Wauchop v. Domino's Pizza, Inc.

143 F.R.D. 199, 1992 U.S. Dist. LEXIS 9677, 1992 WL 157282
CourtDistrict Court, N.D. Indiana
DecidedMay 26, 1992
DocketNo. S90-496 (RLM)
StatusPublished

This text of 143 F.R.D. 199 (Wauchop v. Domino's Pizza, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wauchop v. Domino's Pizza, Inc., 143 F.R.D. 199, 1992 U.S. Dist. LEXIS 9677, 1992 WL 157282 (N.D. Ind. 1992).

Opinion

MEMORANDUM AND ORDER

MILLER, District Judge.

Some observers of civil litigation believe that discovery rights will be taken from lawyers within the next decade or two, to be replaced by a system of standard disclosures. That belief is based on exaggerated perceptions of the failure of cooperative, properly limited discovery without court intervention. The method in which discovery has been conducted in this case, unfortunately, lends credence to such perceptions.

Once again, this cause comes before the court on discovery-related motions. The plaintiffs filed a motion to strike defendant Thomas Monaghan’s answer and summary judgment motion and for the entry of default against Mr. Monaghan for his failure to appear for deposition; Mr. Monaghan responded by moving to strike the notice of his deposition. The plaintiffs have also filed a motion to strike the answer of defendant Domino’s Pizza, Inc. (“Domino’s”) for its failure to produce witnesses for deposition and respond to discovery. In their motion directed to Domino’s, the plaintiffs ask the court to enter default against Domino’s or, in the alternative, to order Domino’s to produce all deponents in Chicago and provide all outstanding discovery by a date certain. The court assumes familiarity with the factual background and previous orders in this action.

Motion for Entry of Default Against Mr. Monaghan and Motion to Strike Mr. Monaghan’s Deposition

During a telephonic status conference on January 24, 1992, the court ordered the parties to complete all outstanding written [201]*201discovery and all previously noticed depositions by February 28. Mr. Monaghan’s deposition previously had been noticed. The court also afforded the plaintiffs until March 16, to file a response to Mr. Monaghan’s motion for summary judgment. During the status conference, counsel for Domino’s and Mr. Monaghan stated that she would have a problem producing Mr. Monaghan for deposition.

Mr. Monaghan had moved for summary judgment on August 5, 1991, contending that he should not be held personally liable for the accident that forms the basis of this action. His motion is supported by his own affidavit, which stated that he was not personally involved in the operation of the franchise owned by defendant Scott Halvorsen, that he never had any dealings with defendant Christopher Braden, and that his only conduct in relation to the 30-minute guarantee was in his capacity as a corporate director or officer. In his affidavit, Mr. Monaghan states that the 30-minute guarantee policy went through corporate channels and was implemented after discussions with franchisees. He also states that the guarantee stresses safe driving. After Mr. Monaghan’s motion for summary judgment was filed, the plaintiffs requested additional time to conduct discovery before responding to the motion. Fed. R.Civ.P. 56(f).

The plaintiffs planned to test the assertions in Mr. Monaghan’s affidavit by deposing Mr. Monaghan and other employees of Domino’s. Mr. Monaghan, however, has refused to make himself available for deposition for several reasons. Mr. Monaghan’s motion to strike the notice of his deposition reiterates the arguments in his summary judgment motion; he claims that he is not personally liable to the plaintiffs because the only allegations against him relate to his implementation of the 30-minute policy in his capacity as a director, shareholder, and chief executive officer of Domino’s. He further reiterates that he was never directly involved with Mr. Bra-den or with the operation of the franchise operated by Mr. Halvorsen.

Mr. Monaghan also claims, surprisingly, that the 30-minute policy is not an issue in this case. He states, as Domino’s argued in response to an earlier discovery motion, that no reasonable trier of fact could find that Mr. Braden was trying to comply with the 30-minute policy when the accident occurred, because at the time of the accident Mr. Braden was returning to the store from a pizza delivery. Further, Mr. Monaghan claims that the 30-minute policy could be an issue only if Mr. Braden was speeding at the time of the accident, and that the only evidence that Mr. Braden was speeding is John Noonan’s speculation during his deposition based on the speed with which Mr. Braden’s car passed Mrs. Wauchop’s vehicle. Finally, Mr. Monaghan argues that he has no knowledge of the policies and procedures of Domino’s that cannot be obtained through written discovery or deposition of other Domino’s employees.

Mr. Monaghan’s counsel claims that the parties agreed that depositions could be taken after the deadline established at the January 24 status conference. She also claims that she informed the plaintiffs’ counsel that she would not object to a further extension of time for the plaintiffs to file a response to Mr. Monaghan’s summary judgment motion, and that the parties agreed that the plaintiffs would wait until after the depositions of other Domino’s employees before asking the court to decide the issue of Mr. Monaghan’s deposition.

The plaintiffs assert that they need to depose Mr. Monaghan regarding the statements in his affidavit, that Mr. Monaghan was named as a defendant because the plaintiffs believe he is personally liable, and that they expect to depose him as they would any defendant. The plaintiffs filed the motion because Mr. Monaghan refused to be deposed. They would have preferred to depose other Domino’s employees before Mr. Monaghan, but Domino’s did not make other employees available for deposition, except those produced pursuant to Fed. R.Civ.P. 30(b)(6). The plaintiffs seek to avoid further delays in discovery and briefing-

[202]*202Although counsel may have agreed to an extension of the deadlines for depositions and briefing, counsels' agreement alone does not constitute good cause for extending deadlines pursuant to Fed. R.Civ.P. 16(b).

The arguments regarding the relevance of the 30-minute policy have been raised before in an effort to avoid discovery, and these arguments are without merit for the purpose of restricting discovery. The plaintiffs are entitled to conduct discovery on the relationship between the 30-minute policy and the accident.

Mr. Monaghan argues that as the chief executive officer of Domino’s, he should not be required to appear for a deposition when the same discovery can be conducted through other employees, citing Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.R.I. 1985), and Hughes v. General Motors Corp., 18 Fed.R.Serv.2d 1249 (S.D.N.Y. 1974).

The court disagrees. The plaintiffs are entitled to take Mr. Monaghan’s deposition to inquire into his role in the development of the 30-minute policy, a topic central to the plaintiffs’ theory of Mr. Monaghan’s liability and central to Mr. Monaghan’s affidavit. The plaintiffs point to discovery material that lends support to their contention that Mr. Monaghan was directly involved in implementation of Domino’s policies, and that he hired and fired the corporation’s president, David Black. Unlike the plaintiffs in Mulvey and Hughes, these plaintiffs seek discovery from a party himself, not simply from a corporate officer.

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143 F.R.D. 199, 1992 U.S. Dist. LEXIS 9677, 1992 WL 157282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wauchop-v-dominos-pizza-inc-innd-1992.