Berry v. National Labor Relations Board, No. 2:2015cv06490 - Document 15 (E.D. La. 2015)
Court Description: ORDER AND REASONS denying 14 Motion to Quash Administrative Subpoena. Signed by Judge Susie Morgan. (bwn)
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Berry v. National Labor Relations Board Doc. 15 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MILTON BERRY, Plain tiff CIVIL ACTION VERSU S N O. 15 -6 4 9 0 N ATION AL LABOR RELATION S BOARD , D e fe n d an t SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a Motion to Quash Adm inistrative Subpoena filed by Plaintiff Milton Berry (“Berry”). 1 Defendant, the National Labor Relations Board, opposes the m otion. 2 The Court has considered these briefs, the record, and the applicable law, an d now issues its ruling. For the reasons that follow, the m otion is D EN IED . BACKGROU N D On August 26, 20 10 , the National Labor Relations Board (the “Board”) issued a Decision and Order, finding that M&B Services, Inc. (“M&B”), engaged in certain unfair labor practices and, thus, had violated the National Labor Relations Act. 3 The Board ordered M&B Services, Inc., to, inter alia, m ake its em ployees whole by paying them contractually required wage increases retroactive to Septem ber 1, 20 0 8. 4 The United States Court of Appeals for the Fifth Circuit then entered a J udgm ent and Mandate on Decem ber 13, 20 10 , enforcing the Board’s Decision and Order and requiring M&B Services, Inc., and “its officers, agents, successors, and assigns” to com ply. 5 1 R. Doc. 14. The m otion was originally filed at Record Docum ent 3 but was m arked deficient. See R. Doc. 4. Plaintiff corrected the deficiencies and refiled the m otion, which is on the record at Record Docum ent 14. 2 R. Doc. 9. 3 R. Doc. 10 -2 at 1– 2. The Board’s August 26th Decision and Order adopted and incorporated by reference its earlier May 29, 20 0 9 Order (R. Doc. 10 -3). 4 R. Doc. 10 -2; R. Doc. 10 -3 at 3– 4. 5 See generally R. Doc. 10 -1. 1 Dockets.Justia.com Thereafter, because M&B allegedly failed to com ply with the Fifth Circuit’s J udgm ent and Mandate, the Board issued a Com pliance Specification pursuant to Sections 10 2.54 and 10 2.55 of the Board’s Rules and Regulations. 6 The Com plian ce Specification noted that “controversies exist over whether M&B, Berry Services, In c. (Berry I), Berry Transportation, LLC, and Berry Services, Inc. (Berry II) [collectively, the Com panies], are a sin gle em ployer and join tly liable” and whether Milton Berry an d Carolyn Berry—the sole owners and officers of the Com panies—are personally liable. 7 The Com pliance Specification thus added the Com panies as additional corporate respon dents who are jointly liable to fulfill the rem edial obligations of the Board’s Decision and Order. 8 The Com pliance Specification also alleged that Milton and Carolyn Berry are person ally, jointly, and severally liable to fulfill those rem edial obligations, based on their failure “to adhere to corporate form alities in the m anagem ent and direction of the Com panies.”9 The Com pliance Specification advised the Com panies, along with Milton and Carolyn Berry, that they were required to file an answer by Decem ber 14, 20 14, and that if they failed to answer, the allegations in the Com pliance Specification would be deem ed true. 10 The failure to file an an swer, accordin g to the Com pliance Specification, would thereafter preclude the Com panies an d Milton and Carolyn Berry from controverting the allegations contain ed therein. 11 No answers were filed, and on February 12, 20 15, the NLRB’s gen eral counsel filed a m otion for default judgm ent. 12 The Board then issued two Notices to Show Cause, 6 R. Doc. 10 -4. R. Doc. 10 -4 at 2– 3. 8 R. Doc. 10 -4 at 3– 4. 9 R. Doc. 10 -4 at 4. 10 R. Doc. 10 -4 at 29– 30 . 11 R. Doc. 10 -4 at 29– 30 . 12 R. Doc. 10 -5 at 2. 7 2 allowing the Com panies and the Berry’s an opportunity to respond to the allegations. 13 No responses were filed. As a result, the Board entered default judgm ent and issued a Supplem ental Decision and Order, which addressed the am ount of backpay due and concluded that the Com panies and Milton and Carolyn Berry, personally, were jointly and severally liable for that am ount. 14 As of the date of the Supplem ental Decision and Order, the am ount owed was $ 223,891.0 0 . 15 Because the Board’s Supplem ental Decision and Order concluded that Milton and Carolyn Berry were personally liable, 16 the Board’s Contem pt, Com pliance, and Special Litigation Branch in itiated an investigation into Milton and Carolyn Berry’s finances. It was during this investigation that the Board issued adm inistrative subpoenas to First NBC Bank; J efferson Financial Credit Union; Liberty Bank; Regions Bank; and Specialized Loan Servicing, LLC. 17 The subpoenas seek copies of records and other docum ents pertaining to various financial accounts m aintained by Milton and Carolyn Berry. 18 Berry then filed a m otion to quash the subpoenas. 19 This m otion to quash is presently before the Court for consideration. LAW AN D AN ALYSIS Pursuant to the Right to Financial Privacy Act (“RFPA”), the Governm ent m ay obtain financial records pursuant to an adm inistrative subpoena only if, as an initial m atter, “there is reason to believe that the records sought are relevant to a legitim ate law 13 R. Doc. 10 -6 at 2; R. Doc. 10 -7 at 2. See generally R. Doc. 10 -8 . 15 R. Doc. 10 -8 at 26. 16 R. Doc. 10 -8 at 3. 17 See R. Doc. 10 -9. 18 R. Doc. 10 -9. 19 R. Doc. 9. 14 3 enforcem ent inquiry.”20 The custom er m ay oppose the subpoena by filing a m otion to quash within 10 days of service, or within 14 days of the m ailing, of the subpoena. 21 If a m otion to quash is filed, the court m ust deny the m otion unless the m ovant can show som e factual basis supporting the m ovant’s argum ent that the records sought are not relevant to a legitim ate law enforcem ent inquiry. 22 “The m ovant has the initial burden of presenting a prim a facie case that governm ent access to his fin ancial records would be im proper.”23 The m otion m ust include “m ore than sim ply conclusory allegations of irrelevancy,”24 and “the question of relevancy with respect to adm in istrative subpoenas is broad.”25 In this case, Berry filed a m otion to quash, arguing that the adm inistrative subpoenas issued by the Board are not relevant to the ongoing investigation. 26 Berry notes the subpoenas seek his personal financial inform ation but argues that the Com panies were either incorporated or organized as lim ited liability entities, which should shield him from personal liability altogether. 27 Having reviewed the m otion and the argum ents contained therein, the Court finds that Berry has failed to carry his burden. Berry has not presented a prim a facie case that governm ent access to his personal financial records would be im proper. 28 20 12 U.S.C. § 340 5. 21 Id. 22 See, e.g., Hancock v. Marshall, 86 F.R.D. 20 9, 211 (D.D.C. 1990 ); Salm v. N .L.R.B., No. 0 8-MC-0 124 (J S), 20 0 9 WL 218 238 8, at *2 (E.D.N.Y. J uly 20 , 20 0 9); Flem ing v. SEC, No. M-29, 1996 WL 660 90 9, at *1 (S.D.N.Y. Nov. 13, 1996). 23 Salm , 20 0 9 WL 218238 8, at *2 (quoting Panaro v. United States, No. 86-CV-4122, 1987 WL 15951, at *1 (E.D.N.Y. Aug. 5, 1987)) (internal quotation m arks om itted). See also Thom as v. U.S. Dep’t of Hom eland Sec., 876 F. Supp. 2d 1, 6 (D.D.C. 20 12); N im m er v. Sec. and Exch. Com m ’n, No. 8:11-CV-162, 20 11 WL 3156791, at *1 (D. Neb. J uly 26, 20 11). 24 Salm , 20 0 9 WL 218 238 8, at *2 (citing Panaro, 1987 WL 15951, at *1). 25 Id. (citing Brookly n Manor Corp. v . N LRB, No. 99-MC-117, 1999 WL 10 11935 (E.D.N.Y. Sept. 22, 1999)). 26 R. Doc. 14 at 3. 27 R. Doc. 14 at 3. 28 See Salm , 20 0 9 WL 2182388 , at *2. 4 First, Berry’s argum en t that his personal fin ances are irrelevant to the Board’s Decision an d Order is inapposite. The Board alleged in its Com pliance Specification, an d concluded in its Supplem ental Decision and Order, that Milton and Carolyn Berry are personally liable because they failed to adhere to corporate form alities in directing the Com panies. 29 This necessarily created a legitim ate law enforcem ent in terest in Milton’s and Carolyn’s personal finances. Second, the m otion to quash effectively raises an issue that has already been decided, i.e., whether Milton and Carolyn are person ally liable for the debts of the Com panies. It is well established that the m ovant cannot “interpose a defense of an underlying unfair labor practice charge in a subpoena enforcem ent action.”30 Berry had am ple opportunity to raise this defense durin g the adm inistrative proceedings before the NLRB but failed to do so. 31 The Board found in its Supplem ental Decision and Order that Milton and Carolyn Berry are personally liable, and Berry is consequently precluded from controverting that finding at this stage. Third, the Court notes that Berry’s m otion to quash was not filed tim ely. The Board m ailed, via overnight m ail, notice of the bank subpoenas to Berry on Novem ber 12, 20 15. 32 Berry was thus required to file his m otion to quash no later than Novem ber 26, 20 15— within 14 days of the m ailing. 33 Berry did not file the m otion to quash until Decem ber 3, 20 15. 34 29 R. Doc. 10 -4 at 2– 4; R. Doc. 10 -8 at 3. N .L.R.B. v . Line, 50 F.3d 311, 315 (5th Cir. 1995) (citin g D.G. Bland Lum ber Co. v . N LRB, 177 F.2d 555, 557 – 58 (5th Cir. 1949); N LRB v. Dutch Boy , Inc., 60 6 F.2d 929, 933 (10 th Cir. 1979). See also N LRB v. C.C.C. Assocs., 30 6 F.2d 534, 538 (2d Cir. 1962); 31 See BACKGROUND, supra. 32 See R. Doc. 10 -9. 33 12 U.S.C. §§ 340 5, 3410 . 34 Berry originally filed the m otion to quash on Decem ber 3, 20 15 (R. Doc. 3), but it was m arked deficient. Berry refiled the m otion on Decem ber 21, 20 15. See R. Doc. 14. 30 5 CON CLU SION For the foregoing reasons, the m otion to quash adm in istrative subpoena is hereby D EN IED . Berry has failed to show that governm ent access to his personal financial records would be im proper. N e w Orle a n s , Lo u is ian a, th is 2 3 rd d ay o f D e ce m be r, 2 0 15 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 6
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