Nikonov v. Flirt Ny Inc. et al
OPINION AND ORDER: re: 70 MOTION for Leave to File subpoenas . filed by Ariel Chulpayev, Flirt Ny Inc., Violeta Chulpayev. To the extent that Defendants are treating the post-discovery subpoenas as trial subpoena s, the Court finds that they are not properly served. "Trial subpoenas are appropriate in certain circumstances, such as securing an original document previously disclosed during discovery, or for purposes of memory recollection or trial preparation." Revander v. Denman, No. 00-CV-01810 (RJH), 2004 WL 97693, at *1 (S.D.N.Y. Jan. 21, 2004). "However, when a [party] is aware of the existence of documents before the discovery cutoff date and issues discovery requests including subpoenas after the discovery deadline has passed, then the subpoenas and discovery requests should be denied." Id. (citing McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995)). For the foregoing reasons, Defendants' Letter Motion is DENIED. So Ordered. (Signed by Magistrate Judge Stewart D. Aaron on 6/4/2021) (js)
Case 1:19-cv-07128-SDA Document 73 Filed 06/04/21 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
Flirt NY, Inc., et al.,
STEWART D. AARON, United States Magistrate Judge:
Pending before the Court is Defendants’ Letter Motion “seeking permission to issue four
(4) subpoenas for production of employment documents to former employers of plaintiff both
before and after his employment with [Defendants].” (Defs.’ Ltr. Mot., ECF No. 70.) For the
reasons stated below, Defendants’ Letter Motion is DENIED.
On July 30, 2019, Plaintiff Denys Nikonov (“Nikonov”) filed his Complaint in this action
against his former employer, Defendants Flirt Ny Inc. d/b/a Flirt Beauty Boutique, Violeta
Chulpayev and Ariel Chulpayev (collectively, “Defendants”), asserting claims under the Fair Labor
Standards Act and the New York Labor Law (“NYLL”) for failure to pay the minimum wage, failure
to pay for overtime work and failure to pay the spread of hours premium; claims under the NYLL
for failure to provide wage notices and statements; and claims under the New York State and City
Human Rights Laws for disability discrimination. (Compl., ECF No. 1, ¶¶ 88-154.) On April 30,
2020, the Court entered a Case Management Plan setting September 30, 2020 as the deadline
for completion of fact discovery. (Case Mgt. Plan, ECF No. 38.) No extension of the discovery
deadline was sought by Defendants.
Case 1:19-cv-07128-SDA Document 73 Filed 06/04/21 Page 2 of 3
By their Letter Motion, Defendants seek leave to serve document subpoenas on four of
Nikonov’s former employers, i.e., Bon Bon Salon, Matti Hair Salon, Sophistique Beauty Salon and
Eksprovocator Hair Club (the “Former Employers”). 1 (See Subpoenas, ECF No. 70-1.) In each of
the subpoenas, Defendants seek the production of “all records of employment of plaintiff.” (Id.)
Nikonov opposes Defendants’ Letter Motion. (See Pl.’s Ltr. Resp., ECF No. 71.)
Under Rule 16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The Rule
16(b)(4) “good cause” inquiry is primarily focused upon the diligence of the movant in attempting
to comply with the existing scheduling order and the reasons advanced as justifying that order's
amendment. See Kassner v. 2nd Ave. Delicatessen, 496 F.3d 229, 244 (2d Cir. 2007) (citation
omitted). The burden of demonstrating good cause rests with the movant. See Holmes v.
Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (citation omitted).
The Court finds that Defendants have not demonstrated good cause for their failure to
serve subpoenas on the Former Employers prior to the expiration of the discovery deadline. The
reason given by Defendants for their failure to timely serve the subpoenas appears to be that
they became aware of the need for the subpoenas when they took Plaintiff’s deposition on
September 29, 2020. (See Defs.’ 5/25/21 Ltr. #2 (“While the factual discovery cut off date was
Defendants previously had issued the subpoenas on May 25, 2021 (see ECF Nos. 63-66), but withdrew
them the same day. (See Defs.’ 5/25/21 Ltr. #1, ECF No. 67.) Again, the same day, Defendants filed a letter
stating that he could issue his subpoenas “as trial subpoenas once trial is set,” but that he would be
seeking leave now “to limit the inconvenience to [t]he former employe[r]s.” (See Defs.’ 5/25/21 Ltr. #2,
ECF No. 68.)
Case 1:19-cv-07128-SDA Document 73 Filed 06/04/21 Page 3 of 3
9/30/2020, plaintiff’s deposition was not conducted until 9/29/2020 and it was his testimony at
said deposition that lead [sic] to said requests.”).) Defendants offer no justification for their
waiting another eight months to serve the subpoenas, and there is none.2
To the extent that Defendants are treating the post-discovery subpoenas as trial
subpoenas, the Court finds that they are not properly served. “Trial subpoenas are appropriate
in certain circumstances, such as securing an original document previously disclosed during
discovery, or for purposes of memory recollection or trial preparation.” Revander v. Denman, No.
00-CV-01810 (RJH), 2004 WL 97693, at *1 (S.D.N.Y. Jan. 21, 2004). “However, when a [party] is
aware of the existence of documents before the discovery cutoff date and issues discovery
requests including subpoenas after the discovery deadline has passed, then the subpoenas and
discovery requests should be denied.” Id. (citing McNerney v. Archer Daniels Midland Co., 164
F.R.D. 584, 588 (W.D.N.Y. 1995)). 3
For the foregoing reasons, Defendants’ Letter Motion is DENIED.
New York, New York
June 4, 2021
STEWART D. AARON
United States Magistrate Judge
Nor do Defendants provide any explanation—e.g., by identifying specific testimony—to make credible
their conclusory claim that Plaintiff’s deposition “led” them to request the subpoenas issued to Bon Bon
Salon, Matti Hair Salon and Sophistique Beauty Salon, each of which Plaintiff had identified as a former
employer months earlier, in interrogatory responses dated June 30, 2020. (See Pl.’s Ltr. Resp. at 3.)
As an independent basis for denying Defendants leave to serve the subpoenas, the Court finds that the
subpoenas, as drafted, are not proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). Requests
to the Former Employers for “all records” of Plaintiff’s employment constitute a fishing expedition.
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