Goldsberry v. A Caring Touch of McLean County, Inc. et al

Filing 33

ORDER granting 28 the Plaintiff's Motion to Subpoena and denying 30 the Plaintiff's Motion for a Hearing. See Written Order. Entered by Magistrate Judge Jonathan E. Hawley on 10/15/2014. (KZ, ilcd)

E-FILED

Wednesday, 15 October, 2014 11:29:13 AM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
FLORENCE K. GOLDSBERRY,
Plaintiff,
Case No. 1:14-cv-01134-JES-JEH

v.
A CARING TOUCH OF McLEAN
COUNTY, INC., JOHN WERDERITS,
and WENDY WERDERITS, deceased,
Defendants.
Order

Now before the Court are the pro se Plaintiff’s Motion to Subpoena (Doc. 28)
and Motion for a Hearing (Doc. 30). The Court initially notes that while the Plaintiff
labeled her Motion to Subpoena as such, the substance of that Motion is instead a
motion to compel for the Defendants’ failure to produce the requested documents.
The Defendants had the opportunity to respond to the Motion just as they would to
a motion to compel, and they did in fact respond. Thus, the Court construes the
Plaintiff’s Motion to Subpoena as a motion to compel. With that understanding, and
for the reasons set forth below, the Motion to Subpoena is GRANTED and the
Motion for Hearing is DENIED.
I
The Plaintiff filed her Complaint on April 9, 2014 alleging that the
Defendants’ actions towards her violated the Family Medical Leave Act (FMLA).
On June 11, 2014, the Court denied the Defendants’ Motion to Dismiss and on
October 10, 2014, the Court denied the Defendants’ Motion for Summary Judgment.
In both instances, the Defendants sought judgment against the Plaintiff on the basis
that they did not employ 50 or more employees as required for them to be
considered an “employer” under the FMLA. In denying the Motion to Dismiss, the
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Court explained that the threshold issue of whether Defendants were an “employer”
within the meaning of the FMLA was better presented and resolved in the context of
a summary judgment motion after discovery initially limited to that threshold issue.
In denying the Motion for Summary Judgment, the Court explained that the
Defendants’ request for summary judgment was premature where the Plaintiff had
not been given an opportunity to pursue discovery on the issue of whether the
Defendants were an “employer” under the FMLA.
On September 2, 2014, the Court denied the Plaintiff’s original Motion to
Subpoena in which she sought copies of the Defendants’ federal tax return filings for
2011 through 2014 and for the bi-weekly employee schedule roster for the
Defendants’ McLean County and Livingston County locations for the payroll period
of 2011 through 2014. She explained that she sought those documents to prove that
the Defendants had more than 50 employees for the years 2011 through 2014. The
Court initially denied that Motion, explaining that the Defendants already provided
copies of the tax returns that the Plaintiff sought to obtain when they filed their
Motion to Dismiss, and that the Plaintiff had already otherwise been provided the
information she sought via subpoena.
In her second Motion to Subpoena, the Plaintiff again seeks the bi-weekly
employee schedule roster for McLean and Livingston Counties during the period of
2011 through 2014 to show that the Defendants had more than 50 employees during
that time period. She says that the federal tax returns show only the employees that
have provided services rather than showing all of the Defendants’ employees.
II
The federal discovery rules are to be construed broadly and liberally. Herbert
v Lando, 441 U.S. 153, 177 (1979); Jefferys v LRP Publications, Inc., 184 FRD 262, 263
(ED Pa 1999). Parties are allowed to obtain discovery regarding any unprivileged
matter relevant to the claim or defense of any party. FRCP 26(b)(1). Relevant
information need not be admissible at trial if the discovery appears to be reasonably
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calculated to lead to the discovery of admissible evidence. Id. District courts have
broad discretion in matters relating to discovery. See Brown–Bey v United States, 720
F2d 467, 470–71 (7th Cir 1983). For discovery purposes, relevancy is 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.” Chavez v
DaimlerChrysler Corp., 206 FRD 615, 619 (SD Ind 2002), quoting Oppenheimer Fund,
Inc. v Sanders, 437 US 340, 351 (1978).
Under the FMLA, an “employer” is “any person engaged in commerce . . .
who employs 50 or more employees for each working day during each of 20 or more
calendar workweeks in the current or preceding calendar year.”

29 USC §

2611(4)(A)(i). Here, what is clearly at issue in this case is whether the Defendants
are an “employer” under the FMLA. Thus, documents that bear on that issue are
discoverable.

The Defendants oppose the Plaintiff’s request for their bi-weekly

employee schedule rosters as unduly burdensome and argue that the Plaintiff
already has the information she seeks via the previously provided federal tax
returns. The Defendants also rely upon the Affidavits of Defendant John Werderits
in which he stated that: 1) Defendant A Caring Touch did not employ more than 50
employees within 75 miles for a period of twenty or more calendar workweeks in
2011, 2012, 2013, or 2014; 2) A Caring Touch manages all employment records for
the corporation from its location in Bloomington, Illinois; and 3) A Caring Touch
previously had a satellite location in Pontiac, Illinois that is no longer part of its
operation as of September 2005.
The Defendants do not adequately explain how the request for the bi-weekly
employee schedule rosters is “unduly burdensome.” As for their reliance upon John
Werderits’s Affidavits, his attestations do not foreclose the Plaintiff’s ability to seek
other relevant information or information that appears reasonably calculated to lead
to the discovery of admissible evidence. The Court will not preclude the Plaintiff
from obtaining such additional documents where she insists that the documents she
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already has do not show the full picture and the Defendants’ opposition does not
sufficiently respond to that argument. The Plaintiff is entitled to copies of the biweekly employee schedule rosters for the years 2011 through 2014.
Because the Court denied the Defendants’ Motion for Summary Judgment
and because the Court has now granted the Plaintiff’s Motion to Subpoena, the
Plaintiff’s request for hearing on the issue of whether the Defendants are an
“employer” under the FMLA is not raised in the correct manner nor at the correct
time at this point in the litigation. This is especially so where the Court in its Order
on the Motion for Summary Judgment plainly explained that the Plaintiff may
ultimately uncover facts during discovery that demonstrate that John and Wendy
Werderits actually acted as the employer. Therefore, the Motion for a Hearing is
denied.
III
For the reasons set forth above, the Plaintiff’s Motion to Subpoena (construed
as a motion to compel) (Doc. 28) is GRANTED and the Motion for a Hearing (Doc.
30) is DENIED. The Defendants must turn over the requested bi-weekly employee
schedule rosters for the years 2011 through 2014 within fourteen days of the date of
this Order.
Entered on October 15, 2014.

s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

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