Cox v. German Kitchen Center LLC

Background

Mark Cox sued German Kitchen Center LLC, German Kitchen Center, New York, LLC, and Mayan Metzler for unpaid minimum and overtime wages under the Fair Labor Standards Act and New York Labor Law, and for breach of contract. The defendants asserted a breach-of-contract counterclaim.

The discovery dispute concerned a subpoena directed to Cox in his capacity as officer and principal of non-party Mark Cox Designs, Inc. The subpoena sought answers to specified interrogatories and responses to document requests that had originally been directed to Cox. The defendants argued that the information was relevant to their position that Cox performed services as an independent contractor through the company rather than as an employee. They specifically argued that tax returns, invoices, and payment information could bear on that issue.

The defendants also sought to require Cox to serve subpoenas and arrange depositions of Mayan Metzler and Nurit Metzler under Rules 45 and 30(b)(4) of the Federal Rules of Civil Procedure. They argued that both Metzlers were non-parties who lived more than 100 miles away and that depositions should occur remotely. They further sought sanctions against Cox and his attorney and a contempt order against Cox for failing to respond to the subpoena.

Cox argued that service of the subpoena was defective, that the requested information was outside the proper scope of discovery or had already been provided, and that tax returns were irrelevant to whether he was an employee or independent contractor. He also argued that the depositions had been properly noticed and that the defendants should be sanctioned for failing to attend them.

Court’s analysis

The court first noted deficiencies in both sides’ motion papers. The attorneys’ declarations did not comply with the federal statute governing unsworn declarations made under penalty of perjury, and the defendants had attached some exhibits to their memorandum without a supporting affidavit. Despite those defects, the court considered the materials because courts generally prefer resolving disputes on their merits.

The court rejected Cox’s challenge to subpoena notice. It found that the defendants had provided Cox’s attorney with notice and a copy of the subpoena before serving it, as required by Federal Rule of Civil Procedure 45(a)(4). The court also found that denying the motion based on defective service was not warranted.

The court found that the subpoena sought relevant and proportional information, including tax returns relevant to the defendants’ independent-contractor defense. Cox had not timely served written objections to the subpoena, and the court also found that his objections were unsupported. The court further found that the subpoena was improperly drafted because it attached discovery requests directed to Cox personally rather than requests tailored to Cox in his corporate-representative capacity. Nevertheless, because Cox did not challenge that defect and to avoid further expense, the court ordered him to respond to the subpoena in that capacity.

As to Mayan Metzler, the court found that he was a named defendant and that the defendants’ contrary assertions were frivolous. The court concluded that Cox had properly served notice of Metzler’s deposition under Rule 30, so it did not require Cox to subpoena Metzler under Rule 45. The court found that Nurit Metzler was not a named party and that the record contained no evidence about her role in the case. It therefore did not require Cox to subpoena or depose her under Rule 45.

The court also declined to order remote depositions. The record did not establish sufficient facts about Nurit Metzler, and Mayan Metzler’s general statements about travel hardship and COVID-19 health concerns were insufficient to justify a remote deposition. Instead, the court ordered that Mayan Metzler be deposed in person under the COVID-19 protocols in effect.

The court rejected the defendants’ sanctions and contempt requests. It explained that Rule 37 did not govern the defendants’ claimed failure to respond to the Rule 45 subpoena, and the defendants had not shown a sufficient legal basis for sanctions based on counsel’s refusal to accept service, refusal to arrange video depositions, failure to change deposition notices, or alleged failure to advise Cox. The court also found that sanctions against Cox for not attending to the subpoena were not warranted.

The court likewise denied Cox’s request for sanctions against the defendants. Although Mayan Metzler and Nurit Metzler apparently did not attend depositions noticed for March 17, 2020, the parties had attempted to resolve the dispute, and the depositions were scheduled shortly after the national COVID-19 emergency was declared. The court found sanctions unwarranted in those circumstances.

Disposition

The conclusion states that “the plaintiff’s motion to compel” was “granted in part and denied in part.” The court ordered Cox, by September 8, 2020, to respond to the subpoena in his capacity as officer and principal of Mark Cox Designs, Inc. It ordered Mayan Metzler to be deposed in person, under the applicable COVID-19 protocols, by September 15, 2020. The opinion did not impose contempt or sanctions and did not require subpoena-based or remote depositions of the Metzlers.