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Alexander v. 1328 Uptown, Inc.

United States District Court, D. Minnesota

October 7, 2019

D'Andre I. Alexander, Plaintiff,
v.
1328 Uptown, Inc., Fortney Hospitality Group, Inc., and Fortney Companies, Inc., Defendants.

          ORDER

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants Fortney Hospitality Group, Inc. and Fortney Companies, Inc.'s (collectively, the “Fortney Entities”) Motion to Quash Depositions and for Protective Order (Dkt. 38); Defendant 1328 Uptown, Inc.'s (“1328 Uptown” or “Bar Louie”) Motion for Protective Order (Dkt. 53); and Plaintiff D'Andre I. Alexander's (“Alexander”) Motion to Compel (Dkt. 59). The Court held a hearing on the motions on July 19, 2019, at which counsel presented their arguments. (Dkt. 76, 79.) On July 24, 2019, Alexander filed a letter informing the Court that the disputes had been resolved as to certain interrogatories, requests for admission, and requests for production to 1328 Uptown. (Dkt. 77.) For the reasons stated below, each of the motions are granted in part and denied in part.

         I. BACKGROUND

         Alexander brought this case against Defendants on June 4, 2018, alleging negligence, innkeeper's liability, negligence per se, negligent undertaking, negligent infliction of emotional distress, and violation of Minn. Stat. § 340A.801 (Minnesota's Dram Shop Act). (Dkt. 1.) The Complaint alleges that Alexander suffered permanent injuries when Eddie Burch, whom 1328 Uptown allegedly overserved alcohol, shot Alexander after an altercation at 1328 Uptown on June 25, 2017.[1] (Id. ¶¶ 10-51.) As addressed in this Court's June 20, 2019 Order, the Complaint “does not allege that Fortney Hospitality Group, Inc. or Fortney Companies, Inc. is an alter ego of 1328 Uptown or make any allegations as to piercing the corporate veil.”[2] (Dkt. 47 at 2.) Instead, the Complaint alleges that Fortney Hospitality Group is a franchisee of Bar Louie and that “Defendants owned and operated Bar Louie Uptown.” (Dkt. 1 ¶¶ 5-6.) According to Fortney Hospitality Group's Rule 7.1 disclosure, Fortney Hospitality Group is the parent corporation of 1328 Uptown. (Dkt. 11.)

         In the June 20, 2019 Order, the Court denied in part Alexander's Motion to Modify the Pretrial Scheduling Order (Dkt. 34) to permit Alexander to take discovery regarding piercing 1328 Uptown's corporate veil such that the Fortney Entities could be held liable for 1328 Uptown's acts (“veil-piercing discovery”) and extend the deadline for amending the pleadings to allege a veil-piercing theory because Alexander had not met the diligence requirement of Rule 16.[3] (Dkt. 47 at 6-11.) The Court granted the motion to extend fact discovery to August 15, 2019 as to the depositions of Burch and six of 1328 Uptown's witnesses to which the parties had already stipulated to an extension. (Id. at 11.) No. party filed objections to the June 20, 2019 Order under Local Rule 72.2(a).

         On April 26, 2019, before Alexander brought his Motion to Modify the Pretrial Scheduling Order, Alexander served deposition notices for Eric Fortney, Marc Fortney, Carol Fortney, Ronald Fortney, and Mary Lin Wershofen on the Fortney Entities. (Dkt. 50-1, Exs. 3-7.) The depositions were noticed for several days in May 2019 to take place at the offices of Alexander's counsel in Minneapolis, Minnesota. (Id.) On May 15, 2019, Alexander served deposition notices of Eric Fortney, Marc Fortney, and Mary Lin Wershofen on 1328 Uptown to take place in La Crosse, Wisconsin on June 10, 2019; May 30, 2019; and May 29, 2019, respectively. (Dkt. 50-1, Exs. 9-11.) The Fortney Entities' motion seeks an order quashing these depositions and for a protective order precluding or alternatively limiting veil-piercing discovery, including with respect to certain written discovery served by Alexander.[4] (Dkt. 38; Dkt. 48 at 10-12.)

         On July 3, 2019, 1328 Uptown filed its motion seeking a protective order to limit discovery propounded on it by Alexander, including interrogatories, requests for admission, and requests for production. (Dkt. 53; Dkt. 55.) On July 4, 2019, Alexander filed a cross motion to compel as to 1328 Uptown and the Fortney Entities related to his interrogatories, requests for admission, and requests for production. (Dkt. 59.)

         At the July 19, 2019 hearing, Alexander and 1328 Uptown informed the Court that they may have resolved their dispute as to certain discovery. In his July 24, 2019 letter, Alexander informed the Court that he and 1328 Uptown had resolved their dispute as to Interrogatory No. 7, Request for Admission Nos. 10-12 and 17, and Request for Production No. 16(c). (Dkt. 77.) Disputes still remain between them as to Request for Production Nos. 1, 12, 18, and 27-44, Interrogatory Nos. 25-33, and Request for Admission Nos. 2, 5, 7, 9, and 13-16. (Id.)

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 26 sets forth the scope of discovery in general:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1).

         However, Rule 26(b)(2) provides that a court “may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30.” Fed.R.Civ.P. 26(b)(2)(A). “By order or local rule, the court may also limit the number of requests under Rule 36.” Id. In addition, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C)(iii).

         When a party seeks a protective order, “[t]he court may, for good cause, issue an order to protect a party or person from . . . undue burden or expense, including one or more of the following . . . (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters . . . .” Fed.R.Civ.P. 26(c)(1). The burden is on the movant to show the “good cause” required for issuance of the protective order. Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973). “To make this showing, the moving party cannot rely on broad or conclusory allegations of harm.” Northbrook Digital, LLC v. Vendio Servs., Inc., 625 F.Supp.2d 728, 757 (D. Minn. 2008) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981)). “However, ‘a showing of irrelevancy of proposed discovery can satisfy the “good cause” requirement of Rule 26(c).'” Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 237 (D. Minn. 2013) (quoting Smith v. Dowson, 158 F.R.D. 138, 140 (D. Minn. 1994)). “Information is generally discoverable ‘unless it is clear that the information sought has no bearing upon the subject matter of the action.'” Id. (quoting Sinco, Inc. v. B & O Mfg., Inc., Civ. No. 03-5277, 2005 WL 1432202, at *1 (D. Minn. May 23, 2005)). The Eighth Circuit has held, nonetheless, that the proponent of the discovery must make a “threshold showing of relevance . . . before parties are required to open wide the doors of discovery, ” in order to limit “fishing expeditions in discovery.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         Federal Rule of Civil Procedure 37 provides that “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed.R.Civ.P. 37(a)(1). In particular, “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” Fed.R.Civ.P. 37(a)(3)(B). A district court's rulings on discovery matters are reviewed by the Eighth Circuit under an abuse of discretion standard. Jackson v. Allstate Ins. Co., 785 F.3d 1193, 1202 (8th Cir. 2015) (citing Harvey v. Schoen, 245 F.3d 718, 720-21 (8th Cir. 2001)).

         III. DISCUSSION

         A. Scope of Discovery

         Before turning to the specific issues set forth in the motions before the Court, the Court first addresses the scope of discovery under Rule 26(b)(1) and the elements of certain of Alexander's claims, as they underpin most of the parties' arguments with respect to the pending motions.

         As a preliminary matter, the Court addresses Alexander's misstatement of the scope of discovery under Rule 26(b)(1). Under the current version of Rule 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . .” Fed.R.Civ.P. 26(b)(1). Alexander, however, relies on the pre-2015 version of Rule 26 and cases interpreting pre-2015 versions of Rule 26 in his briefs. (E.g., Dkt. 64 at 4 (stating: “Under Federal Rule of Civil Procedure 26(b)(1), Plaintiff is entitled to discovery of ‘any matter, not privileged, which is relevant to the subject matter involved in the pending action.'”); Dkt. 71 at 6 (“The general scope of discovery, under Fed.R.Civ.P. 26(b)(1), ‘has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.'”) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).) In his opposition to 1328 Uptown's motion for protective order, Alexander did correctly state the current standard under Rule 26(b)(1), but continued to rely on cases interpreting pre-2015 versions of Rule 26. (See Dkt. 74 at 2.) Some courts have found that “[i]n light of the fact that Rule 26(b)(1) now limits discovery to information relevant to ‘claims and defenses and proportional to the needs of the case,' the Oppenheimer Fund definition, like the version of Rule 26(b)(1) that preceded the 2015 amendments, is now relegated only to historical significance.” San Diego Unified Port Dist. v. Nat'l Union Fire Ins. Co. of Pittsburg, PA, No. 15cv1401-BEN-MDD, 2017 WL 3877731, at *1 (S.D. Cal. Sept. 5, 2017). Here, the Court applies the current version of Rule 26 to the disputed issues (as it must) and considers the effect of the 2015 amendment to Rule 26 on pre-2015 cases when making its rulings.

         Next, the Court addresses Alexander's arguments regarding relevance to the extent they are based on the elements of an innkeeper's liability claim as set forth in Henson v. Uptown Drink, LLC, 922 N.W.2d 185 (Minn. 2019), his claim under Minnesota's Dram Shop Act, and Section 317 of the Restatement (Second) of Torts.[5]

         First, relying on Henson, Alexander repeatedly asserts that certain discovery is relevant to his innkeeper's liability claim because the information he seeks is probative of the “notice” element of his innkeeper's liability claim and thus the foreseeability of Alexander's injury. (E.g., Dkt. 64 at 8-9, 11, 21, 29-30; Dkt. 71 at 7-8; Dkt. 74 at 3-4.) Henson provides: “There are four elements to a claim of innkeeper negligence: (1) notice of the offending party's ‘vicious or dangerous propensities' by ‘some act or threat,' (2) adequate opportunity for the innkeeper to protect the injured patron, (3) failure on the part of the innkeeper to take reasonable steps to do so, and (4) foreseeable injury.” 922 N.W.2d at 190 (citing Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997)). “[W]hen the totality of the facts and circumstances put the innkeeper on notice, [the Minnesota Supreme Court has] held that there was a duty based on foreseeability.” Id. at 192.

         Alexander frames the “foreseeability” at issue for his innkeeper's liability claim as “[t]he foreseeability of one of 1328's patrons injuring another patron . . . .” (Dkt. 64 at 8; see also Id. at 28 (arguing that he is entitled to know “whether Defendants were on notice of potential injuries to its patrons prior to the incident”).) In other words, Alexander generalizes “foreseeability” to encompass the foreseeability that any patron might be injured by another patron, not that Burch might injure Alexander. He then contends that much of his discovery-including discovery into past incidents of violence at 1328 Uptown, historical employee training and security operations, the ratio of food to alcohol sales, and whether 1328 Uptown was sufficiently capitalized and funded-is relevant to foreseeability because the notice determination is based on the “totality of the facts and circumstances.” (E.g., Dkt. 64 at 11, 16; Dkt. 74 at 4; Dkt. 71 at 8.) Defendants respond that the “foreseeability” at issue in Henson is the foreseeability of Burch's conduct on the night of June 25-26, 2017, and whether it would cause injury to Alexander, not the generalized “foreseeability” asserted by Alexander. (See, e.g., Dkt. 65 at 7.)

         Henson does not support Alexander's generalized view of “foreseeability.” It is clear in Henson that the “notice” that would lead to a duty based on foreseeability is the “notice of the offending party's vicious or dangerous propensities by some act or threat.” 922 N.W.2d at 190 (emphasis added and quotation marks omitted); see also Minks v. Cherry, No. A06-1166, 2007 WL 1053501, at *2 (Minn.Ct.App. Apr. 10, 2007) (“A prerequisite to foreseeability of injury is notice. If the court concludes that the bar owner had no notice of the person's violent tendencies, then the court must find that no duty to protect existed, because the assault would not have been foreseeable to a reasonable bar owner.”) (emphasis added) (citing Alholm v. Wilt, 394 N.W.2d 488, 491 n.5 (Minn. 1986)). In Henson, that analysis of the “totality of the facts and circumstances” that might have put the innkeeper on notice and result in a duty based on foreseeability focused on the offending party's conduct. See 922 N.W.2d at 192-93. While this does not render all discovery irrelevant unless it is focused solely on Burch's conduct, the Court considers the parties' arguments regarding relevance and proportionality in the context of whether 1328 Uptown had notice of Burch's tendencies and propensities.

         Second, Alexander argues that his discovery directed to employee training and service decisions is relevant to his dram shop claim. For example, he asserts that “the training that was in place [at 1328 Uptown], who developed the training methods and materials, and who approved the same” are relevant to his dram shop claim. (Dkt. 64 at 33; see Dkt. 71 at 10 (arguing “the necessity and opportunity to control its 1328 bartenders' alcohol service decisions” is relevant to dram shop claim); Dkt. 74 at 8 (“1328's bar had been sued in the past for violating the Dram Shop Act, thus it should have known of the necessity of controlling its bartenders' alcohol service decisions, by allocating resources to training its bartenders on safe alcohol service”).) Minnesota's Dram Shop Act requires a plaintiff to “first prove that the sale of alcohol was illegal under Minn. Stat. ch. 340A” and also “show by competent proof that the illegal sale of alcohol caused or contributed to the intoxication and was a proximate cause of the plaintiff's injuries.” Henson, 922 N.W.2d at 190 (cleaned up). Here, the relevant portion of Minnesota Statutes chapter 340A provides: “No person may sell, give, furnish, or in any way procure for another alcoholic beverages for the use of an obviously intoxicated person.” Minn. Stat. § 340A.502. Employee training and control of alcohol service decisions are not elements of his dram shop claim, and Alexander has not cited any case where those factors were considered when determining whether a patron was “obviously intoxicated” or in the context of a dram shop claim. Further, the Dram Shop Act imposes strict liability on a defendant bar owner, Hannah v. Jensen, 298 N.W.2d 52, 54 (Minn. 1980), “without regard to fault in the sense of any wrongful intent or negligent conduct” Heveron v. Vill. of Belgrade, 181 N.W.2d 692, 695 (Minn. 1970) (cleaned up). The Court views Alexander's relevance and proportionality arguments through the lens of the claim's elements, not through Alexander's proposed training and control lens.

         Third, Alexander relies on the Restatement (Second) of Torts § 317 to support his relevance arguments. (E.g., Dkt. 71 at 3; Dkt. 74 at 3.) Section 317 provides that under certain circumstances, “A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them.” Restatement (Second) of Torts § 317 (1965) (emphasis added). According to Alexander, “[a] fact of consequence in establishing an employer's duty to control its employees is whether the employer knew or should have known of the necessity and opportunity for exercising such control.” (Dkt. 71 at 8.) At the hearing, 1328 Uptown argued that § 317 was inapplicable because it has not raised as a defense that any of its employees were acting outside of the scope of their employment.

         Comment A to § 317 provides in part: “The rule stated in this Section is applicable only when the servant is acting outside the scope of his employment.” Restatement (Second) of Torts § 317, cmt. A. Because no defendant has raised the defense that any 1328 Uptown employee was acting outside of the scope of their employment, § 317 does not provide a sound basis for relevance arguments.

         Having addressed these issues, the Court turns to the specific motions.

         B. The Fortney Entities' Motion to Quash Depositions and for Protective Order

         The Fortney Entities seek to quash the deposition notices of Eric Fortney, Marc Fortney, Carol Fortney, Ronald Fortney, and Mary Lin Wershofen. (Dkt. 48 at 1.) They also seek a protective order precluding Alexander from engaging in any veil-piercing discovery. (Id.)

         The Court first considers the Fortney Entities' motion to quash depositions. The Fortney Entities contend that the deposition notices should be quashed because Alexander did not allege a veil-piercing theory in his Complaint and the Court has denied Alexander's motion for an extension of time to conduct veil-piercing discovery and to amend his Complaint to add a veil-piercing theory. (Id. at 5-9.) Alexander responds that the individuals whose depositions were noticed are relevant to his claims against Defendants for their roles in the management and operation of 1328 Uptown for several reasons. (Dkt. 71 at 1.) First, Marc Fortney is the President of 1328 Uptown and Fortney Hospitality Group; Eric Fortney, Marc Fortney, Carol Fortney, and Ronald Fortney hold director/officer positions at Fortney Hospitality Group; and Marc Fortney and Eric Fortney are listed as officers/directors of 1328 Uptown, as sources of experience for 1328 Uptown, and as “owners” in manuals provided to 1328 Uptown employees. (Dkt. 71 at 2-3; see also Dkt. 72-1, Ex. 34 at 63, 65; Dkt. 36-2, Ex. 2 at 1; Dkt. 36-5, Exs. 4, 5; Dkt. 36-7, Ex. 7 at 4.)[6] Second, 1328 Uptown identified Eric Fortney, Marc Fortney, and Mary Lin Wershofen as persons likely to have discoverable information in their Initial Disclosures. (Dkt. 71 at 9; see also Dkt. 72-2, Ex. 35 at 1.) Third, Mary Lin Wershofen, who verified 1328 Uptown's and the Fortney Entities interrogatory responses, is the Fortney Entities Manager of Human Resources (Dkt. 71 at 11-12; see also Dkt. 61-3, Ex. 14 at 24; Ex. 61-4 at 2, 14, Ex. 15 at 2, 14), and has received at least one email in the past from 1328 Uptown regarding a fight at that establishment that resulted in the police being called (see Dkt. 36-8, Ex. 8). Fourth, Alexander argues that Carol Fortney is Fortney Hospitality Group's treasurer and was identified by the Fortney Entities in their Initial Disclosures as someone who “may have discoverable information regarding FHG and [FC's] defense that they are not proper defendants in this action, also knowledge of the corporate ownership of named Defendants.” (Dkt. 71 at 10-11; see Dkt. 72-3, Ex. 36 at 3.)

         The Fortney Entities have repeatedly asserted their intention to seek their dismissal from this case, including at the Rule 16 conference and in connection with Alexander's Motion to Modify the Pretrial Scheduling Order. (See, e.g., Dkt. 40 at 9.) However, they had not sought dismissal when these motions were brought and remain named defendants in this case. (Dkt. 48 at 9 & n.2; Dkt. 66 at 4 n.2.) The Court is cognizant that “[i]t is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.” Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (citations omitted). Further, several of the noticed individuals have officer/director/managerial roles at 1328 Uptown as well as at the Fortney Entities and were identified in 1328 Uptown's or the Fortney Entities' initial disclosures as persons having knowledge they may use to support their claims or defenses in this action. However, at the June 14, 2019 hearing on Alexander's Motion to Modify the Pretrial Scheduling Order, when the Court asked counsel for Alexander what issues the depositions that were the subject of the motion to quash were relevant to, counsel responded that the depositions were “almost substantially oriented toward piercing.” (June 14, 2019 Hr. at 11:22:45 a.m. - 11:23:14 a.m.) Thus, the purpose of these depositions-whether in the individuals' capacity at the Fortney Entities or at 1328 Uptown-appears mainly directed to a veil-piercing claim that is not pleaded in the Complaint. Further, this Court has already denied Alexander's motion seeking an extension of the pretrial schedule to permit veil-piercing discovery with the goal of amending his Complaint to add a veil-piercing theory due to lack of diligence. (See generally Dkt. 47.)

         Taking all of these factors into consideration, the Court will deny the Fortney Entities' motion to quash in part and grant the motion in part. The Court denies the motion as to Eric Fortney, Marc Fortney, Carol Fortney, and Mary Lin Wershofen for the following reasons: Not only are Eric Fortney and Marc Fortney officers/directors of Fortney Hospitality Group, but Alexander has sufficiently shown some involvement with 1328 Uptown, either in their roles as officers/directors at a Fortney Entity or as officers/directors of 1328 Uptown. Mary Lin Wershofen is the Human Resources Manager at the Fortney Entities, verified their interrogatory responses, and has received at least one email in the past from 1328 Uptown regarding a fight at that establishment that resulted in the police being called. Moreover, 1328 Uptown identified Eric Fortney, Marc Fortney, and Mary Lin Wershofen as persons likely to have discoverable information in their Initial Disclosures. Finally, Carol Fortney is the treasurer of Fortney Hospitality Group and was identified in the Fortney Entities' Initial Disclosures as a person who may have information to support their defenses in this action, specifically regarding the Fortney Entities' defense that they are not proper defendants in this action. As the Fortney Entities intend to seek dismissal on the grounds that they are not proper defendants in this action, Alexander is entitled to depose the witnesses they identified as having information that may support that defense.

         However, the Court will grant the motion as to Ronald Fortney. The only explanation Alexander provided for his deposition is that he is an owner and officer/director of Fortney Hospitality Group and he (along with Eric Fortney and Marc Fortney) was previously sued in a franchise dispute involving 1328 Uptown. (Dkt. 71 at 3, 9-10.) Alexander has not identified any information Ronald Fortney may have that is relevant to an issue in this case and that would not be cumulative or duplicative of information held by Eric Fortney or Marc Fortney. See Fed. R. Civ. P. 26(b)(2)(C)(i). If, after Alexander has completed the permitted depositions, he is able to identify specific information relating to the claims and defenses in this action in the possession of Ronald Fortney that was not in the possession of other deponents, he may seek leave of Court to depose Ronald Fortney. Accordingly, the Court grants in part and denies in part the Fortney Entities' Motion to Quash (Dkt. 38). Only one deposition of each of those witnesses shall be permitted. See Fed. R. Civ. P. 30(a)(2)(A)(ii). Finally, as Alexander agreed that the depositions may take place in La Crosse, Wisconsin (Dkt. 71 at 14), the Fortney Entities' objections based on the noticed location are now moot. Alexander has six weeks from the date of this Order to conduct those depositions, and eight weeks from the date of this Order to seek leave to depose Ronald Fortney.

         The Fortney Entities also seek a protective order “limiting and precluding Plaintiff from engaging in discovery aimed at piercing the corporate veil of any of the corporate defendants.” (Dkt. 48 at 1.) It is undisputed that the operative Complaint does not allege a veil-piercing theory, and the Court denied Alexander's Motion to Modify the Pretrial Scheduling Order to permit veil-piercing discovery with the goal of amending the Complaint to allege veil-piercing. (Dkt. 37.) Thus, veil-piercing discovery is not relevant to any claim or defense in this action, and that lack of relevance satisfies the “good cause” requirement of Rule 26(c). See Shukh, 295 F.R.D. at 237; see also Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”); Misc. Dkt. Matter No. 1 v. Misc. Dkt. Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (citing Fed.R.Civ.P. 26(b)(1)) (“The district court correctly recognized that discovery may not be had on matters irrelevant to the subject matter involved in the pending action . . . .”). The Court therefore grants the Fortney Entities' motion for a protective order precluding veil-piercing discovery.

         Accordingly, consistent with the June 20, 2019 Order denying Alexander's Motion to Modify the Pretrial Scheduling Order, Alexander's examination of Eric Fortney, Marc Fortney, Carol Fortney, and Mary Lin Wershofen shall not include questions directed to veil-piercing. In taking and defending these depositions, counsel should be guided as to relevance and proportionality by the Court's rulings on written discovery in this Order. The Court addresses which of Alexander's written discovery is precluded by this ruling below.

         C. Alexander's Written Discovery to the Fortney Entities

         Alexander moves to compel with respect to the following discovery served on the Fortney Entities: (1) Interrogatory Nos. 4-30[7]; (2) Request for Production Nos. 2, 5-30, 32; and (3) Request for Admissions Nos. 1-14. (Dkt. 64 at 26.) Because the discovery served on each Fortney Entity is identical except for the entity's name (compare Dkt. 61-4, with Dkt. 61-5; compare Dkt. 61-6, Ex. 17, with Dkt. 61-7, Ex. 18; compare Dkt. 61-14, Ex. 25, with Dkt. 61-15, Ex. 26), and the parties did not distinguish between the discovery served on each Fortney Entity in their briefs, the Court does the same in this Order. The Court addresses each set of discovery below.

         1. Interrogatories

         Alexander moves to compel the Fortney Entities to respond to Interrogatory Nos. 4-30. The Court reproduces each interrogatory below.

Interrogatory No. 4
For each person who presently owns stock in [Fortney Companies, Inc./Fortney Hospitality Group, Inc.], state:
(a) their full name, home address, home telephone number, as well as each business address and each business telephone number.
(b) the date(s) upon which the person acquired their shares.
(c) the consideration paid or promised for the shares and the date(s) on which it was paid or promised.
(d) the number of shares owned and the percentage of shares owned as measured against the total outstanding shares of the corporation.
(e) whether the person is related by blood or marriage to any other person who is or has been a shareholder, officer, or director of [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] and, if so, the identity of the other person and the nature of the relationship.
Interrogatory No. 5
Excluding those identified in your answer to the previous Interrogatory, identify each person who has owned stock in [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] at any time during the past five years prior to the incident and for each such person, state:
(a) their full name, home address, home telephone number, as well as each business address and each business telephone number.
(b) the date(s) upon which the person acquired their shares.
(c) the consideration paid or promised for the shares and the date(s) on which it was paid or promised.
(d) the date(s) upon which the person transferred their shares and the identity of the transferee, including their full name, home address, home telephone number, as well as each business address and each business telephone number.
(e) the number of shares owned and the percentage of shares owned as measured against the total outstanding shares of the corporation.
(f) whether the person is related by blood or marriage to any other person who is or has been a shareholder, officer, or director of [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] and, if so, the identity of the other person and the nature of the relationship.
Interrogatory No. 6
Summarize how [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] was capitalized upon its incorporation, including:
(a) the identity of each person or entity who purchased or subscribed to stock in [Fortney Companies, Inc./Fortney Hospitality Group, Inc.]
(b) the number of shares purchased or subscribed by each such person or entity.
(c) the amount paid or promised for the shares purchased or subscribed by each such person or entity and the date(s) of each such payment.
Interrogatory No. 7
Identify each person who has served as an officer, director and/or management-level employee of [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] at any time during the past five years prior to the incident and for each such person, state:
(a) their full name, home address, home telephone number, as well as each business address and each business telephone number.
(b) the office(s) or position(s) held and the applicable dates.
(c) the salary, benefits, and any other compensation paid to the person during each of the past five years.
Interrogatory No. 8
Identify any actual stock certificates issued by [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] to any shareholder and whether [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] paid any dividends to stockholders during the past five years. If so, state:
(a) the identity of each person to whom certificates were issued. (b) the dates on which the certificates were issued.
(c) the identity of each shareholder receiving a dividend. (d) the dates on which the dividends were paid.
(e) the amount of the dividends.
(f) how the dividends were paid.
Interrogatory No. 9
Has any shareholder, officer, or director of [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] ever loaned money to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.]? If so, for each such loan, state:
(a) the identity of the person making the loan.
(b) the date of the loan.
(c) the amount of the loan.
(d) whether there was a written loan agreement, promissory note, or similar document.
(e) the date and amount of each payment that [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] made on the loan.
(f) the interest rate, if any.
(g) the balance still owed by [Fortney Companies, Inc./Fortney Hospitality Group, Inc.], if any.
Interrogatory No. 10
Has [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] ever loaned money to any shareholder, officer, or director of [Fortney Companies, Inc./Fortney Hospitality Group, Inc.]? If so, for each such loan, state:
(a) the identity of the person to whom the loan was made.
(b) the date of the loan.
(c) the amount of the loan.
(d) whether there was a written loan agreement, promissory note, or similar document.
(e) the date and amount of each payment that the borrower has made to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] on the loan.
(f) the interest rate, if any.
(g) the balance still owed to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.], if any.
Interrogatory No. 11
Excluding those people identified in your answer to the previous Interrogatory, has [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] ever loaned money to any other person or entity? If so, for each such loan, state:
(a) the identity of the person or entity to whom the loan was made.
(b) the date of the loan.
(c) the amount of the loan.
(d) whether there was a written loan agreement, promissory note, or similar document.
(e) the date and amount of each payment that the borrower has made to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] on the loan.
(f) the interest rate, if any.
(g) the balance still owed to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.], if any.
Interrogatory No. 12
Did [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] ever advance funds to any shareholder, officer, employee, or director for services to be performed later? If so, for each such advance, state:
(a) the identity of the person to whom the funds were advanced.
(b) the date of the advance.
(c) the amount of the advance.
(d) the services to be performed, whether they were performed and when they were performed.
Interrogatory No. 13
Did any person or entity ever guaranty or cosign any obligation of [Fortney Companies, Inc./Fortney Hospitality Group, Inc.]? If so, for each such action, state:
(a) the identity of the person or entity, including their home address, home telephone number, business address, and business telephone.
(b) the identity of the creditor or lender, including their business address and business telephone number.
(c) the nature of the obligation and the total amount of the obligation.
(d) the date on which the person or entity guaranteed or cosigned the obligation.
Interrogatory No. 14
Did [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] ever guaranty or cosign the obligations of any other person or entity? If so, for each such action, state:
(a) the identity of the person or entity for whom [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] guaranteed or cosigned on the obligation, including their home address, home telephone number, business address, and business telephone.
(b) the identity of the lender, including their business address and business telephone number.
(c) the nature and amount of the obligation.
(d) the date on which [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] guaranteed or cosigned the obligation.
(e) Fortney Companies, Inc.'s/Fortney Hospitality Group, Inc.'s reasons for guaranteeing or cosigning the obligation.
Interrogatory No. 15
Does [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] now maintain, or has it within the past five years prior to the incident maintained, any bank accounts? If so, for each such account, state:
(a) the identity of the financial institution at which the account is or was maintained, including the business address and business telephone number of the institution.
(b) the account numbers.
(c) the date the account was opened.
(d) the date the account was closed, if applicable.
(e) the identity of each person authorized to sign checks or access the account on behalf of [Fortney Companies, Inc./Fortney Hospitality Group, Inc.]
(f) the current balance in the account.
Interrogatory No. 16
With regard to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.], have there been any shareholder meetings during the past five years? If so, for each such meeting, state:
(a) the date, time, and location of the meeting.
(b) the identity of each person in attendance at the meeting.
Interrogatory No. 17
With regard to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.], have there been any meetings of the Board of Directors during the past five years prior to the incident? If so, for each such meeting, state:
(a) the date, time, and location of the meeting.
(b) the identity of each person in attendance at the meeting.
Interrogatory No. 18
Has [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] made gifts to any person or entity during the past five years? If so, for each such gift, state:
(a) the identity of the recipient.
(b) whether it was a monetary gift or a gift of some other property and a brief description of what was given.
(c) the date of the gift.
(d) Fortney Companies, Inc.'s/Fortney Hospitality Group, Inc.'s reasons for making the gift.
Interrogatory No. 19
During the past five years prior to the incident, has [Fortney Companies, Inc./Fortney Hospitality Group, Inc.] forgiven any debts owed to it? If so, for each such debt, state:
(a) the identity of the person or entity indebted to [Fortney Companies, Inc./Fortney Hospitality Group, Inc.]
(b) the amount of the debt.
(c) the amount of debt forgiven.
(d) the date on which the debt was ...

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