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Black v. Dmno, LLC

United States District Court, E.D. Louisiana

January 18, 2018


         SECTION: “E” (4)



         Before the Court is Defendants' Motion to Quash the Third-Party Subpoena Issued to Heartland Payment Systems, Inc. (R. Doc. 47). The motion is opposed. R. Doc. 56. The motion was submitted on November 29, 2017.

         I. Background

         The instant litigation is an FLSA collective action filed by the Plaintiffs. R. Doc. 1. The Plaintiffs allege that the Defendants, who are the owners and operators of Doris Metropolitan a restaurant in New Orleans, Louisiana, paid its servers $2.13 per hour and took tip credit from the customer tips to satisfy the required $2.75 minimum wage, however, it is also alleged that Defendants also appropriated a percentage of the servers' tips in order to subsidize managerial salaries. R. Doc. 1, p. 2. Plaintiffs allege that by appropriating the tips this way the Defendants lose the employer privilege of using tip credit to satisfy minimum wage. Id. In addition, the Plaintiffs contend that the Defendants refused to pay overtime to employees and failed to pay tipped employees minimum wage for the hours worked where there was no opportunity for tips. Id.

         On November 13, 2017, the Defendants filed the instant motion to quash a subpoena that was sent to a third-party in this case. R. Doc. 47. The Defendants argue that the subpoena should be quashed because the Plaintiffs did not notify the Defendants prior to serving the subpoena on the third-party and that the Plaintiffs seek the production of documents after the discovery deadline. R. Doc. 47-5, pp. 1, 2.

         The Plaintiffs oppose the motion. R. Doc. 56. They argue that the subpoena was sent by certified mail on November 7, 2017, the Defendants were timely notified on November 9, 2017, and that as of November 19, 2017, service has not been made and therefore there is no violation of the Federal Rules of Civil Procedure. R. Doc. 56, p. 2. Plaintiffs further argue that there was no possible way to serve the subpoena prior to the discovery deadline because the Defendants canceled the deposition of the individual who knew of the payroll company and only learned of the third-party's name from the rescheduled deposition on November 7, 2017, the same day the subpoena was sent. R. Doc. 56, Id. at p. 3. Finally, Plaintiffs state that a new scheduling order resetting the deadlines in this case will be issued because the District Court set a scheduling conference for November 30, 2017.

         II. Standard of Review

         Federal Rule of Civil Procedure 45(d)(3) governs the quashing or modifying of subpoenas. The 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.” Fed.R.Civ.P. 45(d)(3)(A)(i)-(iv). The Court may also modify or quash a subpoena that requires the disclosure of a trade secret or an unretained expert's opinion that does not describe specific occurrences in dispute and results from that expert's study that was not requested by a party. Fed.R.Civ.P. 45(d)(3)(B). Finally, Rule 45(d)(3) provides that the court which has the power to quash a subpoena is “the court for the district where compliance is required.” Fed.R.Civ.P. 45(d)(3)(A), (B).

         Subpoenas under Rule 45 may be served upon both party and non-parties. Petit v. Heebe, No. 15-3084, 2016 WL 1089351, at *2 (E.D. La. Mar. 21, 2016). However, in order to challenge the subpoena, the movant must: be in possession or control of the requested material; be the person to whom the subpoena is issued; or have a personal right or privilege in the subject matter of the subpoena. See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979); see also Johnson v. Mixon, No. 13-2629, 2014 WL 1764750, at *4 (E.D. La. May, 2, 2014).

         III. Analysis

         First, pursuant to Rule 45(d)(3), a subpoena can be quashed or modified by the court for the district where compliance with the subpoena is required. The subpoena in contention in the instant motion was issued by the United States District Court for the Eastern District Louisiana to Heartland Payment Systems, Inc. (“Heartland”). R. Doc. 47-1. Heartland is located 90 Nassau Street, Princeton, New Jersey 08542. The subpoena issued in this case commands Heartland to produce document to the Vazquez Law Office located at 400 Poydras Street, Suite 900, New Orleans, LA 70130. Id.

         The subpoena in this case is clearly commanding that Heartland produce the documents at an address in New Orleans. Because New Orleans, Louisiana is within the jurisdiction of the U.S. Court for the Eastern District of Louisiana this Court is the court of compliance under Rule 45(d)(3). See Fidelis Grp. Holdings, LLC v. Chalmers Automotive, LLC, No. 16-3258, 2016 WL 4547994 (E.D. La. Sept. 1, 2016); Semex Alliance v. Elite Dairy Genomics, LLC, No. 3:14-cv-87, 2014 WL 1576017, at *1 (S.D. Ohio Apr. 17, 2014).

         Second, because the Court has the authority to quash or modify the subpoena in question, the Court must next turn to whether the Defendants have standing to ...

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