Portillo et al v. Noonanju Incorporated et al

Filing 31

MEMORANDUM AND ORDER re 30 Motion to Compel: As set forth in the attached Memorandum and Order, Defendants' motion (ECF No. 30 ) is GRANTED. Further, Pantano's Gourmet Uniondale and North Shore Farms are hereby directed to obey and comply with the subpoenas served on November 8, 2024 and produce all requested documentation within their possession, custody, or control for inspection, copying, testing, or sampling of the material at Bell Law Group, 116 Jackson Avenue, Syosset , New York 11791 on April 3, 2025 at 2:00PM. PANTANO'S AND NORTH SHORE FARMS ARE HEREBY FOREWARNED AND CAUTIONED THAT IF THEY FAIL TO COMPLY WITH THE SUBPOENA AND THIS ORDER, THEY MAY BE SUBJECT TO CONTEMPT PROCEEDINGS FOR FAILURE TO COMPLY W ITH THE SUBPOENAS AND A COURT ORDER. Defendants are directed to serve through a licensed process server, by personal delivery a copy of this Memorandum and Order on Pantano's and North Shore Farms at their corporate address and file proof of service on ECF by March 14, 2025. So Ordered by Magistrate Judge James M. Wicks on 3/5/2025. (DF)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CESAR PORTILLO, NORMA LORENA SAGASTUME,
ROMEO UMANA, and YAKELIN KARINA CARRANZA,
individually and on behalf of all others similarly situated,
MEMORANDUM AND
ORDER

Plaintiffs,

2:24-cv-00782 (SJB) (JMW)
-againstNOONANJU INCORPORATED d/b/a FOOD FOR
THOUGHT, ANJU KATHURIA, and BOBBY KATHURIA,
as individuals,
Defendants.
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WICKS, Magistrate Judge:
Plaintiffs Cesar Portillo, Norma Lorena Sagastume, Romeo Umana, and Yakelin Karina
Carranza (collectively, “Plaintiffs”) commenced the underlying action on February 2, 2024
against Defendants Noonanju Incorporated, Anju Kathuria, and Bobby Kathuria (collectively,
“Defendants”) for alleged unpaid overtime wages pursuant to the Fair Labor Standards Act
(“FLSA”) and New York Labor Law (“NYLL”), as well as purported wage notice and wage
statement violations under the NYLL. (See generally ECF No. 1.) The parties are now before the
Court on Defendants’ motion pursuant to Federal Rule of Civil Procedure 45(d) seeking to
compel non-party witnesses Pantano’s Gourmet Uniondale (“Pantano’s”) and North Shore Farms
to comply with previously issued subpoenas seeking documents relating to Plaintiff Umana’s
employment with those companies. (ECF No. 30.)

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For the reasons stated herein, Defendants’ motion (ECF No. 30) is GRANTED and, as
such, Pantano’s and North Shore Farms are hereby directed to obey the subpoenas previously
served upon them on November 8, 2024 and produce all requested documentation within their
possession, custody, or control for inspection, copying, testing, or sampling of the material at
Bell Law Group, 116 Jackson Avenue, Syosset, New York 11791 on April 3, 2025 at 2:00PM.
BACKGROUND
Defendants employed Plaintiff Umana as a cook and manual laborer from January 2012
to March 2021. (ECF No. 1 at ¶ 44.) Plaintiff Umana asserts that he “regularly worked shifts
beginning at or around 7:00 a.m. each workday and ending at approximately 8:00 p.m. or later,
four (4) days per week, and from 7:00 a.m. to approximately 5:00 p.m. or later, two (2) days per
week. (Id. at ¶ 46.) As a result, Plaintiff Umana alleges that he was routinely required to work
approximately seventy-two (72) or more hours each week during the relevant statutory period.”
(Id. at ¶ 47.) Defendants were aware that Plaintiff Umana had previously worked at Pantano’s
and North Shore Farms while still employed by Defendants. (See ECF No. 30-1.)
Defendants first issued subpoenas for these documents to North Shore Farms and
Pantano’s on November 5, 2024 (see ECF No. 30-2), service having been completed on
November 8, 2024. (See ECF No. 30-3.) Service was effectuated by a process server personally
delivering a copy of the subpoena to the managers of each company. 1 Neither of the companies
responded to the subpoenas despite being commanded to produce the listed documents at Bell
Law Group, 116 Jackson Avenue, Syosset, New York 11791 on December 4, 2024 at 2:00p.m.
(ECF No. 30-2 at pp. 1-3.)

Defendants’ process server, Mitchell Raider, delivered a copy of the subpoena to Hector Doe, manager
of Pantano’s, and Jose Antoni, manager of North Shore Farms. (ECF No. 30-3.)
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The subpoena called for documents related to Mr. Umana’s employment records—such
as time sheets, attendance records, work schedules, and overtime documentation—from both
companies. (ECF No. 30-2 at pp. 1, 3.) Defendants aver that these requested records are
“essential, highly relevant, and critical to the claims in this case” and are “relevant and
proportional to the needs of the case, as it is necessary to counter Mr. Umana’s allegations.”
(ECF No. 30 at p. 2.) Specifically, Defendants contend these records will directly contradict
Plaintiff Umana’s claims regarding overtime and other wage-hour violations, as he could not
have worked the extensive hours he alleges for Defendants while simultaneously being employed
by North Shore Farms and Pantano’s. (Id.)
On December 11, 2024, following non-compliance, Defendants purportedly attempted to
communicate telephonically with both companies to ascertain whether the requested documents
and records would be provided. (See id.) When speaking with a representative from Pantano’s,
Defendants posit that neither an email address nor fax number was given by the company, and a
subsequent call to Pantano’s was ignored and not returned. (Id.) With respect to North Shore
Farms, Defendants were allegedly directed to send any subpoenas to the main store location.
(Id.) In response, Defendants faxed a copy of the subpoenas originally served on November 8, a
copy of the affidavit of service, a copy of Fed R. Civ. P. 45 (c), (d), (e), and (g), in addition to a
cover letter noting that North Shore Farms was served with a subpoena for documents
concerning Plaintiff Umana’s employment, North Shore Farms missed the December 4 deadline,
and compliance was demanded by December 20, 2024 at 2:00PM. (ECF No. 30-4.) Defendants
state that, to date, “neither company has provided any communication or response to the
subpoenas.” (ECF No. 30 at p. 2.)

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LEGAL STANDARD
Rule 45 empowers an attorney to sign and issue a subpoena. Fed R. Civ. P. 45(a)(3). “[A]
valid subpoena is a legal instrument, non-compliance with which can constitute contempt of
court.” Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1364 (2d Cir. 1991). Subpoenas
that are validly issued and properly served “under Rule 45(a)(3) operate as enforceable mandates
of the court on whose behalf they are served.” Freund v. Weinstein, 2009 U.S. Dist. LEXIS
109387, at *2 (E.D.N.Y. 2009). Rule 45 also permits the serving party “[a]t any time, on notice
to the commanded person” to “move the court for the district where compliance is required for
an order compelling production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). “Absent an
improperly issued subpoena or an ‘adequate excuse’ by the non-party, failure to comply with a
subpoena made under Rule 45 may be deemed a contempt of the court from which the subpoena
issued.” Beruashvili v. Hobart Corp., No. 2005-CV-1646 (ENV) (MDG), 2006 WL 2289199, at
*1 (E.D.N.Y. Aug. 8, 2006) (citing Rule 45(e), which is now Rule 45(g) as of the 2013
amendment).
Rule 45 applies to non-parties. Gov't Emps. Ins. Co. v. N. Med. Care, P.C., No. 20 CV
1214 (FB) (LB), 2021 WL 7906537, at *1 (E.D.N.Y. Nov. 3, 2021), report and recommendation
adopted sub nom. Gov't Emp. Ins. Co. v. N. Med. Care, P.C., No. 1:20-CV-01214 (FB) (LB),
2021 WL 7906536 (E.D.N.Y. Dec. 29, 2021). “A subpoena issued to a non-party pursuant to
Rule 45 is subject to Rule 26(b)(1)’s overriding relevance requirement.” Warnke v. CVS Corp.,
265 F.R.D. 64, 66 (E.D.N.Y. 2010) (internal quotes omitted). “The party issuing the subpoena
must demonstrate that the information sought is relevant and material to the allegations and
claims at issue in the proceedings.” Knight v. Local 25 IBEW, No. 14-cv-6497 (DRH) (AKT),
2016 U.S. Dist. LEXIS 45920, *4 (E.D.N.Y. Mar. 31, 2016) (citation omitted). However, once

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relevance is demonstrated, the party opposing the subpoena must come forth and demonstrate
“that the subpoena is over-broad, duplicative, or unduly burdensome.” Id. (citation omitted).
DISCUSSION
The record amply demonstrates that Defendants validly served the subpoenas on both
Pantano’s and North Shore Farms at the corporate addresses by personally delivering copies to
the managers of the respective companies. See ECF No. 30-3); Taylor Precision Prods. v.
Larimer Grp. Inc., No. 15-cv-04428 (ALC) (KNF), 2017 U.S. Dist. LEXIS 54603, at *11
(S.D.N.Y. Feb. 27, 2017) (noting, because Rule 45 does not provide guidance on what
constitutes personal service upon a corporation, service of a subpoena upon an officer or
managing agent is sufficient). Furthermore, according to Defendants, Pantano’s and North Shore
Farms failed to comply with the subpoenas despite being served with copies of the subpoenas on
November 8, 2024 as evidenced by the affidavits of service. (ECF No. 30-3.) These corporations
also failed to comply with Defendants additional attempts to obtain further compliance. Namely,
Pantano’s failed to return Defendants’ phone calls or produce the information sought, and North
Shore Farms neglected to comply with the subpoenas despite Defendants faxing the subpoena at
North Short Farms’ direction. (ECF No. 30 at pp. 2-3; ECF No. 30-4.) Additionally, the
subpoenas seek relevant information. The requested documents and records relate to Plaintiff’s
Umana’s employment with both companies and have the potential to negate Plaintiff Umana’s
claims of purported FLSA and NYLL violations by Defendants. (ECF No. 30 at pp. 2-3); see
Bhatt v. Patel, No. 18-CV-2063-ILG-SJB, 2020 U.S. Dist. LEXIS 262800, at *8 (E.D.N.Y. Oct.
19, 2020) (highlighting that a subpoena aimed at obtaining an employee’s time records would be
relevant to a wage claim defense).

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To date, neither Pantano’s nor North Shore Farms has filed an opposition to this motion
or moved to quash under Rule 45. The Court finds that, considering Pantano’s and North Shore
Farms’ failure to offer an adequate excuse for their non-compliance, enforcement of the
subpoenas is warranted. See Freund v. Weinstein, No. 08-CV-1469 (FB) (MDG), 2009 WL
4065585, at *1 (E.D.N.Y. Nov. 23, 2009) (enforcing valid non-party subpoena where party
seeking enforcement made prior attempts to secure compliance and non-party did not proffer
reasons to excuse non-compliance).
CONCLUSION
For the foregoing reasons, Defendants’ motion (ECF No. 30) is GRANTED. Further,
Pantano’s Gourmet Uniondale and North Shore Farms are hereby directed to obey and comply
with the subpoenas served on November 8, 2024 and produce all requested documentation within
their possession, custody, or control for inspection, copying, testing, or sampling of the material
at Bell Law Group, 116 Jackson Avenue, Syosset, New York 11791 on April 3, 2025 at 2:00PM.
PANTANO’S AND NORTH SHORE FARMS ARE HEREBY FOREWARNED AND
CAUTIONED THAT IF THEY FAIL TO COMPLY WITH THE SUBPOENA AND THIS
ORDER, THEY MAY BE SUBJECT TO CONTEMPT PROCEEDINGS FOR FAILURE
TO COMPLY WITH THE SUBPOENAS AND A COURT ORDER. Defendants are directed
to serve through a licensed process server, by personal delivery a copy of this Memorandum and
Order on Pantano’s and North Shore Farms at their corporate address and file proof of service on
ECF by March 14, 2025.
Dated: Central Islip, New York
March 5, 2025

S O O R D E R E D:
/S/

James M. Wicks

JAMES M. WICKS
United States Magistrate Judge
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