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Henderson v. Rite Aid of New York, Inc.

United States District Court, W.D. New York

July 10, 2017

SUSAN HENDERSON, Plaintiff,
v.
RITE AID OF NEW YORK, INC., RITE AID CORPORATION, TIM MATTHEWS, and DAVID SEELMAN, Defendants.

          DECISION AND ORDER

          H. KENNETH SCHROEDER, JR. United States Magistrate Judge

         This case was referred to the undersigned by the Hon. Lawrence J. Vilardo, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #13.

         Plaintiff commenced this action seeking damages for a violation of the Age Discrimination in Employment Act of 1967, as codified, 29 U.S.C. § 621 et seq. (”ADEA”), and New York Executive Law § 290 et seq. (“Human Rights Law”), alleging that she was wrongfully terminated from her employment with defendant Rite Aid of New York, Inc. Dkt. #1. Rite Aid Corporation is named in the complaint as the “parent corporation” of Rite Aid of New York, Inc. Dkt. #1.

         Currently before the Court is a motion to quash plaintiff's Notice of Deposition of Rite Aid Corporation, to compel plaintiff to identify with particularity the topics upon which Rite Aid of New York, Inc., will be deposed, and to award defendants reasonable attorney's fees. Dkt. #26.

         On January 25, 2017, plaintiff served Notices of Deposition on Rite Aid Corporation and Rite Aid of New York, Inc., seeking to depose a representative “with respect to all matters relevant to the subject matter involved in this action.” Dkt. #26-2, pp.26 & 29.

         By letter dated February 28, 2017, defense counsel asked plaintiff to withdraw the Notice of Deposition to Rite Aid Corporation because “[t]here are no employees of Rite Aid Corporation, so we have no one to produce.” Dkt. #26-2, p.42.

By letter dated March 17, 2017, defense counsel repeated that plaintiff's notices include a deposition for an entity that has no employees. Rite Aid Corporation has no employees so there is no one to produce on their behalf. . . .
. . . If you want an Affidavit or Declaration on the issue of Rite Aid Corporation, [sic] having no employees, we can obtain such a Declaration from our client.

Dkt. #26-2, p.47.

By letter dated April 6, 2017, defense counsel reiterated that
as previously informed, there are no employees of Rite Aid Corporation (“RAC”), thus there is no one to produce for a deposition. Moreover, RAC has no involvement with respect to your client's employment. I am attaching a copy of an Affidavit filed in another matter addressing the same issue. Please advise if you will voluntarily withdraw the Complaint, as against RAC. If not, we will have no choice but to file a Motion to Dismiss as against RAC, as well as a Motion to Quash the deposition notice.

Dkt. #26-2, p.51. The affidavit, from the Vice President of the Tax Department of Rite Aid Hdqtrs. Corp., affirms that Rite Aid Corporation “is a holding company organized in the State of Delaware” which “has no employees in any state.” Dkt. #26-2, p.53.

         Defense counsel also advised that the deposition notice of Rite Aid of New York, Inc.

fails to comply with the Federal Rules in that it does not specify the following: Rule 30(b)(6) requires that any notice directed to an organization “must describe with reasonable particularity the matters for examination.” We are unable to designate any person to testify on their behalf without this information. However, as mentioned above, if you would like the HR representative who recommended termination, Amy Clark, she is available on May 31st for deposition. If you would like us to produce Amy Clark to testify about the termination and human resources policies, please revise your Notice of [D]eposition ...

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