Taylor v. C6 Disposal Systems, Inc.

Western District of Texas, txwd-5:2019-cv-00347

Response in Opposition to Motion, filed by C6 DISPOSAL SYSTEMS, INC., re {{14}} Opposed MOTION to Quash Defendant's Subpoena Duces TecumOpposed MOTION for Protective Order filed by Plaintiff Charles Taylor

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf of all § others similarly situated § § PLAINTIFF, § § v. § CIV. ACTION NO. 5:19-CV-00347-ESC § C6 DISPOSAL SYSTEMS, INC., § DEFENDANT. § § DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER TO THE HONORABLE U.S. MAGISTRATE JUDGE ELIZABETH S. CHESTNEY: NOW COMES Defendant C-6 Disposal Systems, Inc. ("C6") and respectfully files its Response to Plaintiff Charles Taylor's ("Taylor's") Opposed Motion to Quash Subpoena Duces Tecum and Motion for Protective Order, and would respectfully show the Court as follows: BACKGROUND On May 2, 2019, C6 filed its Original Answer and Counterclaim (Doc. 5) in this matter. In its Counterclaim, C6 claims that Taylor "knowingly, intentionally, recklessly and maliciously falsified his C6 timesheets and misrepresented to C6 that he was taking his required lunch break – all while suing his former employer for allegedly forcing him to work through his lunch break – in a blatant attempt to later file a lawsuit against C6 falsely claiming that he was forced to work through his lunch breaks." See, Doc. 5 at ¶ 97. C6 further claims that Taylor "failed to disclose that he was allegedly not taking his lunch break and that he was falsifying his C6 time sheets when he had a duty to disclose those 1 facts to C6 due to his prior representations that he was in fact taking his lunch breaks." See, Doc. 5 at ¶ 98. See also, generally, Doc. 5 at ¶ 89-99. Taylor failed to file any answer to this counterclaim, and the 20-day deadline for him to do so has passed. See, Fed. R.Civ.P. 12(a)(2). C6 has therefore filed a Motion for Entry of Default contemporaneously with this Response. In an attempt to prove its counterclaim, C6 served a Subpoena Duces Tecum ("the Subpoena") on Taylor's current employer ACT Disposal, LLC which sought records that would show whether Taylor was also lying to his current employer regarding the taking of lunch breaks. This evidence is sought to prove the intent element of C6's fraud claim. Taylor filed his Opposed Motion to Quash Subpoena Duces Tecum and Motion for Protective Order on June 13, 2019 (Doc. 14), claiming that the Subpoena sought information that was not relevant to the instant lawsuit and that the Subpoena constitutes an attempt to harass Taylor and retaliate against him. ARGUMENT AND AUTHORITIES A. Evidence Sought Via the Subpoena is Discoverable to Prove Taylor's Fraudulent Intent In Lying to C6 About his Lunch Breaks Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Fed R. Civ. P. 26(b)(1). "(T)he determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action." Fed. Rule Civ. P. 26(b)(1) Advisory Committee's Note, 2000 amendments. Under Fed.R.Civ.P. 26(b)(1) the court must focus on the claims and defenses involved in the action. Id. "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). 2 "In Texas, fraud occurs when: (1) the defendant misrepresented a material fact; (2) the defendant knew the material representation was false or made it recklessly without any knowledge of its truth; (3) the defendant made the false material representation with the intent that it should be acted upon by the plaintiff; and (4) the plaintiff justifiably relied on the representation and thereby suffered injury. The first requirement of this test can be met if the defendant concealed or failed to disclose a material fact when a duty to disclose existed." United Teacher Associates Ins. Co. v. Union Labor Life Ins. Co., 414 F.3d 558, 566 (5th Cir. 2005)(internal citations omitted). "Courts in Texas have consistently held that fraud by nondisclosure or concealment requires proof of all of the elements of fraud by affirmative misrepresentation, including fraudulent intent." Id. at 567. "While a party's intent is determined at the time the party made the representation, it may be inferred from the party's subsequent acts after the representation is made." Shandong Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1033– 34 (5th Cir.2010). "'Intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be given to their testimony. Since intent to defraud is not susceptible to direct proof, it invariably must be proven by circumstantial evidence.'" In re Arnette, 454 B.R. 663, 683 (Bankr. N.D. Tex. 2011)(citing Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434–35 (Tex.1986)). Thus, the documents sought by C6 via the Subpoena are reasonably calculated to lead to the discovery of admissible evidence regarding Taylor's subsequent acts with respect to his current employer as they tend to prove his intent to defraud C6 via misrepresentations and failures to disclose regarding his lunch breaks. Taylor repeatedly acknowledged in writing that he would take and was taking the 30-minute lunch breaks 3 as required by C6 company policy, but now alleges that he has not taking such lunch breaks in this suit seeking unpaid overtime compensation. Taylor made these misrepresentations and failures to disclose while he was contemporaneously pursuing a nearly identical case against his former employer Republic Services, Inc. via the same counsel that represent him in the current case. See, Charles Taylor v. Republic Services, Inc., Civil Action No. 2:16-cv-00502, in the Southern District of Texas, Corpus Christi Division. To the extent that Taylor is engaging in the same pattern of conduct with respect to his his current employer, such a fact would be highly probative to show his intent to defraud C6. As such, the evidence sought via the Subpoena is discoverable and Plaintiff's Motion to Quash should be denied. B. Taylor Is Not Entitled to a Protective Order As He Has Failed to Establish That the Subpoena is Harassing, Abusive, or Otherwise Improper Once the party seeking discovery has shown that the requested information is s within the scope of permissible discovery, the burden then shifts to the party resisting discovery to show why discovery should not be permitted. McLeod, Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.1990) (holding that party opposing discovery must "show specifically how ... each [request] is not relevant or how each [request] is overly broad, burdensome or oppressive."). Taylor's claims that the Subpoena is being used by C6 as a "tactical weapon" for purposes of harassment and speculates that Taylor's relationship with his current employer would somehow be harmed if his employer is required to provide the limited category of documents sought via the Subpoena. But Taylor provides no evidence to support these conclusory allegations, and thus does not establish good cause for 4 issuance of a protective order. See, United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir.1978)(Rule 26(c)'s requirement of a showing of good cause to support the issuance of a protective order indicates that "[t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.") Taylor complains that C6 has made no effort to obtain the information sought through alternative methods but does not identify which alternative methods are available to obtain company policies and employment records from ACT Disposal, LLC. Given the fact that Taylor has not even answered C6's counterclaim and argues that any records pertaining to his current employment would be completely irrelevant to this suit, his claim that the information sought could be obtained through less intrusive means rings hollow. The cases cited by Taylor are inapposite. In one case, the plaintiff admitted the documents requested from her current employer were relevant and voluntarily produced the requested information and documents to the defendant without the necessity of a subpoena. Richardson v. BBB Group, Inc., 3:14-CV-1014-M, 2014 WL 1724761, at *1 (N.D. Tex. Apr. 30, 2014). Here, Taylor has not voluntarily produced the requested information and documents and has not offered to do so. In another case, the court simply decided whether recordings of the parties were work product or otherwise not discoverable and never addressed whether of discovery from a party's present employer is allowable. See, Bahrami v. Maxie Price Chevrolet– Oldsmobile Inc., No. 1:11–CV–4483–SCJ–AJB, 2013 WL 3800336, at *4 (N.D. Ga. June 19, 2013). In a third case, the court acknowledged that discovery directed to a party's current employer could be problematic but ultimately declined to issue a protective order 5 based on any possible problems and ultimately allowed the other party to seek a narrowed set of records from the party's current employer. See, Richards v. Convergys Corp., No. 2:05-CV-00790DAK, 2007 WL 474012, at *3 (D. Utah Feb. 7, 2007). In yet another case, the bankruptcy judge did not consider whether a subpoena to a party's current employer was improper and instead held that overbroad requests for production made directly to a debtor in an adversary proceeding were sanctionable because "no reasonable basis for any document requested was provided." In re Weinberg, 163 B.R. 681, 685 (Bankr. E.D.N.Y.1994). And in another case, the court found that the defendant's requests for documents to an employment discrimination plaintiff's subsequent employers were not calculated to lead to admissible evidence and only in dicta did the court find that, even if such requested documents were relevant, controlling 2nd Circuit precedent (which is not applicable to this case) would require the defendant to show that the subpoena was used as a "last resort" for obtaining the discovery. See, Conrod v. Bank of New York, No. 97 CIV. 6347 (RPP), 1998 WL 430546, at *2 (S.D.N.Y. July 30, 1998). Because Taylor has not made a factual or legal showing that the C6's request for documents from his current employer would be harassing, an invasion of privacy, or abusive or would disrupt his relationship with his current employer, his Motion for Protective Order should be denied. C. Anti-Retaliation Provisions of the Fair Labor Standards Act Do Not Apply to C6's Proper Use of a Subpoena to Prove Its Counterclaim Against a Former Employee Taylor claims that C6 has violated the anti-retaliation provisions of the Fair Labor Standards Act ("FLSA"). But by its very terms, this provision prohibits an employer from 6 discharging or in any other manner discriminating against "any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter." 29 U.S.C. § 215(a)(3)(emphasis added)." See, 29 U.S.C. § 215(a)(3). As Taylor is admittedly not an "employee" of C6 and left his employment with C6 of his own volition, this provision does not apply to him. Taylor cites no precedent whatsoever to support his claim that the FLSA anti- retaliation provisions apply to prevent a party's proper use of a subpoena to develop evidence in support of its counterclaim against a former employer. This is because no such precedent exists. Instead, courts around the country evaluate an FLSA anti- retaliation case under the McDonnell Douglas burden shifting analysis adopted by the U.S. Supreme Court for Title VII employment discrimination cases. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). And by their nature, these cases require that an adverse employment decision be made within the context of an existing employer-employee relationship. See, e.g. Boyer v. Pilot Travel Centers, LLC, SA-05-CA-0978 FB(NN), 2007 WL 26804, at *1 (W.D. Tex. Jan. 3, 2007), report and recommendation adopted, CIV.A.SA05CA978FB, 2007 WL 708599 (W.D. Tex. Mar. 7, 2007). Nor does this Court's broad power to control class action litigation somehow prevent C6 from issuing a subpoena to a named plaintiff's current employer to obtain evidence to support an individual, state law counterclaim against that named plaintiff. Nothing about the Subpoena interferes with the policies of Rule 23 or inhibits participation in this purported collective action and/or class action litigation. Rather, the Subpoena is narrowly drafted to only seek records pertaining to C6's counterclaim against Taylor. 7 CONCLUSION The documents sought via the Subpoena are relevant to C6's counterclaim. Taylor has failed to show that the Subpoena is harassing, an invasion of privacy, or abusive or would disrupt his relationship with his current employer. C6 seeks only to prove its counterclaim, and such conduct in the context of this litigation does not implicate the FLSA's anti-retaliation provisions nor does it undermine the purposes of class action suits. The Court should therefore deny Plaintiff's Opposed Motion to Quash Subpoena Duces Tecum and Motion for Protective Order in its entirety. Prayer for Relief WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff's Opposed Motion to Quash Subpoena Duces Tecum and Motion for Protective Order be denied and for such other relief, in law or in equity, to which Defendant may be entitled. Respectfully submitted, Riley & Riley Attorneys at Law By: /s/ Charles Riley Charles Riley Texas Bar No. 24039138 320 Lexington Ave. San Antonio, Texas 78215-1913 Tel. (210) 225-7236 Fax. (210) 227-7907 Attorney for Defendant/Counter-Plaintiff C6 Disposal Systems, Inc. 8 CERTIFICATE OF SERVICE I certify that on the 26th day of June, 2019 a true and correct copy of the above and foregoing was served on the following in the manner indicated: Clif Alexander Via CM/ECF clif@a2xlaw.com Lauren E. Braddy lauren@a2xlaw.com ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 Attorneys for Plaintiff /s/ Charles Riley CHARLES RILEY 9