Black et al v. DMNO, LLC et al

Filing 71

ORDER: ORDERED that 47 Motion to Quash the Third-Party Subpoena Issued to Heartland Payment Systems, Inc. is DENIED. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES BLACK, ET AL

CIVIL ACTION

VERSUS

NO:

DMNO, LLC ET AL

SECTION: “E” (4)

16-02708

ORDER
Before the Court is Defendants’ Motion to Quash the Third-Party Subpoena Issued to
Heartland Payment Systems, Inc. (R. Doc. 47). The motion is opposed. R. Doc. 56. The motion
was submitted on November 29, 2017.
I.

Background
The instant litigation is an FLSA collective action filed by the Plaintiffs. R. Doc. 1. The

Plaintiffs allege that the Defendants, who are the owners and operators of Doris Metropolitan a
restaurant in New Orleans, Louisiana, paid its servers $2.13 per hour and took tip credit from the
customer tips to satisfy the required $2.75 minimum wage, however, it is also alleged that
Defendants also appropriated a percentage of the servers’ tips in order to subsidize managerial
salaries. R. Doc. 1, p. 2. Plaintiffs allege that by appropriating the tips this way the Defendants
lose the employer privilege of using tip credit to satisfy minimum wage. Id. In addition, the
Plaintiffs contend that the Defendants refused to pay overtime to employees and failed to pay
tipped employees minimum wage for the hours worked where there was no opportunity for tips.
Id.
On November 13, 2017, the Defendants filed the instant motion to quash a subpoena that
was sent to a third-party in this case. R. Doc. 47. The Defendants argue that the subpoena should
be quashed because the Plaintiffs did not notify the Defendants prior to serving the subpoena on

the third-party and that the Plaintiffs seek the production of documents after the discovery
deadline. R. Doc. 47-5, pp. 1, 2.
The Plaintiffs oppose the motion. R. Doc. 56. They argue that the subpoena was sent by
certified mail on November 7, 2017, the Defendants were timely notified on November 9, 2017,
and that as of November 19, 2017, service has not been made and therefore there is no violation
of the Federal Rules of Civil Procedure. R. Doc. 56, p. 2. Plaintiffs further argue that there was no
possible way to serve the subpoena prior to the discovery deadline because the Defendants
canceled the deposition of the individual who knew of the payroll company and only learned of
the third-party’s name from the rescheduled deposition on November 7, 2017, the same day the
subpoena was sent. R. Doc. 56, Id. at p. 3. Finally, Plaintiffs state that a new scheduling order
resetting the deadlines in this case will be issued because the District Court set a scheduling
conference for November 30, 2017.
II.

Standard of Review
Federal Rule of Civil Procedure 45(d)(3) governs the quashing or modifying of subpoenas.

The Court must quash or modify a subpoena that “(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii)
requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). The Court may also
modify or quash a subpoena that requires the disclosure of a trade secret or an unretained expert's
opinion that does not describe specific occurrences in dispute and results from that expert's study
that was not requested by a party. Fed. R. Civ. P. 45(d)(3)(B). Finally, Rule 45(d)(3) provides that
the court which has the power to quash a subpoena is “the court for the district where compliance
is required.” Fed. R. Civ. P. 45(d)(3)(A), (B).

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Subpoenas under Rule 45 may be served upon both party and non-parties. Petit v. Heebe,
No. 15-3084, 2016 WL 1089351, at *2 (E.D. La. Mar. 21, 2016). However, in order to challenge
the subpoena, the movant must: be in possession or control of the requested material; be the person
to whom the subpoena is issued; or have a personal right or privilege in the subject matter of the
subpoena. See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979); see also Johnson v. Mixon,
No. 13-2629, 2014 WL 1764750, at *4 (E.D. La. May, 2, 2014).
III.

Analysis
First, pursuant to Rule 45(d)(3), a subpoena can be quashed or modified by the court for

the district where compliance with the subpoena is required. The subpoena in contention in the
instant motion was issued by the United States District Court for the Eastern District Louisiana to
Heartland Payment Systems, Inc. (“Heartland”). R. Doc. 47-1. Heartland is located 90 Nassau
Street, Princeton, New Jersey 08542. The subpoena issued in this case commands Heartland to
produce document to the Vazquez Law Office located at 400 Poydras Street, Suite 900, New
Orleans, LA 70130. Id.
The subpoena in this case is clearly commanding that Heartland produce the documents at
an address in New Orleans. Because New Orleans, Louisiana is within the jurisdiction of the U.S.
Court for the Eastern District of Louisiana this Court is the court of compliance under Rule
45(d)(3). See Fidelis Grp. Holdings, LLC v. Chalmers Automotive, LLC, No. 16-3258, 2016 WL
4547994 (E.D. La. Sept. 1, 2016); Semex Alliance v. Elite Dairy Genomics, LLC, No. 3:14-cv-87,
2014 WL 1576017, at *1 (S.D. Ohio Apr. 17, 2014).
Second, because the Court has the authority to quash or modify the subpoena in question,
the Court must next turn to whether the Defendants have standing to bring the motion to quash.
As it relates to standing:
Ordinarily a party has no standing to seek to quash a subpoena issued to someone
who is not a party to the action, unless the objecting party claims some personal
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right or privilege with regard to the documents sought. This personal right or
privilege standard has been recognized in numerous cases.
C. Wright & A. Miller, 9A Fed. Prac. and Proc. Civ. § 2459 (3d ed.); accord Brown v. Braddick,
595 F.2d at 967; See Winter v. Bisso Marine Co., Inc., No. 13-5191, 2014 WL 3778833, at *2
(E.D. La. July 29, 2014).
In the instant case, the subpoena in question seeks “[a]ll documents in your possession,
custody, or control reflecting or relating to spreadsheets, excel documents, and all data received
for the period of 1/1/2014-to date by DMNO, LLC and/or Doris Metropolitan.” The subpoena also
seeks all paystubs issued to seventeen individuals, including fifteen who are plaintiffs in the case.
R. Doc. 47-1.
When attempting to quash a subpoena to a third-party the movant must claim some
personal right or privilege in regard to the materials being sought and make a showing that there
is a personal right to be protected. See Adams v. Dolgencorp, LLC, No. 11-784, 2012 WL 1867123,
*1 (M.D. Louisiana May 22, 2012) (holding that movant had no standing when there was no
showing of a “personal right to be protected, i.e., a privacy interest”); See also Bisso Marine Co.,
Inc., 2014 WL 3778833 at *2 (finding standing when the movant demonstrated a privacy interest
in the materials sought by a subpoena to a third party).
The documents requested in this case are the payroll files and information sent from the
Defendants to their payroll company. The Court finds that the Defendants have a personal right in
the payroll information that was sent to Heartland. As a result, the Court finds that the Defendants
have standing to bring the motion to quash and will evaluate their arguments with respect to the
subpoena.
The Defendants argue that the subpoena did not comply with Rule 45(a)(4)’s notice
requirement. They also argue that the subpoena was an attempt to circumvent the discovery

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deadline in the case. A review of the Rule as well as the record does not support Defendants’
arguments.
Rule 45(a)(4) requires that if a subpoena commands the production of documents, ESI,
tangible things or the inspection of premises before trial “then before it is served on the person to
whom it is directed, a notice and copy of the subpoena must be served on each party.” Fed. R. Civ.
P. 45(a)(4). The instant subpoena was issued on November 7, 2017, and Defendants indicate that
they received notice on November 9, 2017. R. Doc. 47-2. According to the Plaintiffs, as of the
filing of their opposition to the motion on November 19, 2017, no service had been made on
Heartland. R. Doc. 56, p. 2. The clear language of the Rule requires notice before service, and
while Defendants were given notice two days after the issuance no service had yet been made so
the Rule had not been violated.
Next, Defendants argue that the subpoena is an attempt to circumvent the discovery
deadline of November 7, 2017. R. Doc. 47-5, p. 3. They argue that because the subpoena requires
a response on November 21, 2017, it is attempting to circumvent the District Court’s deadline.
In opposition, the Plaintiffs state that the subpoena was not meant to circumvent discovery
because they asked defense counsel for the information of the payroll company, but did not receive
it, and it was only during a deposition on November 7, 2017, that they learned of Heartland and
immediately sent the subpoena. R. Doc. 56, p. 3. They argue that the subpoena was issued in an
attempt to be diligent in their discovery. Finally, Plaintiffs state that the District Court has issued
an order resetting deadlines in the case making the issue moot. Id.
It has been noted that “subpoenas duces tecum must also comply with discovery deadlines
to avoid being quashed.” 9A Fed. Prac. & Proc. Civ. § 2459. Further, courts have noted that parties
should “not be able to employ a subpoena after a discovery deadline to obtain materials from third
parties that could have been produced before discovery.” Id. at § 2452. See Goldstein v. F.D.I.C.,
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494 B.R. 82, 87 (“[C]ourts have held that Rule 45 subpoenas are subject to the same discovery
deadlines and orders as any other type of discovery.”); Abrams v. Ciba Specialty Chemicals Corp.,
265 F.R.D. 585 (S.D. Ala. 2010) (subpoena duces tecum was denied because it would have allowed
defendant to circumvent discovery deadline); Surbella v. Foley, 2006 WL 300749 (D.C. Ohio
2006) (A subpoena issued before the close of discovery that scheduled a deposition after the end
of the discovery period was not enforced); Alper v. U.S., 190 F.R.D 281 (D.C. Mass. 2000) (Rule
45 subpoenas are subject to parameters established by Rule 26).
On November 15, 2017, the District Court issued an order continuing the trial and pre-trial
deadlines in this matter. R. Doc. 52. This occurred after the instant motion was filed, but prior to
the submission date. Further, on November 30, 2017, the District Court set a new discovery
deadline of March 27, 2018. R. Doc. 65. Due to the motion to continue and new deadlines, the
subpoena sought information within the deadlines set in the case and therefore Defendants
argument with respect to that issue should be denied.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Defendants' Motion to Quash the Third-Party Subpoena

Issued to Heartland Payment Systems, Inc. (R. Doc. 47) is DENIED.

New Orleans, Louisiana, this 18th day of January 2018.

KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE

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