Franklin v. Whole Foods Market Group, Inc. et al

Filing 67

ORDER denying without prejudice 66 Letter Motion for Discovery. Application DENIED without prejudice. Plaintiff's motion to quash is not in compliance with the Court's Individual Practices with respect to discovery disputes. See Rule 3(B) of the Undersigned's Individual Practices in Civil Cases. Plaintiff is welcome to re-raise the discovery dispute with the Court in compliance with Rule 3(B), which requires that Plaintiff's counsel first meet and confer in good faith with opposing counsel, among other requirements. The Clerk of Court is respectfully directed to close the open motion at docket entry 66. SO ORDERED. (Signed by Judge Valerie E. Caproni on 5/10/2022) (tg) Modified on 5/10/2022 (tg).

Case 1:20-cv-04935-VEC Document 67 Filed 05/10/22 Page 1 of 4

LEE LITIGATION GROUP, PLLC
148 WEST 24TH STREET, 8TH FLOOR
NEW YORK, NY 10011
TEL: [phone]
FAX: [phone]
[e-mail]
WRITER’S DIRECT:

[phone]
[e-mail]

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED:
May 10, 2022

Via ECF:
The Honorable Valerie E. Caproni, U.S.D.J.
United States District Court
Southern District of New York
40 Foley Square
New York, NY 10007
Re:

MEMO ENDORSED

Franklin v. Whole Foods Market Group, Inc. et al
Case No. 20-cv-04935-VEC

Dear Judge Caproni:
We are counsel to Plaintiff in the above-captioned matter. We write to move the Court to
quash four subpoenas that Defendants Whole Foods Market Group, Inc. and Amazon.com, Inc.
(“Defendants) either have served or intend to serve upon four non-parties.
On May 5, 2022, Defendants’ counsel provided us with copies of subpoenas that it planned
to serve on three corporate entities: (a) FedEx Ground Package Systems, Inc., (b) Fresh Direct
LLC, and (c) Vertex Global Solutions, Inc. These three subpoenas are attached to this letter motion
as Exhibits A, B, and C respectively. FedEx Ground Package Systems, Inc. is the defendant in
another conviction history-based discrimination class action initiated by Plaintiff Franklin. The
action was originally filed on March 12, 2021, in the Southern District as Franklin v. FedEx
Ground Package System, Inc (21-cv-02204). It has since been dismissed and refiled in New York
Supreme Court under the same name (Index No. 528068/2021) for the purpose of effecting a classwide settlement, which received preliminary approval from that court on March 1, 2022 (Dkt. No.
14). Fresh Direct LLC and Vertex Global Solutions, Inc. are the two defendants in another Fair
Chance Act action brought by Plaintiff Franklin, currently pending in the Southern District as
Franklin v. Vertex Global Solutions, Inc. et al., (20-cv-10495). Defendants also stated that they
intended to subpoena another corporate entity called Dutch Express LLC but without providing us
with a copy of the anticipated subpoena. Dutch Express is a logistics company for which Plaintiff
worked for about six (6) months in or around 2018 before he filed a complaint with a government
agency alleging wage violations (not discrimination of any kind).
All three subpoenas make the same document requests, reproduced here:
1. All DOCUMENTS and COMMUNICATIONS CONCERNING PLAINTIFF’S
application(s) for employment with YOU, including, but not limited to, interview notes,
and any resumes, curriculum vitae, cover letters, emails, and application forms he
submitted in connection therewith.

Case 1:20-cv-04935-VEC Document 67 Filed 05/10/22 Page 2 of 4

2. All DOCUMENTS and COMMUNICATIONS CONCERNING PLAINTIFF’S
BACKGROUND CHECK(s).
3. All DOCUMENTS and COMMUNICATIONS CONCERNING the outcome of
PLAINTIFF’S application(s) for employment with YOU, including any offer(s) of
employment made by YOU to PLAINTIFF, including conditional offers of employment,
and any DOCUMENTS or COMMUNICATIONS CONCERNING PLAINTIFF’S
application(s) for employment with YOU.
4. All DOCUMENTS and COMMUNICATIONS CONCERNING the reasons
YOU rejected PLAINTIFF’S application(s) for employment, if applicable.
5. All DOCUMENTS CONCERNING the job description for the position for
which PLAINTIFF applied and the terms of compensation for that position, including
without limitation salaries, wages, bonuses, commissions, and tips.

The Court should quash these subpoenas because it is clear that the requested information
bears no logically conceivable relationship to Defendants’ liability in this action. Either
Defendants violated the various statutes under which Plaintiff brough this claims or they did not.
What is certain, however, is that the answer is utterly unaffected by what may have transpired
during Plaintiff’s previous employment or when he applied for other jobs. Nor can Defendants
argue that the information requested can shed light on Plaintiff’s typicality or adequacy as a class
representative, given that the Court has bifurcated discovery, postponing discovery related to class
certification (at Defendants’ request). The fair inference, then, is that Defendants are seeking
merely to harass Plaintiff by threatening the disclosure of his private information while
simultaneously depleting the resources of Plaintiff’s counsel by forcing them to fend off this
unwarranted gambit to intrude upon Plaintiff’s privacy.
Motions to quash subpoenas are “entrusted to the sound discretion of the district court.” In
re Fitch, Inc. v. UBS PaineWebber, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation
marks omitted). However, it should be “undisputed that Plaintiff has standing to move to quash the
non-party subpoenas,” given that he has “a legitimate privacy interest in information regarding his
subsequent [and prior] employment [applications].” Warnke v. CVS Corp., 265 F.R.D. 64, 66,
2010 U.S. Dist. LEXIS 16399, *3 (E.D.N.Y. Feb. 23, 2010). The Court should grant Plaintiff’s
motion because Defendants cannot “show how the requested evidence is relevant to their defense
that they had non-pretextual reasons for [declining] Plaintiff's employment [application].”
Dowling v. New York-Presbyterian/Weill Cornell Med. Ctr., 2020 U.S. Dist. LEXIS 47001, *6-7
(S.D.N.Y. March 16, 2020). While Defendants’ goal is doubtless to discredit Plaintiff and his
claims by any means necessary, “an attack on plaintiff's credibility by introducing evidence of his
character in another employment setting is likely inadmissible propensity evidence
under [Federal] Rule [of Evidence] 404(a).” Lewin v. Nackard Bottling Co., 2010 U.S. Dist.
LEXIS 123738, *5, 2010 WL 4607402 (D. Ariz. Nov. 4, 2010). Defendants’ intention to subpoena
Dutch Express is particularly absurd, since Plaintiff’s conflict with that entity had nothing to do
with his conviction history, and his job performance there can reveal nothing about whether
Defendants’ adverse action was lawful. See Henry v. Morgan’s Hotel Grp., Inc., 2016 U.S. Dist.
LEXIS 8406, 2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016) (quashing a subpoena because
“[e]ven if [Plaintiff] was not an ‘exceptional’ waiter at his prior jobs (whatever that may mean), it
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Case 1:20-cv-04935-VEC Document 67 Filed 05/10/22 Page 3 of 4

is not remotely apparent what difference that would make regarding the allegations of
discrimination and retaliation he has made in this case.”).
Given the patent frivolity of Defendants’ anticipated subpoenas, the Court should also
sanction Defendants’ counsel for their conduct under 28 U.S.C. § 1927 and the Court’s inherent
power to sanction. A court has the inherent power to sanction an attorney who has “acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32,
45-46 (1991) (citation omitted). And 28 U.S.C. § 1927 provides that a court may require an
attorney who “multiplies the proceedings in any case unreasonably and vexatiously . . . to satisfy
personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.” For reasons that have been explained, that is precisely the situation at hand, and the
Court should, accordingly, compel Defendants to pay Plaintiff’s attorneys fees for the writing of
this motion and any subsequent effort that Plaintiff’s counsel are required to expend as a result of
Defendants’ vexatious behavior.
Plaintiff notes that these subpoenas are only the latest example of this vexatiousness, which
began soon after the Court denied Defendants’ motion to dismiss. The Court will recall
Defendants’ anticipated motion for judgment on the pleadings the purpose of which was to dismiss
Plaintiff’s claims against Whole Foods notwithstanding the Court’s finding that Plaintiff had
plausibly alleged that Amazon and Whole Foods were joint employers (without ruling on aiderand-abettor liability, which has a much lower bar). While the Court did express some reservations
about this determination, that does not change the fact that Defendants’ renewed bid to dismiss
claims against Whole Foods would be collaterally estopped by the Court’s Order of January 26,
2022, denying Defendants’ motion to dismiss. The Court wisely dismissed the anticipated 12(c)
motion as pointless at the parties’ April 6, 2022, conference, which has thankfully deterred
Defendants (for the time being, at least).
There is more. A week before that conference, Defendants served Plaintiffs’ counsel with
a Rule 11 letter threatening them with sanctions should they fail to drop Plaintiff’s claims against
Whole Foods—again, after this Court had already ruled that those claims were adequately pled.
See Exhibit D. In an irony that was utterly lost on Defendants’ counsel, it was their planned Rule
11 motion, and not Plaintiff’s reliance on a prior judicial determination (however qualified), that
truly ran afoul of Rule 11. Plaintiff’s counsel shrugged off the threat, which, like the 12(c) motion,
never materialized. Even so, it helpfully illustrates the pattern of legally frivolous and vexatious
behavior of which these subpoenas are the latest instance. The Court should put an end to this by
imposing sanctions on Defendants’ counsel.
We thank Your Honor for considering our arguments.
Respectfully submitted,
/s/ CK Lee
C.K. Lee, Esq.
cc: All parties via ECF

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Case 1:20-cv-04935-VEC Document 67 Filed 05/10/22 Page 4 of 4

SO ORDERED.

HON. VALERIE CAPRONI
UNITED STATES DISTRICT JUDGE