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Stacey Buchholtz v. Rogers Benefit Group

April 18, 2013


The opinion of the court was delivered by: David H. Bartick United States Magistrate Judge


On April 3, 2013, Plaintiff Stacey Buchholtz and Defendant Rogers Benefit Group, Inc. ("RBG") filed a document entitled "Joint Motions for Determination of Discovery Disputes: 1) Responses to Document Request; 2) Compliance With Subpoena; 3) Responses to Deposition Questions; and 4) Quash Subpoena for Psychological Records." (ECF No. 14.) The parties request the Court's assistance in resolving several discovery issues that have arisen among them that have not been resolved despite diligent meet and confer efforts.

After a thorough review of the parties' arguments and evidence, the Court issues the following Order to resolve the issues in dispute.


Plaintiff was employed by RBG as a Regional Sales Manager from February 2008 to August 5, 2011. (Compl., at ¶ 5; ECF No. 1-2.) She was hired at RBG with the promise that she would be promoted to manager of RGB's San Diego office. (Id.) Prior to working at RBG, Plaintiff worked for and was highly compensated by Warner Pacific Insurance Services, Inc. ("Warner Pacific"). (Id. at ¶ 6.) In January and February 2008, Dennis Sullivan, manager of RBG's San Diego office, approached Plaintiff and asked her to end her employment with Warner Pacific and instead work for RBG. (Id. at ¶ 7.) In order to induce Plaintiff to join RBG, Sullivan assured Plaintiff, both verbally and in writing, that she would be promoted to the position of manager in 2010. (Id. at ¶¶ 12-13.) Sullivan also set forth in writing the level of financial compensation that Plaintiff would receive during the years 2011 through 2014 after being promoted to manager in 2010. (Id. at ¶ 12.)

Sullivan's representations to Plaintiff were made in order to allow Sullivan and RBG to "avail themselves of Plaintiff's outstanding reputation, talents, and skills and reap the economic benefits thereof," including allowing Sullivan and RBG to "take over, and convert to their own control and for their own financial benefit, the broker relationships that Plaintiff had cultivated [while with Warner Pacific] and from which existing broker relationships Plaintiff derived substantial economic benefit." (Id. at ¶¶ 8-9.) However, Sullivan and RBG intentionally failed to disclose that RBG would not elevate Plaintiff to manager, that Sullivan did not intend to retire, and that even if Sullivan did retire Plaintiff would not be promoted to manager. (Id. at ¶ 10.)

As a result of the verbal and written representations made by Sullivan, Plaintiff ultimately agreed to leave Warner Pacific and begin working with RBG. (Id. at ¶ 13.) Plaintiff was also induced to transfer her existing broker relationships from Warner Pacific to RBG. (Id.) Plaintiff's performance for RBG was "exemplary in that [she] exceeded all sales expectations, exceeded all sales records for RBG San Diego, and grossed over $14.5 million in sales each year, 2008 and 2009." (Id. at ¶ 14.)

While employed by RBG, Plaintiff earned an annual salary and guaranteed bonus in excess of $176,549, plus benefits including twenty-one days of paid vacation per year. (Id. at ¶ 15.) Plaintiff accrued a total of eighty-four days of vacation while employed with RBG.

The parties initially acted in accordance with the promised expectation that Plaintiff would be promoted to manager, as demonstrated by RBG giving Plaintiff the largest office available, giving her the title of Special Representative (as opposed to other salespeople referred to as Field Representatives) and Plaintiff assuming managerial duties including overseeing others in the workplace, instituting policies and methods governing and tracking vacation time, purchasing office furniture, assuming expenditures in excess of $13,094.91 and recruiting a salesperson (i.e., Melissa Medve) of her own caliber and talent to replace her presence on the sales team. (Id. at ¶¶ 16-20.) In addition, RBG ordered and authorized the transfer of each of Plaintiff's twenty-nine broker relationships to Medve "leaving Plaintiff with just a handful of marginally productive broker relationships." (Id. at ¶ 21.)

Subsequent to the transfer of Plaintiff's broker relationships to Medve, RBG broke its promise of promoting Plaintiff to manager, and RBG refused to compensate Plaintiff the amount promised for the years 2011 through 2014. (Id. at ¶¶ 22-23.) RBG also refused to transfer the broker relationships back to Plaintiff, despite her requests so that she could continue to have an income. (Id. at ¶¶ 24-25.) RBG staff, particularly Sullivan, criticized Plaintiff's lack of earnings, openly mocked Plaintiff and subjected Plaintiff to humiliation and demeaning criticism. (Id. at ¶ 26.) RBG refused to fully reimburse Plaintiff for the $13,094.91 she expended on office furniture and other items. (Id. at ¶ 27.)

On August 5, 2011, RBG terminated Plaintiff after Sullivan presented her with a spreadsheet demonstrating that her earnings exceeded her sales, which was the result of RBG and Sullivan having converted Plaintiff's broker relationships and refusing to promote her to manager. (Id. at ¶ 28.) Since Plaintiff's termination, RBG has failed to compensate Plaintiff for waiting time penalties or wages earned, including salary, guaranteed bonus and accrued vacation days. (Id. at ¶¶ 29-30.)


The parties filed their joint motion requesting the Court's assistance in resolving four discovery disputes: (1) whether RBG should be compelled to provide supplemental responses to Plaintiff's Request for Production of Documents Nos. 9-14 and 16-19; (2) whether the Court should quash Plaintiff's subpoena to Sullivan seeking his financial and retirement account records; (3) whether Sullivan should be compelled to provide deposition testimony concerning the condition of his financial and retirement accounts; and (4) whether the Court should quash RBG's subpoena to Plaintiff's psychotherapist seeking Plaintiff's psychological records.

Requests for Production of Documents

The parties represent that there exists "disagreements as to . . . RBG's assertion of objections and partial noncompliance with Plaintiff's" Requests for Production of Documents. (ECF No. 14 at 8:9-11.)*fn1 In conjunction with their joint motion the parties filed a chart showing the discovery issues in dispute, including the Requests for Production of Documents. (ECF No. 14-16.) That document contains Plaintiff's requests and RBG's responses and objections to Request Nos. 9-14 and 16-19. (Id. at 1-5.) However, the parties' joint motion does not include a discussion of the parties' respective positions about these Requests. Rather, the only discussion about Plaintiff's Requests is Plaintiff's discussion about Request No. 14 (ECF No. 14 at 9:21-11:10) and RBG's conclusory statement that it "has produced to Plaintiff the income and expense data for the Carlsbad office and all other RBG offices for the years 2005 through 2012." (Id. at 18:10-12.)

Because neither party provided the Court with briefing concerning Request for Production Nos. 9-13 and 16-19, the Court does not address those Requests and will not, at this time, order RBG to supplement its responses or produce documents in response to those Requests. The parties are encouraged to continue to meet and confer in an effort to resolve these disputes informally taking into account the Court's conclusions herein. If the parties remain unable to resolve these disputes, they shall file a joint motion for determination of discovery dispute on or before May 3, 2013. The joint motion shall separately address each of the Requests that remain in dispute.

Request No. 14 seeks the following documents: "Copies of any and all records, communications, or other documents or ESI relating to all monies received by RBG from any production attributed to RBG's San Diego office for each year during the period January 1, 2005 through the present." (ECF No. 14-16 at 2.) RBG responded to Request No. 14 as follows: "RBG objects to this Request on the grounds that it is irrelevant to the issues in this lawsuit, is not reasonably calculated to lead to the discovery of admissible evidence, violates RBG's right to financial privacy, and it is overbroad and unduly burdensome. RBG also objects to this Request to the extent that it calls for RBG's confidential and proprietary financial information." (Id. at 2-3.)

Plaintiff contends that income generated by RBG's San Diego branch is relevant because: (1) her alleged promised compensation was based, at least in part, on the San Diego branch's income; and (2) RBG's income is necessary to calculate the value of restitution or disgorgement of profits based on RBG's alleged ...

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