Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 59

ORDER granting 46 BACE's Motion to Quash; denying 48 Plaintiff's Motion for Contempt; granting 54 Plaintiff's Motion to Amend/Correct her response in opposition. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/28/16. (sem)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JESSICA HOGAN,
Plaintiff,
Civil Action 2:15-cv-2883
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

CLEVELAND AVE RESTAURANT INC.
dba SIRENS, et al.,
Defendants.

OPINION AND ORDER
Plaintiff brings this wage lawsuit under the Fair Labor Standards Act (“FLSA”) against
Defendants related to work performed in various roles at a Columbus-area adult entertainment
club known as “Sirens.” This matter is before the Court for consideration of the Buckeye
Association of Club Executives’ (“BACE”) Motion to Quash Subpoena (ECF No. 46), Plaintiff
Jessica Hogan’s (“Plaintiff”) Response in Opposition (ECF No. 49) and BACE’s Reply in
Support of its Motion to Quash (ECF No. 52). For the reasons that follow, the Motion to Quash
is GRANTED.
I.
On November 23, 2016, Plaintiff served a subpoena for deposition and documents upon
BACE. (ECF No. 49, Ex. 1 ¶ 3.) The subpoena commanded BACE to produce documents and a
representative for a deposition on December 7, 2016, at 10:00 a.m. at the office of Plaintiff’s
counsel. (Id. at Ex. 1.) On December 6, 2016, Plaintiff’s counsel reached out to BACE to
confirm that a representative would attend the next morning’s deposition. After a series of phone

calls attempting to track down a response, Greg Flaig, BACE’s secretary and executive director,
left a voicemail for Plaintiff’s counsel stating that he was “supposed to be at a deposition
tomorrow morning at 10” but was ill and needed to reschedule. (Id. at Ex. 1 ¶ 9.) Plaintiff’s
counsel returned the call and left a message, stating that the deposition could be rescheduled for
December 20, 2016. He also sent an email to Mr. Flaig, reflecting the same. (Id. ¶ 10.) No
response was received. (Id. ¶ 11.) On December 7, 2016, at 10:26 p.m., BACE filed a Motion to
Quash the subpoena. (ECF No. 46.)
II.
Plaintiff asserts that BACE’s Motion to Quash is untimely. Rule 45 of the Federal Rules
of Civil Procedure governs third-party subpoenas. Fed. R. Civ. P. 45. Rule 45 permits parties in
legal proceedings to command a non-party to attend a deposition, produce documents, and/or
permit inspection of premises. Fed. R. Civ. P. 45(a)(1). The Rule provides that a court may
quash or modify a subpoena upon “timely” motion. Fed. R. Civ. P. 45(d)(3).
BACE asserts that its Motion is timely and points out that Plaintiff’s Motion
misrepresents the date upon which the subpoena was served as November 22, 2016, when it was
actually served on November 23, 2016. Plaintiff subsequently filed a Motion to Amend/Correct
her Response in Opposition to the Motion to Quash seeking to amend the date of service from
November 22, 2016 to November 23, 2016, but asserting that the service date is irrelevant to the
issue of timeliness. (ECF No. 54.) Plaintiff is correct that the service date is irrelevant to the
analysis of timeliness. Nevertheless, the Motion to Amend/Correct is GRANTED. (ECF No.
54.)
Plaintiff argues that, although the rule does not define timely, “[i]t is well settled that, to
be timely, a motion to quash a subpoena must be made prior to the return date of the subpoena.”

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F.T.C. v. Trudeau, No. 5:12-MC-35, 2012 WL 5463829, at *3 (N.D. Ohio Nov. 8, 2012)
(quoting Estate of Ungar v. Palestinian Auth., 451 F. Supp. 2d 607, 610 (S. D. N. Y. 2006)); see
also Centennial Bank v. Servisfirst Bank Inc., No. 8:16-cv-88-T-36JSS, 2016 WL 4163560, at *3
(M.D. Fla. Aug. 5, 2016) (collecting cases holding that motions to quash filed after the time for
compliance are untimely). That rule, however, is not absolute. Under “unusual circumstances
and for good cause shown, failure to make timely objection to a subpoena will not bar
consideration of [an] objection.” Trudeau, 2012 WL 5463829, at *3. “In determining whether
‘unusual circumstances’ and ‘good cause’ exist, a court should examine whether: (1) the
subpoena is overbroad on its face and exceeds the bounds of fair discovery; (2) the subpoenaed
witness is a non-party acting in good faith; and (3) counsel for [BACE] and counsel for
subpoenaing party were in contact concerning [BACE’s] compliance prior to the time [BACE]
challenged legal basis for the subpoena.” Id. at *4.
Here, the Court is persuaded BACE’s motion was timely due to several factors. First, the
Motion to Quash was filed some twelve hours after the designated time for compliance with the
subpoena on the same date that compliance was due. Second, a BACE corporate representative
had already communicated to Plaintiff’s counsel that no one would be appearing at the
designated time because he was ill. At the time the Motion to Quash was filed at 10:26 p.m. on
December 7, Plaintiff had already suggested a future date—December 20—as the time for
deposing BACE’s representative. Third, BACE is a third-party who had not yet retained counsel
prior to filing its Motion to Quash and was acting in good faith. Finally, as set forth below, the
subpoena is overbroad on its face and exceeds the bounds of proportional discovery. As a result,
the Motion to Quash is timely.

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III.
Rule 45 of the Federal Rules of Civil Procedure governs third-party subpoenas. Fed. R.
Civ. P. 45. Rule 45 permits parties in legal proceedings to command a non-party to attend a
deposition, produce documents, and/or permit inspection of premises. Fed. R. Civ. P. 45(a)(1).
The Rule provides that the person commanded to produce documents may serve an objection on
the party or attorney designated in the subpoena within the earlier of fourteen days after the
subpoena is served or the time specified for compliance. Fed. R. Civ. P. 45(d)(2)(B). Upon a
timely motion to quash, a court “must quash or modify a subpoena” that “fails to allow a
reasonable time to comply,” “requires disclosure of privileged or other protected matter, if no
exception or waiver applies,” or “subjects a person to undue burden.” Fed. R. Civ. P.
45(d)(3)(A).
BACE asserts that the subpoena should be quashed because it is overbroad and unduly
burdensome. The subpoena requests “all documents relating to BACE’s members, shows,
training, lease agreements, and confidential business strategies as to mergers.” (ECF No. 46-1.)
The subpoena lacks specific dates or time frames of requested information. According to BACE,
the time and expense necessary to gather such information over its entire existence would be
unduly burdensome and expensive. Additionally, BACE argues, the subpoena is irrelevant as it
seeks information regarding “lease agreements” Plaintiff posits are at the heart of the case. But,
BACE maintains, FLSA violations are decided based on the behavior between the employer and
the alleged employee, rather than signed agreements.
In determining whether a subpoena imposes an “undue burden” on a witness, courts looks
to the following factors: “relevance, the need of the party for the documents, the breadth of the
document request, the time period covered by it, the particularity with which the documents are

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described and the burden imposed.” Am. Elec. Power Co., Inc. v. U.S., 191 F.R.D. 132, 136
(S.D. Ohio 1999) (quoting Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S. D. N.
Y. 1996)). The Court must also seek to balance the need for discovery with the burden imposed
on the subject of the subpoena, with the status of a recipient as a non-party being a factor that
weighs against disclosure. Id (citing Katz v. Batavia Marine & Sporting Supplies, 984 F.2d 422,
424 (Fed. Cir. 1993)). Establishing relevance is the burden of the party that issued the subpoena.
Id.
Here, the Court finds that the factors weigh in favor of quashing the subpoena as unduly
burdensome. First, Plaintiff has failed to establish the relevance of the information sought to its
underlying FLSA claims. As BACE argues, the FLSA claims being prosecuted by Plaintiff are
predicated upon the business model of the Defendants in this action. That is to say, the
relationship between the Plaintiff and her employer, specifically, her compensation arrangement,
and the manner in which Defendants applied it to her and other similarly situated individuals, is
determinative of the outcome of the case. Compensation arrangements, or “lease agreements” at
other similarly situated businesses do not bear on Plaintiff’s actual compensation. Information
regarding BACE, its members, shows, training and “lease agreements,” therefore, is not
sufficiently relevant to this action. Second, the information requested is overbroad, covering
indefinite periods of time and could have been described with more particularity. Third,
responding would impose a significant and undue burden on third-party BACE. As a non-party,
BACE is “entitle[d] to consideration regarding expense and inconvenience.” Fed. R. Civ. P.
45(d)(2)(B)(ii).1 As a result, BACE’s Motion to Quash is hereby GRANTED. (ECF No. 46.)

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Plaintiff concedes that, through this subpoena, she is trying to get to the bottom of what she
suspects is collusion between BACE and its members across Ohio “to deny dancers their legally
guaranteed wages by perpetrating the fiction that they are ‘entertainer tenants’ of the clubs where
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In light of this ruling, Plaintiff’s Motion for Contempt based on BACE’s failure to
comply with the subpoena is DENIED. (ECF No. 48.)
IV.
For the reasons stated above, Plaintiff’s Motion to Amend/Correct her Response in
Opposition (ECF No. 54) is GRANTED, BACE’s Motion to Quash (ECF No. 46) is
GRANTED, and Plaintiff’s Motion for Contempt based on BACE’s failure to comply with the
subpoena (ECF No. 48) is DENIED.
IT IS SO ORDERED.

Date: December 28, 2016

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

they dance, rather than employees.” (ECF No. 49; P. Mem. Opp., at p. 5.) At this juncture, this
lawsuit is about one club and its pay practices with respect to its dancers and/or bartenders, and
not a conspiracy between a business association and its members.
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