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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Kim Cramton, 

Plaintiff, 

v. 

Grabbagreen Franchising LLC, et al., 

Defendants.

No. CV-17-04663-PHX-DWL

ORDER 

 The deposition of Plaintiff Kim Cramton (“Cramton”) took place on December 13, 

2018. Afterward, Defendants filed a motion asking the Court to authorize three additional 

hours of deposition time. (Doc. 107.) In this motion, Defendants didn’t suggest Cramton 

had been evasive during her deposition—they simply argued they hadn’t been able to cover 

all of the relevant topics during the seven-hour deposition window. (Id.) In an order issued 

on December 28, 2018, the Court denied Defendants’ request, concluding they hadn’t 

demonstrated the “good cause” necessary to justify exceeding the presumptive seven-hour 

limit on depositions. (Doc. 108.) 

 Now pending before the Court is Defendants’ motion for reconsideration of the 

December 28, 2018 order. (Doc. 136.) Defendants’ main argument is that, since January 

2019, they have come into possession of four categories of information they should have 

been permitted to utilize when questioning Cramton during her deposition. Defendants 

further contend that Cramton bears the blame for the belated disclosure of this new 

information. Finally, Defendants also argue that, although they didn’t mention it in their 
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initial request for more time, Cramton was evasive during her deposition and that 

evasiveness provides additional reason to grant reconsideration. 

 Cramton opposes Defendants’ request. (Doc. 157.) In a nutshell, she disputes the 

suggestion that she was at fault for the late disclosures discussed in Defendants’ motion 

and argues that, in any event, Defendants were free to inquire about those topics during her 

deposition and made a tactical choice not to do so. Cramton also vigorously disputes 

Defendants’ suggestion that she was evasive during her deposition. 

 The Court concludes that, although not all of Defendants’ arguments have merit, 

they have done enough to demonstrate that “good cause” exists for authorizing three 

additional hours of deposition time. Defendants’ arguments concerning Cramton’s 

minimum wage claim are most persuasive. In her verified MIDP response, Cramton stated 

that “Defendants did not pay Cramton for any of her employment services from December 

1, 2016 until her constructive discharge in September of 2017. Cramton worked 

approximately 40 hours or more per week during this time period for which she was not 

compensated.” (Doc. 136 at 17, emphasis added.) Elsewhere in the MIDP response, 

Cramton utilized this 40-hours-per-week figure when calculating her claimed damages of 

$31,376: “Unpaid wages on Cramton’s minimum wage claim in the amount of $15,688 . . 

. between January 1 and September 24, 2017, which assumes . . . 38 weeks @ 40 hours per 

week/$10 per hour . . .; double that amount per A.R.S. § 23-364, $31,376.” (Doc. 136 at 

18, emphasis added.) This was apparently the only information Defendants had on this 

issue at the time they deposed Cramton in December 2018. Yet a few months after her 

deposition, Cramton authored a declaration claiming that “[i]n 2017, I regularly worked 

60-80 hour weeks.” (Doc. 136 at 22 ¶ 25, emphasis added.) Cramton then submitted this 

declaration in support of her motion for summary judgment, which argues she is entitled 

to $54,499 on her minimum wage claim—not $31,376 as stated in her MIDP response—

and calculates this figure using a multiplier of “at least 60 hours per week.” (Doc. 142 at 

13 & n.12.) 

 These circumstances provide good cause to reopen Cramton’s deposition. First, 
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Cramton utterly fails to explain (let alone justify) why her testimony on this key point 

diverged so dramatically from the time she verified her MIDP response to the time she 

completed her post-deposition declaration. In her response brief, she contends her 

statements on this topic aren’t really in conflict because the MIDP response said she 

worked 40 hours “or more” each week and 60-80 hours is more than 40 hours. (Doc. 157 

at 4.) This argument is specious. The MIDP response stated she worked “approximately 

40 hours or more.” The word “approximately” would be drained of all meaning if a party 

were allowed to say that “approximately 40 hours” is the same thing as 60-80 hours. 

Moreover, Cramton doesn’t address the fact that she also used this 40-hour figure in the 

damage-calculation section of the MIDP response. Second, the belated disclosure of this 

information was prejudicial to Defendants’ formulation of their deposition strategy. 

Defense counsel had no reason to question Cramton during her deposition about the 

number of hours she worked because this topic seemed to be straightforward and noncontroversial (a 40-hour workweek is standard). Thus, counsel could have, for tactical 

reasons, chosen to focus on other topics during the limited seven-hour deposition block. 

The new claims contained in Cramton’s post-deposition declaration, however, are outside 

the norm and also may have the effect of substantially increasing Defendants’ exposure—

Cramton’s own calculations suggest that her switch from a 40-hour week to a 60-hour week 

increased the value of her minimum wage claim by over $23,000 (from $31,376 to 

$54,499). Accordingly, Defendants should have an opportunity to question Cramton about 

her new claims. 

Defendants’ arguments concerning the phone logs also support reopening the 

deposition. First, Cramton’s argument that “Defendants did not issue a discovery request 

for those records and waited until 2 days before Ms. Cramton’s deposition to request them” 

(Doc. 157 at 5) is unpersuasive. Defendants’ RFP Nos. 14 and 17 requested all “documents 

that relate to any communication” between Cramton and Defendants’ employees—a 

formulation that would encompass call logs documenting phone calls between Cramton 

and Farrell. Additionally, there’s a strong argument these call logs should have been 
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produced pursuant to the MIDP without the need for a discovery request. Thus, Defendants 

can’t be faulted for failing to obtain the call logs before they deposed Cramton in December 

2018. Second, this is another instance where Defendants can persuasively show their 

deposition strategy would have been different had the call logs been produced before the 

deposition. The substance of the Cramton-Farrell calls is potentially important in this case 

and Defendants should have been able to depose Crampton about the calls with the call 

logs in hand. 

Defendants’ arguments concerning the Mavros deposition are less compelling. 

Defendants have long known that the substance of the Cramton-Mavros call was a 

potentially important issue in this case. Indeed, Cramton provided an interrogatory 

response in September 2018 recounting her version of this conversation. (Doc. 157 at 4.) 

Thus, Defendants were free to question Cramton about this conversation during her 

deposition in December 2018. To be sure, defense counsel’s strategy may have been 

different had counsel already deposed Mavros (whose deposition didn’t occur until January 

2019), because Mavros’s testimony about the phone call differed in potentially significant 

respects from Cramton’s interrogatory response describing the phone call. However, 

Cramton isn’t to blame for the late timing of Mavros’s deposition. Accordingly, if this 

were the only basis on which Defendants were seeking reconsideration, it’s unlikely the 

Court would find that it qualifies as “good cause” for reopening Cramton’s deposition. It 

would be chaos if a party could seek to re-depose all of the witnesses who’ve already been 

deposed in a case whenever a later deponent provides new, potentially helpful testimony. 

 Defendants’ arguments concerning the iPhone declaration are unavailing for similar 

reasons. Defendants have not persuaded the Court that Cramton was at fault for the 

allegedly late disclosure of information on this topic because they haven’t identified any 

discovery requests that encompassed it. 

Finally, Defendants’ arguments about Cramton’s alleged evasiveness during the 

original deposition also miss the mark. It must be remembered that Defendants are seeking 

reconsideration of the denial of their earlier request for additional deposition time. Motions 
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for reconsideration are generally disfavored and should be denied “absent a showing of 

manifest error or a showing of new facts or legal authority that could not have been brought 

to [the Court’s] attention earlier with reasonable diligence.” LRCiv. 7.2(g). Put another 

way, a motion for reconsideration “may not be used to raise arguments or present evidence 

for the first time when they could reasonably have been raised earlier in the litigation.” 

Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Here, Defendants 

acknowledge they could have raised Cramton’s alleged evasiveness in their original request 

for more time but “mistakenly decided not to raise this argument in favor of arguments 

based on the size and complexity of the case.” (Doc. 136 at 3.) This concession precludes 

any request for reconsideration. 

 Accordingly, IT IS ORDERED that: 

 (1) Defendants’ motion for reconsideration (Doc. 136) is granted; 

 (2) Defendants are authorized to depose Cramton for an additional three hours, 

by May 31, 2019; and 

 (3) The additional deposition need not be limited to the topics of the minimum 

wage claim and the Cramton-Farrell calls and may also encompass the topics of the 

Cramton-Mavros call and the iPhone/iCloud issues. 

 Dated this 30th day of April, 2019.