BOYINGTON v. PERCHERON FIELD SERVICES, LLC

Filing 152

MEMORANDUM OPINION AND ORDER granting in part and denying in part #145 Motion for Sanctions, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 5/12/2016. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC BOYINGTON, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
PERCHERON FIELD SERVICES, LLC,
Defendant.

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CIVIL ACTION NO. 3:14-cv-90
JUDGE KIM R. GIBSON

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MEMORANDUM OPINION AND ORDER
I.

Introduction
This case arises from alleged violations of the Fair Labor Standards Act of 1938, as

amended (FLSA) (29 U.S.C. § 201 et seq.), and the Pennsylvania Minimum Wage Act (PMWA)
(43 P.S. § 33.101 et seq.). Presently before the Court is Plaintiffs’ Emergency Motion for
Sanctions. (ECF No. 145.) For the reasons that follow, the Court will GRANT IN PART and
DENY IN PART Plaintiffs’ motion.
II.

Jurisdiction and Venue
The Court exercises jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and

1367(a). Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b).
III.

Background1
Representative Plaintiff Boyington commenced this action by filing a complaint on May

7, 2014, alleging violations of the FLSA, as amended (29 U.S.C. § 201 et seq.), and the PMWA (43

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The Court detailed the factual background of this case in its Memorandum Opinion and Order dated
June 15, 2015. (ECF No. 96.) Because familiarity with that Memorandum Opinion and Order is presumed,
this section is limited to the facts relevant to the disposition of the instant motion.

P.S. § 333.101 et seq.), and seeking damages for non-payment of overtime wages for himself and
for all others similarly situated. (ECF No. 1 ¶ 1.) On October 22, 2014, Representative Plaintiff
Boyington filed a motion to certify the class conditionally. (ECF No. 45.) On October 31, 2014, a
representative of Defendant placed an unsolicited phone call directly to Plaintiff, during which
the parties discussed a potential settlement of Plaintiff’s claims. (ECF No. 65 at 1-2; ECF No. 68
at 4.) Defendant filed a motion to enforce a purported settlement agreement on November 12,
2014, arguing that during the phone call, Plaintiff and Defendant had reached a binding
settlement agreement. (ECF No. 65 at 1; ECF No. 64.) On June 15, 2015, this Court issued a
Memorandum Opinion and Order denying Defendant’s motion to enforce settlement, (ECF No.
96), and on March 24, 2016, this Court denied Defendant’s Motion for Reconsideration of the
order denying the motion to enforce settlement, and further denied Defendant’s motion for
interlocutory appeal of that order. (ECF No. 141.)
Presently before the Court is Plaintiffs’ Emergency Motion for Sanctions. (ECF No. 145.)
Plaintiffs argue that sanctions should be imposed against Defendant for its service of subpoenas
on some or all of the named and opt-in Plaintiffs’ mobile phone carriers for their wireless call
records without first notifying Plaintiffs’ counsel as required by Federal Rule of Civil Procedure
45(a)(4). (Id. ¶¶ 1-4.) Plaintiffs assert that this incident also resulted in a violation of
Pennsylvania Rule of Professional Conduct 4.2—Communication with a Person Represented by
Counsel. (Id. ¶ 5.) Plaintiffs seek the following relief: (1) an emergency hearing on the issue of
sanctions; (2) an order requiring Defendant to provide all subpoenas issued to the mobile
telephone carriers to Plaintiffs’ Counsel; (3) an order quashing all subpoenas with prejudice; (4)
an order precluding Defendant from using any documents obtained in response to the
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subpoenas in this or any other proceeding; (5) the destruction of any documents obtained in
response to the subpoenas, with a certificate of destruction filed with the Court; (6) an award of
the attorneys’ fees and costs expended by Plaintiffs in litigating this motion; (7) punitive
sanctions ordered against Defendant’s counsel; and (8) a final warning to Defendant that the
Court may enter non-monetary sanctions should Defendant continue to engage in
communication directly with Plaintiffs in this case. (Id. at 5.)
Defendant filed a response to Plaintiffs’ motion on May 3, 2016. (ECF No. 146.) On May
9, 2016, the Court granted Plaintiffs leave to file a reply, and Plaintiffs filed a reply on that same
day. (ECF No. 151.) The Court is satisfied that the matter has been fully briefed and is ripe for
disposition. The Court therefore finds that a hearing is unnecessary and would needlessly add
to the costs of litigating the instant motion. For the reasons stated below, the Court will grant in
part and deny in part Plaintiffs’ motion for sanctions.
IV.

Discussion
Federal Rule of Civil Procedure 45 authorizes an attorney for a party to issue a subpoena

requiring a non-party to appear at a deposition, produce electronically stored information, or
produce other documents. FED.R.CIV.P. 45. Pursuant to Rule 45(a)(4), when a subpoena
“commands the production of documents, electronically stored information, or tangible things
or the inspection of premises before trial, then before it is served on the person to whom it is
directed, a notice and a copy of the subpoena must be served on each party.” FED.R.CIV.P.
45(a)(4); Coleman-Hill v. Governor Mifflin Sch. Dist., 271 F.R.D. 549, 552 (E.D.Pa. 2010) (“A party
issuing a subpoena to a non-party for the production of documents during discovery must
provide prior notice to all parties to the litigation.”). “The essential purpose of notice is to afford
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other parties an opportunity to object to the production or inspection and to obtain the
materials at the same time as the party who served the subpoena.” Black v. Youngue, 2014 U.S.
Dist. LEXIS 175172, at *6-7 (W.D.Pa. Dec. 19, 2014) (internal quotations omitted).
Defendant does not dispute that it failed to provide notice to Plaintiffs’ counsel before
serving subpoenas on the third party mobile telephone carriers in violation of Rule 45. (ECF No.
146 at 2.) The attorney who executed and oversaw the preparation of the third party subpoenas
on behalf of Defendant, Sarah J. Miley, Esq., filed a declaration wherein she states that a
misunderstanding between her and a paralegal resulted in the subpoenas being served on the
mobile carriers without prior notice being provided to opposing counsel. (ECF No. 146-1 ¶¶ 23.) Defendant therefore states that the failure to comply with Rule 45 was inadvertent. (Id. ¶ 13.)
Moreover, Defendant has taken steps to rectify the error. Attorney Miley stated that
Defendant only received a response from one mobile carrier for one Plaintiff, and that
Defendant’s counsel did not review that response. (Id. ¶¶ 11-12.) In addition, on May 2, 2016,
three days after having been informed by letter that opposing counsel had not received notice of
the subpoenas, and after having confirmed that opposing counsel had not been sent notice of
the third party subpoenas, Attorney Miley sent correspondence to the mobile carriers who had
not yet responded, withdrawing the subpoenas and informing those mobile carriers that no
documents should be produced. (Id. ¶¶ 4-14.) Defendant produced to Plaintiffs the subpoenas,
letters withdrawing the subpoenas, and the mobile records for the one Plaintiff that were
received by Defendant. (Id. ¶ 18.)
Defendant also disputes Plaintiffs’ assertion that it was using the mobile carriers as a
conduit to communicate directly with Plaintiffs in violation of the Pennsylvania Rules of
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Professional Conduct, and states that it issued the subpoenas “for the sole purpose of obtaining
relevant discovery regarding the date, time and length of Plaintiffs’ work-related telephone
calls.” (ECF No. 146 at 5.)
In reply, Plaintiffs argue that “there are a number of factors that undermine
[Defendant’s] claim of inadvertent error.” (ECF No. 151 at 1.) Plaintiffs argue that the
circumstances surrounding Defendant’s service of the subpoenas indicate that Defendant acted
in bad faith and with the intent to intimidate potential class members from participating in the
law suit. (Id. at 1-2.) Plaintiffs also argue that Defendant’s attempt to distinguish cases that have
imposed harsh sanctions is unsuccessful and unreasonable. (Id. at 2 n. 1.)
The Court finds that the harsh sanctions Plaintiffs seek would be inappropriate given the
facts at hand. The Court credits the Declaration of Attorney Miley and finds that Defendant’s
violation of Rule 45 was not committed in bad faith. Therefore, the Court finds this case
distinguishable from those cases cited by Plaintiffs in which the courts found that discovery
violations were committed in bad faith and thus warranted the imposition of harsh sanctions,
including attorneys’ fees and monetary sanctions. See, e.g., Black, 2014 U.S. Dist. LEXIS, at *11
(finding bad faith and awarding sanctions where party was actively engaging in discovery,
including acquiring documents, without court approval or notice to opposing counsel, as many
as 40 days after discovery had closed); Mid-Atl. Constructors, Inc. v. Stone & Webster Constr. Inc.,
231 F.R.D. 465, 467-68 (E.D.Pa. 2005) (imposing sanctions after finding that Defendant’s conduct
was not inadvertent or negligent, but rather was intentional and undertaken in bad faith, when
it served a subpoena after the discovery deadline and without notice to opposing counsel). See
also Coleman-Hill, 271 F.R.D. at 555 (citing In re Prudential Ins. Co. A. Sales Practice Litig. Agent
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Actions, 278 F.3d 175, 181 (3d Cir. 2002)) (noting that attorneys’ fees may be awarded where the
court finds that a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons).
The Court also finds that the subpoenas were issued for a proper discovery purpose and were
not issued for the purpose of communicating with Plaintiffs in violation of the Pennsylvania
Rules of Professional Conduct.
Nevertheless, the Court notes that any violation of Rule 45, regardless of whether it is
committed in bad faith, is a serious violation of the federal rules which deprives opposing
counsel of the important opportunity to inspect and object to third party subpoenas. Therefore,
while the Court finds that attorneys’ fees or punitive monetary sanctions would be
disproportionate to the violation in this case, the Court finds that certain of Plaintiffs’ requests
for relief are warranted under the circumstances. See Spencer v. Steinman, 1999 U.S. Dist. LEXIS
23387 (E.D.Pa. March 1, 1999) (vacating imposition of attorneys’ fees and monetary sanctions
because petitioner did not knowingly or intentionally cause the violation to occur, but
reaffirming the imposition of nonmonetary sanctions because petitioner’s conduct was at least
negligent).
The Court therefore finds that relief is proper as follows: (1) To the extent Defendant’s
counsel has not already done so, Defendant’s counsel shall provide to Plaintiffs’ counsel all
subpoenas issued to Plaintiffs’ mobile telephone carriers; (2) All such subpoenas shall be
quashed without prejudice. However, the Court finding that Defendant’s violation of Rule 45
was not committed in bad faith, and it being undisputed that the relevant material is
discoverable, the Court denies Plaintiffs’ request that these subpoenas be quashed with
prejudice; (3) Defendant shall be precluded from using any documents obtained in response to
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the subpoenas issued in violation of Rule 45 in this or any other proceeding; and (4) Defendant
shall destroy any documents obtained in response to the subpoenas issued in violation of Rule
45 and Defendants shall file with the Court a certificate of destruction.
V.

Conclusion
For the reasons stated above, Plaintiffs’ Emergency Motion for Sanctions is granted in

part and denied in part. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC BOYINGTON, on behalf of himself
and all others similarly situated,
Plaintiff,

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)
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v.

CIVIL ACTION NO. 3:14-cv-90
JUDGE KIM R. GIBSON

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PERCHERON FIELD SERVICES, LLC,

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Defendant.

ORDER
AND NOW, this

of May, 2016, upon consideration of Plaintiffs'

Emergency Motion for Sanctions (ECF No. 145), and in accordance with the foregoing
memorandum opinion, IT IS HEREBY ORDERED that the motion is GRANTED IN PART and
DENIED IN PART as follows:

A. Plaintiffs' request for an emergency hearing on the issue of sanctions is DENIED;
B. To the extent Defendant has not already done so, Plaintiffs' request that Defendant
provide to Plaintiffs' counsel all subpoenas issued to Plaintiffs' mobile telephone carriers
is GRANTED. Defendant shall provide any such subpoenas within seven days of the
entry of this order;
C. Plaintiffs' request that the subpoenas issued by Defendant in violation of Federal Rule of
Civil Procedure 45 be quashed with prejudice is DENIED IN PART. These subpoenas
are hereby quashed without prejudice to Defendant's ability to reissue them in
compliance with FRCP 45(a)(4);

D. Plaintiffs' request that Defendant be precluded from using any documents obtained in
response to the subpoenas issued in violation of FRCP 45(a)(4) is GRANTED. It is
hereby ordered that Defendant shall not make any use of the documents obtained in
violation of FRCP 45(a)(4) in this or any other proceeding;
E. Plaintiffs' request that Defendant be ordered to destroy any documents obtained in
response to the subpoenas issued in violation of FRCP 45(a)(4) is GRANTED. It is
hereby ordered that Defendant shall destroy any such documents and shall file a
certificate of destruction with the Court within seven days of the entry of this order;
F. Plaintiffs' request for attorneys' fees and costs expended by Plaintiffs in litigating the
motion for sanctions is DENIED;
G. Plaintiffs' request for a punitive sanction ordered against Defendant's Counsel for
violation of Federal Rule of Civil Procedure 45(a)(4) and Pennsylvania Rule of
Professional Conduct 42 is DENIED; and
H. Plaintiffs' request that the Court issue a final warning to Defendant is DENIED.

BY THE COURT:

KIM R. GIBSON
UNITED STA TES DISTRICT JUDGE

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