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Nasufi v. King Cable, Inc.

United States District Court, N.D. Texas, Dallas Division

August 4, 2017

HAMDIJA (FRANK) NASUFI, individually and on behalf of others similarly situated, Plaintiff,
v.
KING CABLE, INC. and MANUEL GONZALEZ, Defendants.

          MEMORANDUM OPINION AND ORDER

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Non-Party DComm, Inc. has filed a Motion to Quash Amended Non-Party Subpoena to Produce Documents, see Dkt. No. 89-3 (the “Motion to Quash”), seeking an order under Federal Rule of Civil Procedure 45(d)(3) quashing an Amended Subpoena served on DComm by Plaintiff Hamdija (Frank) Nasufi.

         United States District Judge Jane J. Boyle has referred the Motion to Quash to the undersigned United States magistrate judge for hearing, if necessary, and determination under 28 U.S.C. § 636(b). See Dkt. No. 90.

         Nasufi filed a response, see Dkt. No. 92, and DComm filed a reply, see Dkt. No. 89-1; and the Court determines that oral argument is not necessary.

         For the reasons and to the extent explained below, the Court GRANTS in part and DENIES in part Non-Party DComm, Inc.'s Motion to Quash Amended Non-Party Subpoena to Produce Documents [Dkt. No. 89-3].

         Background

         The Amended Subpoena, issued under Federal Rule of Civil Procedure 45, requires compliance by Dcomm, Inc. to produce responsive documents, electronically-stored information, and other tangible things by June 5, 2017 at a law office in Austin, Texas. See Dkt. No. 89-3; Dkt. No. 92-1. The United States District Court for the Western District of Texas transferred the Motion to Quash, filed on June 2, 2017, to this Court under Federal Rule of Civil Procedure 45(f). See Dkt. No. 89.

         Nasufi explains that

[t]his is a collective action for overtime pay and minimum wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) filed in the U.S. District Court for the Northern District of Texas, Dallas Division, 3:15-CV-03273. Plaintiff is one of 96 class members who worked for Defendant King Cable as independent contractor and employee cable technicians. Defendant Manuel Gonzales is King Cable's President.
King Cable performed cable installation services for Time Warner Cable's customers. As a cable installation contractor, King Cable effectively needed four main things to operate: a contract with a cable provider like Time Warner, cable technicians to perform the work, trucks for the technicians to drive, and a warehouse/office.
In late 2016 and early 2017, King Cable ceased operating, Defendants' counsel withdrew, and Gonzales filed for bankruptcy (Dkts. 53 and 65). Consequently, Gonzales has an automatic stay. King Cable stopped responding to communications from the Court and Plaintiff.
DComm, Inc. - like King Cable - is a Time Warner Cable contractor. Since King Cable's closing and Gonzales's bankruptcy filing, it appears that DComm may be operating as King Cable's “successor”:
• Gonzalez - King Cable's President - accepted employment and is working with DComm as an independent contractor “Regional Mgr.”;
• An entity held by DComm's President and with the same address as Dcomm purchased King Cable's leased warehouse/offices located on Grisham Drive in Rowlett, TX;
• DComm purchased the work trucks previously leased by King Cable; and
• DComm, upon information and belief, hired King Cable's former cable technicians as independent contractor cable technicians.
On April 26, 2017 - before the expiration of the discovery cutoff deadline in the underlying action - Plaintiff served specific, time-limited, narrowly-tailored document requests on DComm's Dallas office. Plaintiff subsequently withdrew that subpoena and served an amended subpoena on DComm's Austin office on May 22, 2017 (“Subpoena”) - again, before the discovery cutoff date.
Plaintiff served the Subpoena to discover whether DComm may be considered King Cable's “successor” under the FLSA. The Fifth Circuit Court of Appeals has assumed, without deciding, that the federal successorship doctrine applies to FLSA actions. Powe v. May, 62 Fed.Appx. 557 (5th Cir. 2003). Black's Law Dictionary does not determine “successor” status here. Under Powe, “[t]here are three main criteria for imposing successor liability: (1) a substantial continuity of business operations from the previous entity to its successor; (2) notice ...

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