Benion et al v. LeCom, Incorporated et al

Filing 85

OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL AND ORDER SHOW CAUSE re 74 MOTION to Compel and Order to Show Cause Non-Party Great Link Communication, LLC (Show Cause Hearing set for 10/19/2017 at 10:30 AM before Magistrate Judge Mona K. Majzoub in Courtroom 642) - Signed by Magistrate Judge Mona K. Majzoub. (LHos)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HARRY BENION,
ZACHARY GOODGALL,
DAMON FRANKLIN, and
LESLIE MORGAN,
Plaintiffs,

Case No. 15-cv-14367

v.

District Judge David M. Lawson

LECOM, INCORPORATED, and
LECOM COMMUNICATIONS, INC.,

Magistrate Judge Mona K. Majzoub

Defendants.
__________________________________/
DAVID BENTLEY, CECIL MCNEIL,
DEVON HALL, KEON PERSON,
KUWAND CARPENTER, and
LEONARD O. HINES, JR.,
Plaintiffs,

Case No. 16-cv-13640

v.
LECOM, INCORPORATED,
LECOM COMMUNICATIONS, INC.,
DETROIT COMMUNICATIONS
DIRECT, LLC,
EPIQ SOLUTIONS, LLC, and
JARELLE HANNAH,
Defendants.
__________________________________/
OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION TO COMPEL AND ORDER SHOW CAUSE
Plaintiffs bring the present case under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq., alleging that Defendants violated the FLSA by failing to pay Plaintiffs overtime
for hours worked in excess of 40 hours per week. (Docket no. 1.) Before the Court is Plaintiffs’

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Motion to Compel Non-Party Great Link Communications, LLC’s Compliance With Subpoena
Deuces Tecum And Order To Show Cause Why Non-Party Great Link Communication, LLC
Should Not Be Held In Contempt, And For Sanctions And Costs (Docket no. 74), which has
been referred to the undersigned for hearing and determination pursuant to 28 U.S.C. § 636(b).
(Docket no. 76.)

The motion is being reviewed without oral argument pursuant to Eastern

District of Michigan Local Rule 7.1(f)(2). (Docket no. 78.) Great Link Communication, LLC
(“Great Link”) did not respond to Plaintiffs’ motion.
This case arises under the FLSA.

Plaintiffs contend that Defendants improperly

classified them as independent contractors, thereby denying Plaintiffs the protections of state and
federal wage and hour laws. (Docket no. 1.) On March 9, 2017, Plaintiffs’ process server
personally served upon Great Link a subpoena to produce documents and/or information
pursuant to Rule 45 of the Federal Rules of Civil Procedure. (Docket no. 74, Exs. 1, 2.) In the
subpoena, Plaintiffs sought communications between Great Link and Defendants regarding the
maintenance, operation, supervision and assignment of cable installation technicians, as well as
personnel files regarding certain Plaintiffs. (Id. at Ex. 1.) Because resolution of Plaintiffs’
claims requires inquiry the nature of the Plaintiffs’ relationship with Great Link, the material
sought appears to be relevant to this matter.
Rule 45 governs subpoenas and provides that a nonparty served with the subpoena may
make written objections to the subpoena before the time specified for compliance under the
subpoena. Fed. R. Civ. P. 45(d)(2)(B). The failure to serve written objections to a subpoena
within the time specified by Rule 45(c)(2)(B) typically constitutes a waiver of such objections.
Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996) (citing United
States v. International Bus. Mach. Corp., 70 F.R.D. 700, 701–02 (S.D.N.Y.1976)). See Krewson

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v. City of Quincy, 120 F.R.D. 6, 7 (D.Mass.1988) (citing cases from various district courts). “In
unusual circumstances and for good cause, however, the failure to act timely will not bar
consideration of objections.” Semtek Int'l, Inc. v. Merkuriy Ltd., No. 3607 DRH, 1996 WL
238538, at *2 (N.D.N.Y. May 1, 1996). See IBM, 70 F.R.D. at 702 & n. 9; Angell v. Shawmut
Bank Conn. Nat'l Assoc., 153 F.R.D. 585, 590 (M.D.N.C.1994); In re Goodyear Tire & Rubber
Co. Sec. Litig., 1991 WL 172930, at *1, 1991 U.S.Dist. LEXIS 14486, at *2 (N.D.Ohio June 21,
1991); Krewson, 120 F.R.D. at 7; Celanese Corp. v. E.I. duPont de Nemours & Co., 58 F.R.D.
606, 609–10 (D.Del.1973). Courts find such unusual circumstances where: (1) “the subpoena is
overbroad on its face and ‘exceeds the bounds of fair discovery,’ ” Semtek, 1996 WL 238538, at
*2; Krewson, 120 F.R.D. at 7; (2) the subpoenaed witness is a non-party acting in good faith,
Semtek, 1996 WL 238538, at *2; and (3) counsel for witness and counsel for subpoenaing party
were in contact concerning the witness’ compliance prior to the time the witness challenged legal
basis for the subpoena. Id.; Goodyear, 1991 WL 172930, at *2, 1991 U.S.Dist. LEXIS 14486, at
*2–3; Celanese Corp., 58 F.R.D. at 610. Great Link has not provided the requested documents,
and has filed no written objection to the subpoena.

Moreover, the unusual circumstances

discussed above do not exist here.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel and Order Show
Cause (Docket no. 74) is GRANTED. Great Link must either produce the materials sought by
Plaintiffs or appear on Thursday, October 19, 2017, at 10:30 a.m., in Room 642 of the Theodore
Levin United States Courthouse, 231 W. Lafayette Blvd., Detroit, Michigan to show cause why
Great Link should not be held in contempt of court for failing to produce materials in response to
Plaintiffs’ subpoena. The Court reserves the right to impose sanctions and costs against Great
Link, as requested by Plaintiffs.

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NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen (14) days from the
date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. 636(b)(1).

Dated: September 18, 2017

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon counsel of record on this date.
Dated: September 18, 2017

s/ L. Hosking
Case Manager Generalist

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