Evantigroup, LLC v. Mangia Mobile, LLC

Filing 205

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants motion to modify plaintiffs subpoenas duces tecum [Doc. # 183] is granted in part. The documents to be produced by US Bank, the Business Bank of St. Louis, US Food Service, and Five Star I nsurance Agency shall be limited to the time period January 1, 2009 to the present. IT IS FURTHER ORDERED that the deadline for production of the documents responsive to the subpoenas is May 1, 2013. IT IS FURTHER ORDERED that the motion to modify is denied in all other respects. Signed by District Judge Carol E. Jackson on 4/18/2013. (KMS)

eoUNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EVANTIGROUP, LLC,
Plaintiff,
vs.
MANGIA MOBILE, LLC et al.,
Defendants.

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Case No. 4:11-CV-1328 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion to modify plaintiff’s
subpoenas duces tecum. Plaintiff has filed a memorandum in opposition and the issues
have been fully briefed.
On January 23, 2013, plaintiff served US Bank, the Business Bank of St. Louis,
US Food Service, and Five Star Insurance Agency with subpoenas requesting
documents for production by February 22, 2013. In a letter, dated February 5, 2013,
defendants objected to the subpoenas. [Doc. #183-5]. On March 6, 2013, defendants
filed the instant motion arguing that the subpoenas are: (1) overly broad because they
are not limited to the relevant time period and (2) so vague that the subpoenaed
parties may mistakenly produce unrelated information.
Plaintiff argues that the instant motion is untimely. Federal Rule of Civil
Procedure 45(c)(2)(B)

provides that

“[a]

person

commanded

to

produce

documents . . . may serve on the party or attorney designated in the subpoena a
written objection . . . before the earlier of the time specified for compliance or 14 days
after the subpoena is served.” The subpoenas were issued on January 23, 2013 and
defendants objected 13 days later on February 5, 2013. The defendants filed their

motion to modify plaintiff’s subpoenas on March 6, 2013, which the Court finds to be
timely. See Fed. R. Civ. P. 45(c)(3)(A) (instructing that the motion be timely without
designating an exact time period). Furthermore, because defendants have a legitimate
privacy interest in their own bank and business records, they have standing to object
to the information requested in plaintiff’s subpoenas. See Nat’l Benefit Programs, Inc.
v. Express Scripts, 2011 WL 6009655, at *3 (E.D. Mo. Dec. 1, 2011); Union Pac. RR.
v. Mike’s Train House, Inc., 2006 U.S. Dist. LEXIS 23589 (D. Neb. Apr. 25, 2006) (a
personal privilege or right in information provides a non-subpoenaed party the ability
to object to a subpoena).
Defendants request that the subpoenas be modified to limit the production of
documents from January 1, 2009 to the present. Plaintiff argues that information prior
to 2009 is discoverable because it is relevant to issues of alter ego, funding for Mangia
Mobile, and punitive damages. While the Court agrees that discovery on those issues
are relevant, the need for information prior to the events giving rise to the instant case
is not. The earliest relevant date alleged in plaintiff’s third amended complaint is July
23, 2009, the date C.A.T. I was created. [Doc. #155]. Accordingly, the production of
documents will be limited to January 1, 2009 to the present.
Defendants also request that the subpoenas be modified so as to prevent the
production of documents relating to any non-party businesses in which defendants
have an interest. Defendants provide two examples in which the plaintiffs request the
production of documents pertaining to all communications with defendants, which
defendants argue could include communications involving other non-party businesses.
In Count VI of the third amended complaint, plaintiff asserts that the failure of
defendants to observe corporate formalities “factors in favor of piercing the corporate

shields of Mangia Mobile, LLC and C.A.T. I (which have also co-mingled assets between
themselves and the retirement businesses controlled by Thomas Daake, Sr. and Adele
Daake).” Federal Rule of Civil Procedure 26(b)(1) instructs that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense[.]” Fed. R. Civ. P. 26(b)(1). The Court finds that information about non-party
businesses, particularly concerning the transfer of assets from Mangia Mobile or C.A.T.
I. is relevant to plaintiff’s claim to pierce the corporate veil.
Additionally, plaintiff’s third amended complaint seeks an award of punitive
damages. “[A] plaintiff seeking punitive damages is entitled to discover information
relating to defendant’s financial condition in advance of trial without making a prima
facie showing that he is entitled to recover such damages. Doe v. Young, No.
4:08CV197, 2009 U.S. Dist. LEXIS 12116, at *6 (E.D. Mo. Feb. 18, 2009). Although
plaintiff is entitled to discovery of plaintiff’s financial information in advance of trial, the
Court has the discretion to limit the scope of discovery. See Roberts v. Shawnee
Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003). Defendants argue that
information regarding their interests in non-party companies is irrelevant, but do not
provide any support for their contention. The Court finds that these interests are
relevant to defendants’ overall net worth and the requests are not overly burdensome
since the Court has limited the scope of discovery from January 1, 2009 to the present.
IT IS HEREBY ORDERED that defendants’ motion to modify plaintiff’s
subpoenas duces tecum [Doc. # 183] is granted in part. The documents to be
produced by US Bank, the Business Bank of St. Louis, US Food Service, and Five Star
Insurance Agency shall be limited to the time period January 1, 2009 to the present.

IT IS FURTHER ORDERED that the deadline for production of the documents
responsive to the subpoenas is May 1, 2013.
IT IS FURTHER ORDERED that the motion to modify is denied in all other
respects.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of April, 2013.