United States District Court, E.D. Louisiana
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
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,
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.
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.
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.
Standard of Review
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).
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).
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.
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).
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 ...