Secretary of Labor, United States Department of Labor v. Valley Wide Plastering Construction Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Secretary of Labor, United States Department No. CV-18-04756-PHX-GMS of Labor, 10 ORDER Plaintiff, 11 v. 12 Valley Wide Plastering Construction 13 Incorporated, et al.,

14 Defendants.

16 17 Pending before the Court is Valley Wide Plastering Construction, Inc., Jesus 18 Guerrero, Rose Guerrero, and Jesse Guerrero, Jr.’s (“Defendants”) Motion to Quash 19 Subpoenas Issued for Personal Appearances at Evidentiary Hearing on March 29th 20 (Doc. 208). For the reasons below, the Motion is denied. 21 BACKGROUND 22 This case involves Defendants’ alleged violations of the Fair Labor Standards Act 23 (“FSLA”). After conducting two investigations into Defendants’ alleged violations in 2012 24 and 2017, the Secretary of Labor (“Plaintiff”) filed this action on December 18, 2018. 25 (Doc. 1.) Because Plaintiff believed Defendants to be in continuous violation of the FSLA, 26 Plaintiff moved for a preliminary injunction, which the Court granted on February 5, 2021. 27 (Doc. 123). Over a year later, Plaintiffs have alleged that Defendants remain out of 28 compliance with both the preliminary injunction and the FSLA. He has moved for civil 1 contempt sanctions, and that Motion remains pending with the Court. (Doc. 187.) An 2 evidentiary hearing is scheduled for Tuesday, March 29, 2022. (Doc. 190.) 3 In preparation for the hearing, Plaintiff has sought to serve subpoenas for in-person 4 appearances on two of Defendants’ employees. (Doc. 208.) Because these employees 5 reside in Tucson, Defendants now move to quash based on the geographical distance 6 between Phoenix and Tucson. 7 DISCUSSION 8 Federal Rule of Civil Procedure 45 states that a subpoena “may command a person 9 to attend a trial, hearing, or deposition only . . . within 100 miles of where the person 10 resides, is employed, or regularly transacts business in person.”1 Fed. R. Civ. P. 11 45(c)(1)(A). The moving party bears the burden of proof to show why Rule 45 applies. 12 Regents of Univ. of California v. Kohne, 166 F.R.D. 463, 465 (S.D. Cal. 1996). 13 Defendants argue that both Christian Hernandez and Maria Renteria reside more 14 than 100 miles from the Sandra Day O’Connor U.S. Courthouse.2 (Doc. 208.) But 15 Defendants have failed either to assert, or provide support for the proposition, that these 16 employees’ places of employment or locations where they regularly transact business are 17 also more than 100 miles from the courthouse. Residency is only one of three ways in 18 which a party may compel a person’s presence within the limits of Rule 45. Fed. R. Civ. 19 P. 45(c)(1)(A). Defendants’ employees work at many jobsites that arguably fall within the 20 100-mile limit; however, Defendants have failed to assert or provide evidence that Mr. 21 Hernandez or Ms. Renteria do not work at those sites. (Doc. 210-1 at 5–9.) Because 22 Defendants have failed to meet their burden as to both Mr. Hernandez and Ms. Renteria, 23 their Motion is denied. See Kohne, 166 F.R.D. at 465 (holding that subpoena could not be 24 quashed where moving party had only presented evidence of witness’s place of

25 1 The Rule carves out exceptions for parties, officers of parties, and trial witnesses. Fed. R. Civ. P. 45(c)(1)(B). Because the Court decides the Motion on other grounds, it will not 26 consider whether any exception applies.

27 2 Defendants’ only support for this proposition are their own records, which are alleged to be inaccurate in Plaintiff’s Motion for sanctions, and were actually inaccurate for these two 28 witnesses. (Doc. 210-2 at 2–3.) Plaintiff had to use a public records database to find current addresses. (Doc. 210-2 at 2–3.) 1 || employment but not of his residence or where he transacted business); Corrales v. Castillo, || No. 2:07-cv-00141-LRH-LRL, 2008 WL 11451256, at *2 (D. Nev. Feb. 12, 2008) (noting || movant had failed to show that “he does not regularly transact business in or near Las 4|| Vegas” because “[mJerely asserting that he conducts business from his office in Tijuana, 5 || Mexico does not satisfy this obligation”). 6 CONCLUSION 7 Because Defendants have failed to meet their burden of showing that either Ms. 8 || Renteria or Mr. Hernandez do not transact business or have a place of employment within 100 miles of the courthouse, their Motion is denied. 10 IT IS HEREBY ORDERED that Defendants’ Motion to Quash Subpoenas Issued for Personal Appearances at Evidentiary Hearing on March 29th (Doc. 208) is DENIED. 12 Dated this 28th day of March, 2022. ) 14 A Whacrsay Sooo) 15 Chief United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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