Jung v. 24 Hour Fitness USA, Inc.
Filing
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MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Defendant's Motion to Quash Trial Subpoena is hereby GRANTED (Dkt. 58 ). Signed by District Judge Amos L. Mazzant, III on 2/12/2019. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
SUSAN JUNG
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v.
24 HOUR FITNESS USA, INC.
Civil Action No. 4:17-CV-787
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant 24 Hour Fitness USA, Inc.’s Motion to Quash
Trial Subpoena (Dkt. #58). Having considered the motion and the relevant pleadings, the Court
finds Defendant’s motion should be granted.
BACKGROUND
On December 27, 2017, the parties filed their Rule 26(f) report (Dkt. #14). In the Rule
26(f) Report, Plaintiff Susan Jung stated she intended to depose, “[a] Corporate representative of
24 Hour Fitness on standard policies and procedures and on training of employees on those
policies and procedures.” (Dkt. #14 at p. 4). On December 7, 2018, the parties filed their
proposed pretrial order (Dkt. #44). In the proposed pretrial order, Plaintiff listed “Corporate
Representative of 24 Hour Fitness USA, Inc.” as a witness on Plaintiff’s witness list (Dkt. #441). On December 21, 2018, Defendant filed an objection to the corporate representative listed on
Plaintiff’s witness list (Dkt. #52). Defendant noted that Plaintiff did not take any Federal Rule of
Civil Procedure 30(b)(6) depositions and objected to Plaintiff listing an unnamed individual as a
trial witness (Dkt. #52). On January 4, 2019, the Court held the Final Pretrial Conference in this
case and entered the parties’ Joint Pretrial Order (Dkt. #57; Dkt. #58). The trial for this case is
set for March 11, 2019 (Dkt. #55).
On January 22, 2019, Plaintiff served a Subpoena to Appear and Testify at a Hearing or
Trial on Chris Roussos—Defendant’s former Chief Executive Officer (“CEO”) (Dkt. #58 at
p. 1; Dkt. #58-1). Plaintiff intends Roussos to be the “corporate representative” mentioned in the
Rule 26(f) Report and Plaintiff’s witness list. Additionally, the subpoena instructs Roussos to
bring to trial “[a]ll documents reflecting the financial worth of 24 Hour Fitness USA, Inc.
including balance sheets, income and expense statements from 2016 to the present, and tax
returns for the years 2016 and 2017.” (Dkt. #58-1). Defendant filed a motion to quash the
subpoena on February 2, 2019 (Dkt. #58). Plaintiff filed a response to the motion on February 6,
2019 (Dkt. #59).
LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(1) describes a party’s initial disclosure
requirements and states that a party must provide to the other parties, without awaiting a
discovery request, “the name and, if known, the address and telephone number of each individual
likely to have discoverable information—along with the subjects of that information—that the
disclosing party may use to support its claims or defenses, unless the use would be solely for
impeachment.” FED. R. CIV. P. 26(a)(1)(A)(i). The initial disclosure must be supplemented later
in the proceedings if the party learns that the disclosure made “is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” FED. R. CIV. P. 26(e)(1)(A). Federal Rule of Civil
Procedure 37 states that if a party does not provide information or disclose a witness as required
by Rule 26(a) and (e), the party may not use that information or witness to supply evidence at
trial, “unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1).
District courts consider four facts in determining whether to allow a late-designated witness to
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testify: “(1) the explanation for the failure to identify the witness; (2) the importance of the
testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a
continuance to cure such prejudice.” Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir.
2007).
Federal Rule of Civil Procedure 45 provides that a court must “quash or modify a
subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply
beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or
other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue
burden.” “‘Whether a burdensome subpoena is reasonable ‘must be determined according to the
facts of the case,’ such as the party’s need for the documents and the nature and importance of
the litigation.’” Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (quoting
Linder v. Dep’t of Def., 133 F.3d 17, 24 (D.C. Cir. 1998)). “To determine whether the subpoena
presents an undue burden, we consider the following factors: (1) relevance of the information
requested; (2) the need of the party for the documents; (3) the breadth of the document request;
(4) the time period covered by the request; (5) the particularity with which the party describes the
requested documents; and (6) the burden imposed.” Id. (citing Williams v. City of Dall., 178
F.R.D. 103, 109 (N.D. Tex. 1998)).
ANALYSIS
Defendant contends Plaintiff’s subpoena of Roussos should be quashed for four reasons:
(1) Roussos is not listed on Plaintiff’s witness list; (2) Plaintiff did not identify Roussos as a
potential witness in her disclosures; (3) the subpoena poses an undue burden; and (4) the
document-production portion of the subpoena is improper.
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I. Late-Designation of Witness
Plaintiff responds to Defendant’s first two arguments stating that she did not fail to timely
designate Roussos as a witness. Plaintiff explains:
Defendant listed unnamed “corporate representatives” as persons
with knowledge who might be called to testify. Likewise, Plaintiff
has always listed a “corporate representative” from 24 Hour
Fitness as a witness to testify. Defense counsel listed its own
address as the address for corporate representatives of 24 Hour
Fitness as shown by Exhibit A, attached hereto. When defense
counsel stated to plaintiff’s counsel that “no officers and directors
of 24 Hour Fitness were subject to the subpoena power of the
court,” Plaintiff searched and found an officer and director who
was within the geographic limits of the Court’s subpoena power.
Christopher Roussos was that person, and he was the CEO of 24
Hour Fitness at the time of the incident complained of in Plaintiff’s
Original Petition.
Plaintiff’s counsel shared the name of Mr. Roussos at the Final
pre-trial hearing before the Court.
(Dkt. 59 at p. 1).1
Plaintiff cannot designate Roussos as Defendant’s corporate representative. Federal Rule
of Civil Procedure 36(b)(6) enables parties to depose organizations. When the party describes
with reasonable particularity the matters to be examined in the deposition, the organization then
designates a corporate representative to testify on the topics. See FED. R. CIV. P. 30(b)(6). As
stated previously, Plaintiff intended to depose “[a] Corporate representative of 24 Hour Fitness
on standard policies and procedures and on training of employees on those policies and
procedures.” (Dkt. #14 at p. 4).2 However, Plaintiff did not take a Rule 30(b)(6) deposition in
1. The Court reminds Plaintiff of Local Rule CV-10(5) requiring filings to be double spaced.
2. Plaintiff intends for Roussos to testify on and bring documents relating to Defendant’s net worth (Dkt. #59 at
p. 2). However, Plaintiff stated in the initial disclosures she would depose a corporate representative only on
Defendant’s policies and procedures and the training of employees, not on Defendant’s net worth (Dkt. #14 at p. 4).
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this lawsuit and, therefore, Defendant did not designate a corporate representative to testify on
the topics (Dkt. #52). See FED. R. CIV. P. 30(b)(6). Plaintiff cannot now simply subpoena
Defendant’s former CEO and designate him as Defendant’s “corporate representative.”
Accordingly, the Court finds that Roussos is a late-designated witness even though Plaintiff
listed “corporate representative” in the initial disclosures and on Plaintiff’s witness list.
District courts consider four factors in determining whether to allow a late-designated
witness to testify: “(1) the explanation for the failure to identify the witness; (2) the importance
of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a
continuance to cure such prejudice.” Betzel, 480 F.3d at 707.
First, Plaintiff does not explain why she did not seek to depose a corporate representative,
or why she failed to designate Roussos earlier in the lawsuit. Therefore, this factor weighs
against forcing Roussos to appear and testify.
Second, Plaintiff seeks to have Roussos testify on Defendant’s net worth (Dkt. #59 at
p. 2). Further, if Roussos acts as the corporate representative referred to by Plaintiff, Plaintiff
will expect Roussos to testify on Defendant’s policies and procedures, and training Defendant’s
employees on these policies and procedures (Dkt. #14 at p. 4). Roussos is no longer the CEO of
Defendant, and serves only as an employee in an advisory role for Defendant (Dkt. #58-2 ¶ 2).
Roussos’s role as an advisory employee ends March 1, 2019 (Dkt. #58-2 ¶ 2). Therefore, at the
time of trial, Roussos will no longer be an employee of Defendant (Dkt. #55). Additionally,
Roussos states that while he did review company financial data in his role as CEO, he does not
have personal knowledge of Defendant’s net worth, and no longer has access to any company
email or financial information in his advisory role (Dkt. #58-2 ¶ 5). Finally, Roussos explains he
Plaintiff attempts to fit a square peg into a round hole by claiming Roussos is the previously mentioned “corporate
representative” identified by Plaintiff.
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does not know the policies and procedures relating to lockers in locker rooms—the relevant
policies and procedures to this lawsuit (Dkt. #58-2 ¶ 4). As a result, even if Roussos testified on
all the topics identified by Plaintiff, it is unlikely that he could provide relevant, or essential,
testimony.
Third, there is prejudice in allowing Roussos to testify. Plaintiff seeks to identify Roussos
after the Final Pretrial Conference, discovery deadline, and only one month before the trial.
Defendant states that had Plaintiff identified Roussos earlier Defendant would have filed
additional objections and motions in limine concerning Roussos’s testimony (Dkt. #58 at p. 2).3
Further, Mr. Roussos has a personal commitment that he will miss if he testifies at trial
(Dkt. #58-2 ¶ 7). Consequently, there is prejudice to forcing Roussos to comply with Plaintiff’s
subpoena and testify at trial.
Fourth, a continuance is not available to cure the prejudice. The trial is set for March 11,
2019 (Dkt. #55).
The Court’s trial docket is filled through June 2019.
Therefore, any
continuance will cause a substantial delay in the resolution of this case.
When considering the factors outlined above, the Court finds that Roussos should not be
required to testify as a late-designated witness. See Betzel, 480 F.3d at 707.
II. Quashing the Subpoena
Notwithstanding the analysis above, the Court finds the subpoena should be quashed.
Rule 45 provides that a court must “quash or modify a subpoena that: (i) fails to allow a
reasonable time to comply; (ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.” “To determine whether
3. The Court finds Defendant’s statement credible as Defendant previously objected to Plaintiff listing an unnamed
“corporate representative” as a trial witness (Dkt. #52).
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the subpoena presents an undue burden, [the Court] consider[s] the following factors: (1)
relevance of the information requested; (2) the need of the party for the documents; (3) the
breadth of the document request; (4) the time period covered by the request; (5) the particularity
with which the party describes the requested documents; and (6) the burden imposed.” Wiwa,
392 F.3d at 818 (citing Williams, 178 F.R.D. at 109).
The subpoena at issue imposes an undue burden. The Court already determined Roussos
will likely not provide significant, relevant testimony and that causing him to appear imposes a
burden on Roussos and the parties. Considering the other factors, the subpoena calls for Roussos
to testify at trial and bring, “[a]ll documents reflecting the financial worth of 24 Hour Fitness
USA, Inc. including balance sheets, income and expense statements from 2016 to the present,
and tax returns for the years 2016 and 2017.” (Dkt. #58-1). Although Roussos does not have
access to these documents anymore, the breadth of the request is large and the period is
substantial—requesting “all documents” concerning a large corporation’s net worth for a period
of three years.4
Considering the factors together, the Court finds the subpoena should be
quashed as it imposes an undue burden.
4. The Court does not take issue with the particularity with which Plaintiff describes the requested documents.
However, every other factor identified weighs in favor of quashing the subpoena.
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CONCLUSION
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It is therefore ORDERED that Defendant’s Motion to Quash Trial Subpoena is hereby
GRANTED (Dkt. #58).
IT IS SO ORDERED.
SIGNED this 12th day of February, 2019.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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