United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTIONS TO
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Allpak Container,
LLC (“Allpak”)'s two Motions to Compel, Dkts.
#38 and #39. Allpak moves the Court to compel compliance with
a Subpoena Duces Tecum issued to a business co-owned by
Plaintiff Martino Silva and to compel certain discovery
responses from Plaintiff. For the reasons set forth below,
the Court DENIES both of these Motions.
background of this case is not necessary for the purposes of
Martino Silva began his employment with Defendant Allpak in
March 2012. Dkt. #1-1 at 2; Dkt. #3 at 2. Mr. Silva alleges
he held a full time position as an Industrial Maintenance
Technician with earnable vacation and sick time. Dkt. #1-1 at
26, 2015, Mr. Silva's wife gave birth to their child via
cesarean section. Id. at 3. Following the birth, Mr.
Silva used vacation and sick time for two weeks of paid
leave. Id.; Dkt. #3 at 3. Allpak admits that Mr.
Silva's two-week request for time off did not mention
FMLA leave and that the leave was not designated as FMLA
leave at that time. Dkt. #3 at 3. On August 7, 2015, at the
end of these two weeks, Mr. Silva used FMLA forms to request
additional leave to care for his wife through her recovery
from the C-section. Dkts. #22-1 at 2-8; #24-3. Mr. Silva
originally estimated needing to take leave through September
7, 2015. See Dkt. #22-1 at 4; Dkt. #3 at 3-4. That
same day, Allpak approved Mr. Silva's FMLA leave request.
Dkt. #24-3 at 2. The Court notes that twelve weeks measured
from August 7, 2015, would end on October 30, 2015. On or
about September 10, 2015, Mr. Silva requested to extend his
FMLA leave through October 26, 2015, and this leave request
was approved by Allpak. See Dkt. #22-1 at 4; Dkt. #3
at 4 (“Defendant further admits that it approved
Plaintiff's request for additional leave.”).
Silva coordinated with his supervisor to return to work on
October 26, 2015. See Dkt. #3 at 4. Mr. Silva's
employment was terminated the day he arrived back at work,
allegedly as part of a company-wide reorganization.
See Dkt. #12-2 at 3-4. Specifically, Allpak has
stated in response to interrogatory that a company-wide
reorganization was initiated in August 2015 “to
increase Defendant's profitability, ” resulting in
“multiple layoffs and the elimination of all temporary
labor from facility.” Id. at 4. According to
As part of the layoffs, the company eliminated the
supervisory position of a 25 year employee in the Production
Department. Because that employee had a significant number of
years with the company, knew how to operate every piece of
equipment in the Production Department, and had a broad range
of knowledge regarding the company's operations, Mr.
Keizer and Bob Wescott, Maintenance Manager, made the
decision to transfer the employee to the Maintenance
Department after consulting with the other Maintenance
Technicians in that department. Plaintiff was selected for
layoff from the Maintenance Department because he had the
shortest tenure with the company among the Maintenance
Technicians in that Department, the least amount of
experience, and, unlike the other Maintenance Technicians who
were journeymen or millwrights, Plaintiff was still an
apprentice. Plaintiff also had a prior history of performance
issues regarding failing to follow the company's
Id. Allpak has not subsequently offered to reinstate
Mr. Silva. Dkt. #1-1 at 4.
filed this action in King County Superior Court on March 30,
2016. Dkt. #1-1. Defendant removed to this Court on April 26,
2016. Dkt. #1.
has learned through discussions between counsel that Mr.
Silva has apparently performed work for a business co-owned
by Plaintiff, Tange Fit d/b/a Curves (“Tange
Fit”). Dkt. #40 at 4. According to these discussions,
this work did not begin until March 2016, Mr. Silva did not
receive any compensation for his work, and did not consider
himself an employee of his own business. Id. Tax
records for Tange Fit were produced in discovery.
October 24, 2016, Plaintiff served his Second Interrogatories
and Request for Production on Allpak seeking, in part,
“all emails, memos, and other written documents
referencing or related to the injury and L&I claim made
by Plaintiff Martino Silva as a result of an incident and
injury on July 9, 2013.” Id. at 115-17. In
response to that discovery request, Allpak requested Mr.
Silva sign a release form allowing Allpak access to all files
maintained with the Washington State Department of Labor
& Industries. Id. at 120-21. Mr. Silva refused
to sign that release or produce such records when explicitly
requested in later discovery by Allpak. See Dkt. #39
October 26, 2016, Allpak served a Subpoena Duces Tecum
(“subpoena”) on Tange Fit, seeking documents
related to Plaintiff's employment with or ownership of