Ortiz v. Lucero Ag Services, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AZUCENA ORTIZ, et al., Case No. 1:23-cv-01319-JLT-EPG 12 Plaintiffs, ORDER PERMITTING SUPPLEMENTAL BRIEFING RE: MOTION FOR ORDER TO 13 v. SHOW CAUSE 14 LUCERO AG SERVICES, INC., et al., (ECF No. 29) 15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiffs Azucena Ortiz, Gustavo Meza, and Dominga Espinoza filed this putative class 19 action on September 5, 2023, mostly alleging violations of California state labor laws. (ECF No. 20 1). The complaint names five Defendants: (1) Lucero Ag Services, Inc.; (2) Paragroup Farms, 21 Inc.; (3) Ricardo Ulices Lucero-Ambrosio; (4) 559 Ag Corp., and (5) Artemio Fidel Salazar Luna. 22 Defendants Lucero Ag Services, Inc., Paragroup Farms, Inc., and Ricardo Ulices Lucero- 23 Ambrosio have answered the complaint (ECF Nos. 15, 17). However, Defendants 559 Ag. Corp. 24 and Defendant Artemio Fidel Salazar Luna (referred to collectively as Defendants unless 25 otherwise noted) failed to respond to the complaint after purportedly being served, and Plaintiffs 26 obtained a clerk’s entry of default against them on February 9, 2024, under Federal Rule of Civil 27 Procedure 55(a). (ECF No. 20). 28 Plaintiffs filed a motion on April 22, 2024, requesting (1) this Court issue an order for 1 Defendants to show cause why they should not be held in contempt for failing to respond to 2 subpoenas; (2) the Court to compel Defendants to produce the documents requested in the 3 subpoenas; and (3) the Court to award $1,345.00 in attorney fees and costs for the preparation of 4 the motion. Upon review of the motion, the Court will allow Plaintiffs to file supplemental briefing in 5 support of their motion addressing the issues discussed below. 6 II. ANALYSIS 7 A. Request for order to show cause and order to compel document production 8 According to the complaint, Defendant 559 Ag. Corp. is a California corporation that 9 provides employees in the agricultural industry and Defendant Artemio Fidel Salazar Luna is the 10 chief executive officer of the company and is also described as “an owner, director, officer, or 11 managing agent of Defendant 559 AG Corp.” (ECF No. 1, p. 7). Plaintiffs state that, on March 8, 12 2024, they served subpoenas—one on 559 Ag Corp. and one on Artemio Fidel Salazar Luna— 13 requesting the production of documents concerning (1) payroll; (2) timekeeping; (3) employee 14 files; (4) and wage statements. However, Defendants have failed to file any response, including to 15 Plaintiffs’ attempts to meet and confer about Defendants’ lack of response to the subpoenas. 16 Plaintiffs make the following request: 17 Based on 559 AG CORP, INC. and ARTEMIO FIDEL SALAZAR LUNA’S contempt of the subpoena and the circumstances outlined here, the Court should 18 order 559 AG CORP, INC. and ARTEMIO FIDEL SALAZAR LUNA to show 19 cause why they should not be held in contempt for failure to produce documents pursuant to the subpoenas. The Court should also order 559 AG CORP, INC. and 20 ARTEMIO FIDEL SALAZAR LUNA to produce documents requested . . . . 21 (ECF No. 29-1, p. 3). Before considering contempt proceedings and ordering Defendants to produce the 22 requested documents, the Court must establish that Defendants were properly served with the 23 subpoenas. 24 The Court finds the following standards for service of a subpoena applicable here: 25 Fed. R. Civ. P. 45(b)(1) provides that “[s]erving a subpoena requires delivering a 26 copy to the named person[.]” “The majority rule is that Rule 45 requires personal service.” RP Golden State Mgmt., LLC v. Ohio Sec. Ins. Co., No. 1:19-cv-00600- 27 DAD-JLT, 2020 WL 4748324, at *5 (E.D. Cal. Aug. 17, 2020) (collecting cases). 28 “However, a growing but still minority trend among courts has been to allow 1 substitute service of a Rule 45 subpoena via alternative methods, such as mail delivery pursuant to a court order.” Id. (collecting cases). “Courts are more 2 inclined to grant such alternative service where the serving party has provided sufficient evidence of its earlier diligence in attempting to effectuate personal 3 service.” Fujikura Ltd. v. Finisar Corp., No. 15-mc-80110-HRL (JSC), 2015 WL 4 5782351, at *5 (N.D. Cal. Oct. 5, 2015). Even where such earlier diligence is shown, a court will not grant alternative service unless the method is “reasonably 5 calculated to provide timely, fair notice and an opportunity to object or file a motion to quash.” Fujikura, 2015 WL 5782351, at *5. See also Chambers v. 6 Whirlpool Corp., No. SA CV 11-1733-FMO (JCGx), 2016 WL 9451361, at *2 7 (C.D. Cal. Aug. 12, 2016). Bryson v. W. Coast Life Ins. Co., No. 1:23-CV-00193-JLT-SKO, 2024 WL 689541, at *2 (E.D. 8 Cal. Feb. 20, 2024). 9 Here, Plaintiffs attached the proofs of service for each subpoena. (ECF No. 29-5, p. 3; 10 ECF No. 29-6, p. 3). Notably, the proofs of service for 559 Ag Corp. and on Artemio Fidel 11 Salazar Luna are nearly identical. Both were served by the same process server on March 8, 2024, 12 and the box for personal service is not checked. Rather, for 559 Ag Corp., the process server 13 checked a box stating: “I served the subpoena to Dulce Luna, who is designated by law to accept 14 service of process on behalf of 559 AG CORP on 3/8/2024.” (ECF No. 29-5, p. 3). Likewise, for 15 Artemio Fidel Salazar Lun, the process server checked a box stating: “I served the subpoena to 16 Dulce Luna, who is designated by law to accept service of process on behalf of ARTEMIO 17 FIDEL SALAZAR LUNA on 3/8/2024.” 18 In order to evaluate service, the Court requires information on Dulce Luna, including 19 whether the person is legally authorized to accept service or otherwise “designated by law to 20 accept service of process . . . .” 21 Additionally, the proof of service does not state how Dulca Luna was served, other than to 22 indicate it was not personal service. 23 Accordingly, Plaintiffs shall file a response explaining how service was proper, including 24 the identity of Dulce Luna and how the documents were served on Luna, as well as any argument or legal authority that such service was proper. 25 B. Request for attorney fees 26 Plaintiffs’ motion additionally requests $1,345.00 in attorney fees for the time spent 27 drafting and filing their motion. As grounds, Plaintiffs cite Federal Rule of Civil Procedure 28 1 45(d)(1), which provides as follows: 2 A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to 3 the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction--which may include lost earnings and 4 reasonable attorney’s fees--on a party or attorney who fails to comply. 5 Fed. R. Civ. P. 45(d)(1). 6 This Rule appears inapplicable here. It refers to avoiding undue burden on the person 7 subject to a subpoena—not for the person serving the subpoena. Here, Plaintiffs have not been 8 subpoenaed; rather, they are issuing the subpoenas. 9 Moreover, the Court finds it noteworthy that “[t]he only authority in the Federal Rules of 10 Civil Procedure for the imposition of sanctions against a nonparty for failure to comply with a subpoena duces tecum is Rule 45[].” Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 11 (9th Cir. 1983) (citing former iteration of contempt rule at Rule 45(f)). Rule 45(g) provides as 12 follows: “The court for the district where compliance is required--and also, after a motion is 13 transferred, the issuing court--may hold in contempt a person who, having been served, fails 14 without adequate excuse to obey the subpoena or an order related to it.”) Fed. R. Civ. P. 45(g). 15 However, the Ninth Circuit has noted that this Rule “does not independently provide for the 16 award of attorneys’ fees as a sanction.” Beverly v. Interior Elec. Inc. Nevada, No. 21-55645, 2023 17 WL 355692, at *2 (9th Cir. Jan. 23, 2023). 18 Additionally, Plaintiffs’ motion does not include support for why the fees requested are 19 reasonable. 20 Accordingly, the Court requests supplemental authority, if any, regarding Plaintiffs’ 21 requests for attorney fees to enforce the subpoena. 22 III. ORDER 23 For the reasons discussed above, IT IS ORDERED as follows: 24 1. By no later than May 28, 2024, Plaintiffs are permitted to file a supplemental brief 25 providing additional support for their motion and addressing the issues identified in this 26 order. (ECF No. 29). Alternatively, if after reviewing this order Plaintiffs conclude that 27 they need to take further steps before seeking their requested relief, they may file a notice 28 by no later than May 28, 2024, withdrawing their motion or withdrawing any requested 1 relief in the motion. 2 2. If Plaintiffs decline to file a supplemental brief by May 28, 2024, the Court will address 3 the motion on the current briefing. (ECF No. 29). 4 ; IT IS SO ORDERED. 6 | Dated: _May 7, 2024 [Jee ey □□ 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28