Escamilla v. SMS Holdings Corporation et al

Filing 416

MEMORANDUM OPINION AND ORDER Affirming 406 Order on Motion for Protective Order, Order on Motion for Extension of Time to Complete Discovery, Order on Motion to Compel, Overruling 407 Objection To Discovery Ruling filed by Marco Gonzalez (Written Opinion). Signed by Judge Ann D. Montgomery on 06/17/2011. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Leticia Zuniga Escamilla,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER
Civil No. 09-2120 ADM/JSM

SMS Holdings Corporation,
Service Management Systems, Inc.,
and Marco Gonzalez,
Defendants.
______________________________________________________________________________
Lisa C. Stratton, Esq., Jill R. Gaulding, Esq., and Jonathan J. Dahl, Esq., Gender Justice, St.
Paul, MN, on behalf of Plaintiff.
Kurt J. Erickson, Esq., and Sarah M. Fleegel, Esq., Jackson Lewis LLP, Minneapolis MN, and
Thomas E. Marshall, Esq., Engelmeier & Umanah, P.A., Minneapolis, MN, on behalf of
Defendant Marco Gonzalez.
Britt M. Gilbertson, Esq., and Gregory J. Stenmoe, Esq., Briggs & Morgan, PA, Minneapolis,
MN, and Kara E. Shea, Esq., Sarah C. Maxwell, Esq., and T. Harold Pinkley, Esq., Miller &
Martin PLLC, Nashville, TN, on behalf of Defendants SMS Holdings Corporation and Service
Management Systems, Inc.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for a ruling on
Defendant Marco Gonzalez’s (“Gonzalez”) Objection [Docket No. 407] to Magistrate Judge
Janie S. Mayeron’s May 18, 2011 Order [Docket No. 406]. Judge Mayeron’s Order denied
Gonzalez’s Motion for a Protective Order [Docket No. 379] and granted in part and denied in
part Plaintiff Leticia Zuniga Escamilla’s (“Zuniga Escamilla”) Motion for Extension of Time to
Complete Discovery to Subpoena ERMC and Motion to Compel Supplemental Discovery
Responses From Marco Gonzalez [Docket No. 384]. For the reasons stated below, Gonzalez’s

Objection is overruled and the Order is affirmed.
II. BACKGROUND
Zuniga Escamilla alleges sexual harassment and sexual battery by her supervisor
Gonzalez while she was employed by Defendants SMS Holdings Corporation and Service
Management Systems, Inc. (collectively “SMS”). See generally First Am. Compl. [Docket No.
149]. Zuniga Escamilla and Gonzalez were both employees of SMS, which provided cleaning
and maintenance services to Ridgedale Mall in Minnetonka, Minnesota. Id. ¶¶ 17-20. After
Zuniga Escamilla left her employment with SMS, ERMC of Illinois, LLC won the cleaning
contract for Ridgedale Mall and came to employ Gonzalez in the same capacity as SMS. See 2d
Stratton Decl. [Docket No. 396] Ex. A at 4.
Central to the instant motions is the name of ERMC of Illinois, LLC, the company
employing Gonzalez after SMS. In his Answers to Interrogatories, Gonzalez identified his
employer only as “ERMC.” Id. Further, the company’s website and its counsel list the company
name as “ERMC.” 2d Stratton Decl. ¶¶ 6-7. On July 7, 2010, Zuniga Escamilla, through
counsel, served the company and Gonzalez with a subpoena directed to “ERMC.” Id. ¶¶ 10-11.
Counsel to ERMC of Illinois, LLC then contacted counsel to Zuniga Escamilla and stated that he
was in receipt of the subpoena but requested that the subpoena be reissued to reflect the company
name “ERMC of Illinois LLC.” Gaulding Decl. [Docket No. 388] ¶ 6. That request was
honored and a second subpoena, identical in all respects except that the company name was
changed to ERMC of Illinois LLC, was served on the company on July 13, 2010. Id. The
second subpoena bearing the name ERMC of Illinois LLC was not served on Gonzalez.
Discovery in this matter was to be completed by July 15, 2010. On July 14, 2010, Zuniga

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Escamilla and ERMC of Illinois, LLC agreed to an extension of the time for compliance with the
subpoena; Gonzalez was notified of the extension and did not object. 2d Stratton Decl. ¶¶ 18-19.
In February 2011, Zuniga Escamilla received documents responsive to the subpoenas from
ERMC of Illinois, LLC. Id. ¶ 32. Gonzalez moved for a Protective Order claiming that Zuniga
Escamilla should be required to disgorge the documents because Gonzalez was never served
with the subpoena bearing the name “ERMC of Illinois LLC” and therefore the responsive
documents were obtained as the result of an unlawful simulation of process. Judge Mayeron
disagreed and denied that motion, and Gonzalez now objects.
Furthermore, after an investigation, Zuniga Escamilla learned that Gonzalez was no
longer employed by ERMC of Illinois, LLC as of October 2010. Stratton Decl. [Docket No.
387] ¶ 6. It also was learned that another former SMS employee, Rafael Herrera Luna (“Herrera
Luna”), was also no longer employed by ERMC. Id. ¶ 7. Zuniga Escamilla’s investigation
indicated that Herrera Luna was terminated for sexual harassment. Id. ¶ 10. Zuniga Escamilla
then moved to issue another subpoena to ERMC of Illinois, LLC seeking information concerning
Gonzalez’s and Herrera Luna’s departures from the company and moved to compel Gonzalez to
supplement his discovery responses. Judge Mayeron granted in part and denied in part that
motion, and Gonzalez now objects.
III. DISCUSSION
A. Standard of Review
The standard of review applicable to an appeal of a magistrate judge’s order on a
nondispositive issue is extremely deferential. See Reko v. Creative Promotions, Inc., 70 F.
Supp. 2d 1005, 1007 (D. Minn. 1999). The district court must affirm a decision by a magistrate

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judge on a nondispositive issue unless the decision is “clearly erroneous or contrary to law.”
Fed. R. Civ. P. 72(a). A decision is “‘clearly erroneous’ when, although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728
(8th Cir. 1996). “A decision is ‘contrary to the law’ when it ‘fails to apply or misapplies relevant
statutes, case law or rules of procedure.”’ Knutson v. Blue Cross & Blue Shield of Minn., 254
F.R.D. 553, 556 (D. Minn. 2008) (quoting Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins.
Co., 592 F. Supp. 2d 1087, 1093 (N.D. Iowa 2008)).
B. Motion for a Protective Order
With respect to Gonzalez’s Motion for a Protective Order, this Court is not left with the
definite and firm conviction that a mistake was made by Judge Mayeron. Gonzalez argues that
Zuniga Escamilla’s receipt of documents in response to her subpoenas was an “unlawful
simulation of process” because Gonzalez was never served with the second subpoena and
because ERMC of Illinois, LLC did not respond until after the close of discovery. These
arguments are unavailing.
First, it is unclear whether the documents produced by ERMC of Illinois, LLC were
produced in response to the first subpoena, which was served on Gonzalez, or second subpoena,
which was not served on Gonzalez. As a matter of law, the company had an obligation to
comply with the first subpoena, as it was actually received and was clearly directed at “ERMC,”
the name used by ERMC of Illinois, LLC to do business. See Fed. R. Civ. P. 45(a)(1)(iii)
(requiring that a subpoena “command each person to whom it is directed” to produce designated
documents); Ultradent Prods., Inc. v. Hayman, No. M8-85 RPP, 2002 WL 31119425, *4

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(S.D.N.Y. Sept. 24, 2002) (holding that due process requires only that notice and an opportunity
to present objections be provided under Rule 45). There can be no dispute that ERMC of
Illinois, LLC was on notice of the first subpoena and was aware to which Court any objections
could be made. The Federal Rules of Civil Procedure do not require more, and hyper-technical
arguments regarding immaterial distinctions like those urged by Gonzalez are unwelcome. See
Fed. R. Civ. P. 1 (stating that the Federal Rules of Civil Procedure “should be construed and
administered to secure the just, speedy, and inexpensive determination of every action and
proceeding”).
Further, the fact that ERMC of Illinois, LLC did not comply with the subpoenas until
after the close of discovery does not warrant disgorgement of the produced documents.
Gonzalez cites no authority that disgorgement in particular is the proper remedy. Indeed, it
would be unjust to penalize Zuniga Escamilla for her attempts to accommodate ERMC of
Illinois, LLC or to penalize her for that company’s failure to timely comply with the subpoena,
particularly when Gonzalez was aware of the extension and interposed no objection. Further,
Gonzalez will suffer no prejudice as this case continues in the pretrial phase and no dispositive
motions are pending. Therefore, Judge Mayeron properly denied Gonzalez’s Motion for a
Protective Order.
C. Motion for Extension of Time and to Compel
With respect to Zuniga Escamilla’s Motion for Extension of Time to Complete Discovery
to Subpoena ERMC and Motion to Compel Supplemental Discovery Responses From Marco
Gonzalez, Gonzalez does not dispute that he no longer is employed by ERMC of Illinois, LLC.
Therefore, he must supplement his answers to Zuniga Escamilla’s interrogatories. Fed. R. Civ. P.

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26(e)(1). Further, although Gonzalez is correct that Zuniga Escamilla’s request for a second
subpoena directed at ERMC of Illinois, LLC comes after the close of discovery in this case, the
Court may allow additional discovery for good cause. Fed. R. Civ. P. 16(b)(4). Good cause
exists to allow further discovery with respect to the narrow subject matter identified by Judge
Mayeron because Gonzalez and Herrera Luna did not end their employment until after the close
of discovery. It would have been impossible to obtain the information prior to October 2010,
and as noted above, at this procedural phase Gonzalez will not be prejudiced by the additional
discovery.
Further, despite Gonzalez’s assertions to the contrary, the discovery sought could lead to
admissible evidence. It is impossible to evaluate ex ante the admissibility of yet unknown
evidence, but it suffices to note that if evidence of sexual harassment by Gonzalez or Herrera
Luna is discovered that evidence may be admissible under Rule 404(b) of the Federal Rules of
Evidence to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident or may be admissible under some other, yet-unidentified rule. Therefore, the
Court does not have a definite and firm conviction that a mistake was made and Judge
Mayeron’s Order with respect to Zuniga Escamilla’s Motion for Extension of Time to Complete
Discovery to Subpoena ERMC and Motion to Compel Supplemental Discovery Responses From
Marco Gonzalez is affirmed.
IV. ORDER
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Gonzalez’s Objection [Docket No. 407] is OVERRULED; and

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2.

Judge Mayeron’s May 18, 2011 Order [Docket No.] is AFFIRMED.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: June 17, 2011.

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