Mendoza v. Testo et al

Filing 63

RULING granting in part and denying in part 53 MOTION to Compel Plaintiff's Compliance With Subpoened Documents by 170 Ferry Boulevard, LLC, ASV, LLC, Donald Cummings, Daniel Cylwik, Daniel Doe, Andrew Testo.. Signed by Judge Sarah A. L. Merriam on 6/8/15. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
MARVIN MENDOZA
:
:
v.
:
:
ANDREW TESTO, DANIEL CYLWIK, :
DONAL CUMMINGS, ASV LLC and
:
170 FERRY BOULEVARD LLC
:
:
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Civ. No. 3:14CV01664(AWT)

RULING ON DEFENDANTS’ MOTION TO COMPEL [53]
Plaintiff brings this seven count complaint against his
former employers for, inter alia, unpaid wages and overtime
allegedly earned while employed by defendants.1
Pursuant to Rule 37 of the Federal Rules of Civil
Procedure, defendants move to compel plaintiff‟s compliance with
defendants‟ Subpoena and Notice of Deposition dated March 16,
2015, request number 12, for copies of his federal and state tax
returns for 2012, 2013 and 2014. [Doc. #53, Ex. A, B]

A

telephone conference was held with counsel for both parties on
Friday, June 5, 2015.

Counts One through Seven allege violation of the federal Fair
Labor Standards Act (“FLSA”), Connecticut Minimum Wage Act,
Fraudulent Misrepresentation, Breach of Contract, Unjust
Enrichment and Quantum Meruit, and Intentional and Negligent
Infliction of Emotional Distress. [Doc. #1 Compl.] Plaintiff
alleges he worked for Off the Hook for approximately forty-seven
weeks. Compl. ¶39
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1

It is undisputed that plaintiff did not work for defendants
in 2012. The parties agree that during the relevant time period,
plaintiff worked for three employers: National Sintered Alloys
Inc., New Haven Cash Register and defendants‟ business, Off the
Hook Bar and Grill of Westbrook (“Off the Hook”). Plaintiff
provided W-2s from National Sintered Alloys Inc. for 2013 and
2014 and some pay stubs from New Haven Cash Register, in
response to the discovery demands of the defendants. The parties
agree that New Haven Cash Register did not issue W-2s to
plaintiff, and that the pay stubs provided do not encompass all
income earned by plaintiff from that company.

A 30(b)(6)

deposition of New Haven Cash Register is scheduled for the week
of June 8, 2015.
It is also undisputed that defendants kept no employment
records for the hours/overtime worked by plaintiff during his
employment or wages paid to plaintiff. [Doc. #59, Ex. 2 at 48,
174, Ex. 3 at 2, Ex. 4 at 2, Ex. 5 at 2] Plaintiff alleges that
he was provided with “paper tickets” recording his hours at the
start and end of each shift, and on at least one occasion
defendant Doe told plaintiff he did not need the paper tickets
because Mr. Mendoza‟s hours were recorded in the computer.
Compl. ¶¶ 33, 41.

See

However, plaintiff apparently does not have

these records and neither do the defendants.

2

Defendants argue that plaintiff‟s personal income tax
returns from 2012, 2013, and 2014 are relevant to the subject
matter of the action because they will reveal information
pertaining to: when plaintiff started his employment at Off the
Hook; the wages he claims he was paid by defendants; and the
income plaintiff earned at Off the Hook and a third employer,
New Haven Cash Register. [Doc. #53 at 1]
“Although income tax returns are not inherently privileged,
courts are typically reluctant to compel their disclosure
because of both „the private nature of the sensitive information
contained therein‟ and „the public interest in encouraging the
filing by taxpayers of complete and accurate returns.‟ ” Uto v.
Job Site Servs., Inc., 269 F.R.D. 209, 212 (E.D.N.Y. 2010)
(quoting Smith v. Bader, 83 F.R.D. 437, 438 (S.D.N.Y. 1979)).
“To compel the disclosure of income tax returns, a two-part test
must be satisfied: (1) the returns must be relevant to the
subject matter of the action and (2) there must be a compelling
need for the returns because the information is not „otherwise
readily available.‟”

Id. (quoting United States v. Bonanno

Family of La Cosa Nostra, 119 F.R.D. 625, 627 (E.D.N.Y. 1988)).
Counsel for the defendants clarified during the June 5, 2015,
conference call that they are not seeking disclosure of the
entire tax return, but rather solely any reported income and any
business and/or work related deductions.
3

The defendants argue that they have met the relevance and
“compelling need” standards for disclosure of the returns
because by utilizing the income information from the returns in
conjunction with information obtained from National Sintered
Alloys Inc. and New Haven Cash Register they will be able to
test plaintiff‟s wages claim and damages analysis. The gravamen
of the plaintiff‟s complaint in this case revolves around his
income.

Clearly, the amount of compensation received by

plaintiff is relevant to the prosecution and defense of this
action. Here, both parties represent that they do not have
access to records showing the hours actually worked or money
actually paid to Mendoza by the defendants, meaning that the
information sought is not otherwise available.
Plaintiff counters that defendants have not adequately
explained “how they will extrapolate plaintiff‟s start date,
hours worked and wages earned from his tax returns.” [Doc. #59
at 2] Wages earned by individual employers are contained in IRS
W-2 Wage and Tax Statements (“W-2s”), not in tax returns, which
provide a line for aggregate income. Plaintiff states he has
already disclosed his W-2s from one employer. [Doc. #59, Ex. 1,
Pl. Resp. to Req. No. 8, W-2s 2013, 2014] While this is true,
during the telephone conference plaintiff admitted that he did
not produce W-2s from New Haven Cash Register and it was unclear
if all of his paper tickets have been provided. Indeed,
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plaintiff admitted that he did not maintain a bank account where
he would have deposited his wages.
Plaintiff further argues that even if defendants can
demonstrate that information regarding income is relevant, they
have not shown how the information can be obtained from
plaintiff‟s personal income tax returns.
the point.

This argument misses

The fact that the information sought by the

defendants in this discovery demand might not be sufficient, on
its own, to provide a complete picture of the plaintiff‟s income
from all employers during the relevant time period does not mean
it is not relevant, or that the defendants‟ discovery request is
not proper.
Plaintiff concedes that he cannot fully document his income
from various employers with W-2 forms and pay stubs.

Plaintiff

testified at his deposition that he based his reported income on
his own recollection.

Where, as here, the plaintiff‟s income is

the very crux of the dispute underlying the litigation,
defendants are entitled to pursue documentation of that income.
Defendants have demonstrated they have sought documentary
evidence from plaintiff and from New Haven Cash Register. See
Melendez v. Primavera Meats, Inc., 270 F.R.D. 143, 144-45
(E.D.N.Y. 2010) (denying motion to compel production of tax
returns to identify plaintiff's “other employers,” where
defendant failed to utilize less intrusive discovery devices for
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the same information)). On this record, the Court finds that
defendants have satisfied the two-part test to compel disclosure
of plaintiff‟s federal and state tax returns.

See Uto, 269

F.R.D. at 212 (defendant has the burden of proof to demonstrate
both relevancy and a compelling need) (citing cases)).
For the reasons stated, defendants‟ Motion to Compel [Doc.
#53] is GRANTED in part and DENIED in part. Plaintiff will
produce the portions of his federal and state tax returns
containing reported income and any business and/or work related
deductions for 2013 and 2014. The parties will confer and enter
into an appropriate protective order.
This is not a recommended ruling. This is a discovery
ruling which is reviewable pursuant to the Aclearly erroneous@
statutory standard of review. 28 U.S.C. ' 636(b)(1)(A); Fed. R.
Civ. P. 72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an
order of the Court unless reversed or modified by the district
judge upon motion timely made.
SO ORDERED at New Haven, Connecticut this 8th day of June 2015.
______/S/_______________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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