United States District Court, N.D. Texas, Dallas Division
HAMDIJA (FRANK) NASUFI, individually and on behalf of others similarly situated, Plaintiff,
KING CABLE, INC. and MANUEL GONZALEZ, Defendants.
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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].
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.
[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 ...