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Lureen v. Doctor's Associates, Inc.

United States District Court, D. South Dakota, Southern Division

September 20, 2017

KERRI LUREEN, as Guardian Ad Litem of S.L., a Minor, Plaintiff,
v.
DOCTOR'S ASSOCIATES, INC.; SUBWAY IP, INC.; FRANCHISE WORLD HEADQUARTERS, LLC.; METRO INITIATIVES, LLC, all d/b/a “Subway;” CHRISTOPHER JOHN HOLL, in his personal capacity and as owner; and JOHN CLARK, in his personal capacity and as owner; Defendants and Third-Party Plaintiffs,
v.
KILEY RAMSTORF, Third-Party Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO QUASH DOCKET NO. 85 AND DENYING DEFENDANTS' MOTION TO FILE A SURREPLY DOCKET NO. 96

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         This matter is before the court on plaintiff Kerri Lureen's amended complaint alleging sex discrimination, hostile work environment, constructive discharge, negligence, and assault and battery. See Docket No. 56. Jurisdiction is founded on the presence of a federal question, diversity of citizenship of the parties, and the court's supplemental jurisdiction. See 28 U.S.C. §§ 1331, 1332, and 1367. Plaintiff has filed a motion to quash a subpoena duces tecum issued by defendants to a non-party. See Docket No. 85. Defendants resist the motion and seek permission to file a surreply. See Docket Nos. 92 & 96. The Honorable Lawrence L. Piersol, United States District Court Judge, referred plaintiff's motion to this magistrate judge for decision pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 89.

         FACTS

         A. Background and Parties

         Plaintiff is the mother and guardian of S.L., a minor. S.L. worked for a Subway restaurant on East Arrow Avenue NE in Watertown, South Dakota, for approximately 9 months, from August, 2015, to March 16, 2016. S.L. was 15 years old at the time she went to work for Subway. S.L.'s claims center around sexual contact perpetrated by her direct manager at Subway, Kiley Ramstorf, a man 14 years older than she. The Watertown Subway was owned at the time by Metro Initiatives, LLC ("Metro"), a business entity owned by defendants Christopher John Holl and John Clark, together with Ramstorf. Metro owned five separate Subway restaurants. Neither party has informed the court of the locations of these restaurants or the dates during which Metro owned the restaurants.

         After the sexual contact between S.L. and Ramstorf came to light, Ramstorf was charged criminally, convicted, and sentenced to two years' imprisonment for the crime of sexual exploitation of a minor. Ramstorf had been investigated in 2013 and 2014 for suspected sexual contact with minors, apparently without any criminal charges ever being asserted.

         Plaintiff alleges that defendants Doctor's Associates, Inc. ("DIA"); Franchise World Headquarters, LLC ("FWH"); and Subway IP (plaintiff collectively characterizes these parties as "Subway"), provided franchise training and ongoing managerial training of Ramstorf both online, regionally, and at its corporate office in Connecticut. Plaintiff alleges these defendants had substantial control over day-to-day activities of its franchisees, and specifically, over Metro. Plaintiff asserts that the Subway defendants and Metro should be considered a single employer, joint employers, or as principal and agent.

         Plaintiff alleges that defendants Holl, Clark, and Metro had prior knowledge of at least one of Ramstorf's prior criminal investigations for sexual contact with minors. Plaintiff alleges all defendants had been made aware of multiple complaints about Ramstorf's inappropriate behavior toward female employees at the Subway store where S.L. worked and that these complaints were brought to defendants' attention prior to the time Ramstorf victimized S.L. Despite this foreknowledge, plaintiff asserts none of the defendants took any appropriate action to address Ramstorf's behavior toward female employees.

         B. Subject of the Motion to Quash

         Previously, defendants had served plaintiff with discovery requests seeking information about both plaintiff's and S.L.'s cellular telephone service. Plaintiff refused to produce the requested information aside from telling defendants, over objection, what S.L.'s phone number was and the identity of her cell phone service provider. Discussions ensued in which the parties debated the relevance and scope of the discovery requests. Defendants indicated plaintiff had promised to produce certain information and then did not follow through. Defendants then served S.L. and plaintiff's cell phone service provider with a subpoena duces tecum. See Docket No. 87-2.

         The subpoena, served on TracFone Wireless, Inc., d/b/a Straight Talk (hereinafter "TracFone"), directed TracFone to produce two categories of documents with regard to both S.L.'s and plaintiff's cell phones:

1. Documents or records within [TracFone's] possession and control, showing all subscriber information, including: the date, time, originating and receiving phone numbers, and duration for all incoming and outgoing calls from May 2015 to the present.
2. Documents or records within [TracFone's] possession and control, showing all subscriber information, including: the date, time, and originating and receiving phone numbers for all incoming and outgoing text messages from May 2015 to the present.

See Docket No. 87-2 at p. 4 (emphasis added).

         As can be seen, the subpoena does not seek content of any phone calls or text messages. Instead, it seeks a log of all phone calls made and received (including duration), and all text messages sent and received, for the stated time period. The subpoena also seeks subscriber information for both telephone numbers.

         Plaintiff objects to the subpoena and seeks the court's order quashing it. See Docket No. 85. Plaintiff argues the information is not relevant and that the time frame is unduly broad. Further, plaintiff argues that the information sought is confidential.

         DISCUSSION

         A. Provisions of Rule 45

         Rule 45 of the Federal Rules of Civil Procedure allows a party to serve a subpoena for the production of documents on a nonparty, with notice to the other parties in the litigation. See Fed.R.Civ.P. 45(a). The nonparty on whom the subpoena is served ...


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