United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. United States Magistrate Judge
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.
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.
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.
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.
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.
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
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.
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