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Silva v. Allpak Container, LLC

United States District Court, W.D. Washington, Seattle

March 30, 2017

MARTINO SILVA, individually, Plaintiff,
ALLPAK CONTAINER, LLC, a Washington Corporation, Defendant.




         This 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.


         A full background of this case is not necessary for the purposes of this motion.

         Plaintiff 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 2.

         On July 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.”).

         Mr. 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 Allpak:

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 attendance policy.

Id. Allpak has not subsequently offered to reinstate Mr. Silva. Dkt. #1-1 at 4.

         Plaintiff 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.

         Allpak 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.

         On 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 at 4-5.

         On October 26, 2016, Allpak served a Subpoena Duces Tecum (“subpoena”) on Tange Fit, seeking documents related to Plaintiff's employment with or ownership of Tange ...

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