Mbaye v. RCI Hospitality Holdings, Inc.

Background

The plaintiffs moved to compel two forms of discovery: production of Mostapha Diop, also referred to in the motion as Modou Thiam and Mostapha Thiam, for a deposition; and complete responses without objections to Plaintiffs’ Interrogatories 3, 4, and 5. The requested information concerned bathroom attendants who worked at businesses owned by the defendants, including the attendants’ names, schedules, rates of pay, job descriptions, and managers’ identities. The plaintiffs said this information was important to developing the factual basis for an anticipated nationwide collective or class action.

Deposition of Thiam/Diop

The plaintiffs argued that Thiam/Diop was a “managing agent” under Federal Rule of Civil Procedure 30(b)(1). A managing agent is a person sufficiently connected to and authorized by a company that the company may be required to produce that person for a deposition without a subpoena. The plaintiffs pointed to filings and discovery responses in which the defendants stated that, before August 2023, Thiam/Diop brought in, scheduled, and assigned bathroom attendants to work at the defendants’ nightclubs. The defendants also stated that he was then an employee responsible for scheduling bathroom attendants.

The plaintiffs further relied on text messages and statements by defense counsel indicating that the defendants had control over Thiam/Diop and that discovery requests directed to the defendants applied to information in his possession. The plaintiffs also said that three general managers did not provide substantive testimony about the bathroom attendants and identified Thiam/Diop as the person responsible for them. Based on this evidence, the court concluded preliminarily that Thiam/Diop was a managing agent of the defendants and ordered the defendants to produce him for a deposition.

The court explained that this was only a preliminary determination. It deferred deciding whether his testimony would ultimately bind the defendants while discovery continued, noting that the deposition testimony itself could provide the best evidence of his status.

Interrogatories and meet-and-confer requirement

The court denied without prejudice to renewal the plaintiffs’ request to compel complete responses without objections to Interrogatories 3, 4, and 5. The defendants represented that the plaintiffs had not adequately met and conferred about the alleged deficiencies. The court found that the plaintiffs had provided no evidence showing that they had completed that required process, despite an earlier instruction to attach notices of deficiency or other documentation to a renewed motion.

The court directed the plaintiffs to meet and confer with the defendants before bringing any future discovery dispute. It warned that failing to comply with the court’s individual rules could result in sanctions.

Disposition

The application was granted in part and denied in part, without prejudice to renewal. The court granted the motion to compel production of Thiam/Diop for a deposition and denied without prejudice the motion to compel responses to Interrogatories 3, 4, and 5. The clerk was asked to terminate ECF No. 93.