of Civil Procedure 32(a)(3), “an adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent.” Courts have liberally construed the term managing agent, and the determination of whether an individual can be considered a “managing agent” of an organization is fact intensive, decided largely on a case-by-case basis. Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1452 (D.C.Cir.1986) (“The law concerning who may properly be designated as a managing agent is sketchy. Largely because of the vast variety of factual circumstances to which the concept must be applied, the standard, like so many others in the law, remains a functional one to be determined largely on a case-by-case basis.”). The D.C. Circuit has noted that “[f]or the purpose of determining whether an individual is a ‘managing agent’ within the meaning of the discovery rules, ... the focus begins with the character of the individual’s control.” Id. at 1452-53. Other factors include “both the degree to which the interests of the individual and the corporation converge, and how helpful the individual will be in fact-finding on the matter at issue, in comparison to others associated with the corporation.” Id. at 1453; see also E.I. DuPont de Nemours and Co. v. Kolon Indus., Inc., 268 F.R.D. 45, 48-49 (E.D.Va.2010) (stating that relevant factors in considering an individual’s managing agent status include “(1) the discretionary authority vested in the person by the corporation; (2) the employee’s dependability in following the employer’s directions; (3) whether the individual is more likely to identify with the corporation or the adverse party in the litigation; and (4) the degree of supervisory authority in areas pertinent to the litigation.”).

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Rundquist v. Vapiano Ag, 277 F.R.D. 205, 80 Fed. R. Serv. 3d 1051, 2011 U.S. Dist. LEXIS 113438 (D.D.C. 2011).

277 F.R.D. 205 (Rundquist v. Vapiano Ag) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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