The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
AUTUMN SANDERS,
and JANIELE REID,
PLAINTIFFS,
Case No: 2:19-cv-02056-JTF
v. JURY DEMANDED
SHELBY COUNTY BOARD OF EDUCATION,
and, GREG MCCULLOUGH,
in his individual and official capacities,
DEFENDANTS.
ORDER ON MOTION TO COMPEL AND FOR SANCTIONS
Before the court, by way of Order of Reference (D.E. # 136) is Plaintiff’s June 15,
2020 Motion to Compel (D.E. # 133). Defendants responded to the motion on June 29,
2020 and Plaintiffs filed their reply, with leave of Court, on July 6, 2020. (D.E. # 135, 138
and 139) On July 17, 2020, a hearing on the motion was held via Skype.
The focus of the motion to compel is the deposition of Gregory Howard, the
assistant principal at Central High School. Mr. Howard’s deposition was initially noticed
for April 6, 2020. Due to various non-case related matters, the deposition was postponed
and/or rescheduled at least four times to a June 11, 2020 setting that was agreed to by the
parties. Less than a week before the deposition, Defendants’ counsel contacted Plaintiffs’
counsel to inform them that Mr. Howard would be traveling by automobile at the time
designated for the deposition and would have to be deposed by telephone rather than by
video teleconference. Further, Mr. Howard had not been provided with 588 pages of
documents that Plaintiffs’ counsel anticipated questioning Mr. Howard about in the course
of the deposition. The deposition was held by telephone but Plaintiff asserted in the motion
that this was not satisfactory and that Defendants should be compelled to produce Mr.
Howard for a teleconference video deposition and that Defendants should be ordered to
pay the costs associated with re-noticing the deposition as well as the costs of filing the
motion. On June 26, 2020 – after the motion was filed but before the hearing – Mr.
Howard’s deposition was concluded in person.
At the hearing, Plaintiffs conceded that there was no longer any need for the Court
to compel Mr. Howard to be deposed as that had already taken place. However, Plaintiffs
still seek sanctions, arguing that Defendants’ conduct was in bad faith and warrants
sanctions. Defendants respond that sanctions are not warranted as Defendants did not act
in bad faith and because Mr. Howard was only questioned about one thirty-one page
document out of the 588 pages that Plaintiffs contend were needed for the deposition.
Before analyzing the propriety of sanctions, there must first be a determination of
whether sanctions are authorized for the alleged conduct. Plaintiffs assert that sanctions
are appropriate under Federal Rule of Civil Procedure 37(d)(3) for a party’s failure to attend
its own deposition. Because Plaintiffs’ memorandum did not discuss how Mr. Howard
could be construed for the purposes of sanctions as a party, the parties were ordered to
submit supplemental briefs. Plaintiffs contend that Mr. Howard is a managing agent as
listed in Fed.R.Civ.P 37(d)(1)(A)(i) and therefore exposes Defendants to sanctions.
The Sixth Circuit adopted a three-factor test from the Northern District of
California to determine whether a witness is a “managing agent” under Fed. R. Civ. P. 43:
“[A] managing agent of a corporation, partnership or association is any
person who:
1. Acts with superior authority and is invested with general
powers to exercise his judgment and discretion in dealing with his
principal’s affairs (as distinguished from a common employee, who
does only what he is told to do; has no discretion about what he can
or cannot do; and is responsible to an immediate superior who has
control over his acts);
2. Can be depended upon to carry out his principal’s directions
to give testimony at the demand of a party engaged in litigation with
his principals; and
3. Can be expected to identify himself with the interests of his
principal rather than those of the other party.”
Brandon v. Art Centre Hospital (Osteopathic), 366 F.2d 369, 372 (6th Cir. 1966) citing
Newark Insurance Company v. Sartain, 20 F.R.D. 583, 586 (N.D. Cal. 1957). Regarding
the application of Fed. R. Civ. P. 4(h)(1), the court determined that "[A] managing agent
[as] one authorized to transact all business of a particular kind at a particular place and
must be vested with powers of discretion rather than being under direct superior
control." John B. v. Goetz, 879 F.Supp.2d 787, 859 (M.D. Tenn. 2010) citing Bridgeport
Music Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 624 (6th Cir. 2004).
Per the Plaintiff’s memorandum, and the state statute it references, the duties of a
principal include: “authorization to make management decisions within the school unit that
are consistent with law, and SCS board policy, supervis[ing] the operation and
management of the assigned facilities and personnel, and perform[ing] duties as assigned
by the Superintendent or designee.” D.E. # 152-1. pp2-3; Tenn. Code Ann. § 49-2-
303(b)(1)-(2), (4)-(5) (2020). However, as both parties concede, there is no specific
language expressly attributing these duties to the assistant principal nor indicating that
assistant principals are grandfathered in under the term “principal” by either the state
legislature or the Board of Education’s policy. D.E. # 151, p3; D.E. # 153, pp2-3. This
uncertain extent of Howard’s authority prevents an accurate application of the 6th Circuit’s
standard under Fed. R. Civ. P. 4(h)(1) as well, because neither party has provided clarity
regarding the extent of his “authority to transact all business of a particular kind,” in either
the complaint or the memoranda. Id. Whereas the non-party witness in Bridgeport Music
was a contractor with express responsibilities to secure musical contracts but limited
discretion that prevented major decisions like price setting, here neither the board policy
nor applicable statutes defines the boundaries between a principal and an assistant
principal. D.E. # 152-1, pp2-3; Tenn. Code Ann. § 49-2-303(b)(1)-(2), (4)-(5) (2020).
Thus, under the Sixth Circuit standard, Howard is not deemed a managing agent for
purposes of Fed.R.Civ.P (d)(1)(A)(i) and sanctions are not available under Fed.R.Civ.P
37(d)(3).
The Motion to Compel is DENIED.
IT IS SO ORDERED this 28th day of October, 2020.
s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE