Alexander v. 1328 Uptown, Inc.

Background

D’Andre I. Alexander sued 1328 Uptown, Inc., Fortney Hospitality Group, Inc., and Fortney Companies, Inc. He alleged negligence, innkeeper liability, negligence per se, negligent undertaking, negligent infliction of emotional distress, and violation of Minnesota’s Dram Shop Act. According to the complaint, Alexander suffered permanent injuries after Eddie Burch, whom 1328 Uptown allegedly overserved alcohol, shot Alexander following an altercation at 1328 Uptown on June 25, 2017.

The Fortney Entities are Fortney Hospitality Group and Fortney Companies. The complaint alleged that the defendants owned and operated Bar Louie Uptown, but it did not allege that the Fortney Entities were alter egos of 1328 Uptown or that the corporate veil should be pierced. In an earlier order, the court denied Alexander’s request to extend the schedule to conduct veil-piercing discovery and then amend the complaint to add that theory. The court did extend discovery for certain depositions that the parties had already agreed to extend.

The court considered three motions: the Fortney Entities’ motion to quash deposition notices and for a protective order, 1328 Uptown’s motion for a protective order concerning written discovery, and Alexander’s motion to compel discovery. A protective order limits or prevents discovery for good cause, including when discovery is irrelevant, disproportionate, or unduly burdensome. The court applied Federal Rule of Civil Procedure 26, which limits discovery to nonprivileged information relevant to a claim or defense and proportional to the needs of the case.

Relevance of the Discovery

The court rejected Alexander’s broad view of foreseeability under Minnesota’s innkeeper-liability law. The relevant notice inquiry concerns whether the innkeeper knew of the offending person’s dangerous or violent tendencies based on some act or threat. It does not generally concern whether any patron might injure another patron. The court also concluded that employee training and control of alcohol-service decisions were not elements of Alexander’s Dram Shop Act claim, which requires proof that alcohol was illegally sold and that the illegal sale contributed to intoxication and proximately caused the injury.

The court further concluded that a provision of the Restatement of Torts concerning an employer’s duty to control an employee did not provide a sound basis for discovery because that provision applies when the employee acts outside the scope of employment, and no defendant had raised that defense.

Fortney Entities’ Motion

The court treated the Fortney Entities’ motion to quash as a motion for a protective order concerning the depositions because the Fortney Entities were parties, not nonparty subpoena recipients. The court granted in part and denied in part that motion.

Alexander may depose Eric Fortney, Marc Fortney, Carol Fortney, and Mary Lin Wershofen. The court found that the first two had officer or director roles and some involvement with 1328 Uptown; Wershofen was the Fortney Entities’ Human Resources Manager, verified discovery responses, and had received at least one email concerning a fight at 1328 Uptown; and Carol Fortney was the Fortney Hospitality Group’s treasurer and had been identified as having information about the Fortney Entities’ defense that they were not proper defendants. Only one deposition of each permitted witness was allowed.

The court granted the motion as to Ronald Fortney because Alexander had not identified relevant, noncumulative information that Ronald Fortney possessed. Alexander could seek court permission to depose Ronald Fortney after completing the permitted depositions if he could identify specific relevant information not held by the other witnesses. The court also found that objections to the deposition location were moot because Alexander agreed that the depositions could occur in La Crosse, Wisconsin.

The court granted the Fortney Entities’ request for a protective order barring veil-piercing discovery. Because that theory was not pleaded and the court had already denied the request to extend the schedule to pursue it, the court found that veil-piercing discovery was not relevant to any claim or defense. The permitted depositions also could not include questions directed to veil piercing.

Alexander’s Written Discovery to the Fortney Entities

The court sustained objections to interrogatories seeking information about the Fortney Entities’ stock ownership, capitalization, stock certificates, dividends, loans, guarantees, bank accounts, meetings, gifts, debts, property, tax information, and similar financial matters. The court found that these requests were not relevant to Alexander’s pleaded claims or defenses and were disproportionate. Alexander’s motion to compel was denied, and the Fortney Entities’ motion for a protective order was granted as to those requests.

For Interrogatory No. 7, the court required the Fortney Entities to identify people who had served as officers, directors, or management-level employees during the five years preceding June 25, 2017, state their positions, and state how long they held those positions. The Fortney Entities did not have to provide contact information or compensation information.

The court denied Alexander’s motion to compel as to Interrogatory No. 26, which sought broad information about every lawsuit against the Fortney Entities. It also ruled that Alexander exceeded the 35-interrogatory limit through the numerous separate questions contained in Interrogatory Nos. 28, 29, and 30, so the Fortney Entities did not have to answer those interrogatories. The court required responses to Interrogatory Nos. 21, concerning when the Fortney Entities first learned facts indicating Alexander might have a claim, and 27, concerning self-insurance.

The court denied Alexander’s motion to compel and granted the Fortney Entities’ protective-order motion concerning Requests for Production Nos. 2, 5-30, and 32. Those requests sought corporate records, financial information, property records, tax returns, and personal financial information. The court found the requests irrelevant or disproportionate, and viewed much of them as directed to veil piercing.

The court overruled the Fortney Entities’ relevance objections to Requests for Admission Nos. 1-14. Those requests sought information about the defendants’ corporate relationship, employee manuals and policies, and involvement in operating 1328 Uptown. The court granted Alexander’s motion to compel and denied the Fortney Entities’ protective-order motion as to those requests, but only to the extent the requests could be separated into distinct components and followed a logical or chronological order.

Alexander’s Written Discovery to 1328 Uptown

The court granted 1328 Uptown’s motion for a protective order and denied Alexander’s motion to compel as to Interrogatory Nos. 25-27, 29-30, and 32-35. These requests sought broad information about lawsuits, regulatory actions, other businesses, police calls, alcohol sales, patron removals, injury complaints, advances, guarantees, and other matters. The court found the requests irrelevant or disproportionate, and Alexander acknowledged that Interrogatory Nos. 34 and 35 were aimed at veil piercing.

The court required 1328 Uptown to identify documents and video responsive to Interrogatory No. 28, which concerned Eddie Burch’s activities on June 25-26, 2017. It also required a response to Interrogatory No. 31, concerning cameras and other recording equipment and the images or sounds recorded at Bar Louie on those dates. 1328 Uptown had to provide those responses within 14 days. The court overruled 1328 Uptown’s objections based on the number of interrogatory subparts for these two requests.

The court denied Alexander’s motion to compel and granted 1328 Uptown’s protective-order motion as to Requests for Production Nos. 1, 12, and 18. Those requests sought historical agreements, June 2017 sales records, and complete personnel files. The court found the historical agreements marginally relevant, the broader sales records unsupported by Alexander’s theory of foreseeability, and the personnel files unnecessary because relevant training materials had already been produced.

The court also denied Alexander’s motion to compel and granted 1328 Uptown’s protective-order motion as to Requests for Production Nos. 27-44. The court found that the requests were plainly aimed at veil piercing and were disproportionate, cumulative, or duplicative of materials already produced.

The court overruled 1328 Uptown’s objections to Requests for Admission Nos. 2, 5, 7, 9, and 13-16. Those requests concerned the Fortney Entities’ possible operation of 1328 Uptown and whether they were proper defendants. 1328 Uptown had to respond within 14 days to the extent the requests could be separated into distinct components and followed a logical or chronological order. The court noted that the rules allow a party to qualify an answer or deny only part of a request.

Other Conduct and Final Disposition

The court found that both Alexander and 1328 Uptown had violated court orders. 1328 Uptown improperly withheld its lease based on the absence of a protective order, and Alexander publicly filed a franchise agreement marked confidential. Because neither party requested relief for those violations, the court took no action on them but reminded both parties to comply with court orders and local rules.

The final order granted in part and denied in part the Fortney Entities’ motion, granted in part and denied in part 1328 Uptown’s motion, and granted in part and denied in part Alexander’s motion to compel. The order was signed by United States Magistrate Judge Elizabeth Cowan Wright.