United States District Court, S.D. New York
WATSONTOWN TRUCKING COMPANY and JUDITH A. RENDA, Plaintiffs,
U.S. DEPARTMENT OF LABOR, Defendant.
OPINION AND ORDER
KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE.
Watsontown Trucking Company (“Watsontown”) and
Judith A. Renda (together, “Plaintiffs”) bring
this action under the Administrative Procedures Act
(“APA”), 5 U.S.C. ch. 5, and the Declaratory
Judgment Act, 28 U.S.C. ch. 151, seeking judicial review of
Defendant Department of Labor's refusal to comply with
two subpoenas issued by Plaintiffs in connection with a
personal injury action in New York State Supreme Court,
Westchester County. Defendant now moves to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(6). For
the reasons that follow, Defendant's motion is granted.
here are defendants in an underlying personal injury lawsuit
that is pending in state court, and they have filed this
action to enforce two subpoenas they served on employees of
the Occupational Safety and Health Administration
(“OSHA”) in that lawsuit. The underlying
litigation is an action to recover for injuries allegedly
sustained by Michael Lenahan on May 9, 2013: Lenahan
“was working on a traffic light in a bucket above
traffic … when a tractor trailer operated by …
Renda, and owned by … Watsontown[, ] … struck
the bucket following which Mr. Lenahan fell from the bucket
to the ground.” (FAC ¶¶ 2, 6).
conducted an investigation of the incident; it issued
citations to, and ultimately settled with, Lenahan's
employer, Verde Electric Corp. (FAC ¶ 7). OSHA
determined that “one of the chief causal factors of the
accident [was] the lack of warning devices” surrounding
the raised bucket in which Lenahan was working. (Id.
at ¶ 9). OSHA also remarked that it was “entirely
possible that the boom of the aerial lift may have been
parallel to the support arm of the traffic signals thereby
hiding it from view” and added that the bucket was a
“drab grey, ” “which may have allowed it to
blend into the overcast conditions.” (Id.).
Plaintiffs aver that “[t]hese findings are essential
for [their] defense” in the underlying personal injury
action insofar as they “provide evidence that [ ] Renda
was not negligent[.]” (Id. at ¶ 10).
April 27, 2016, Plaintiffs' counsel served subpoenas on
OSHA employees Robert Ortiz and Diana Cortez, directing them
to appear for depositions. (Dkt. #4-8, 4-9; FAC ¶ 11).
After receiving the subpoenas, Defendant informed Plaintiffs
that Ortiz was no longer employed by OSHA and that, as to
Cortez, Plaintiffs were required to submit a statement
explaining why they needed her testimony. (FAC ¶ 11;
Dkt. #4-10). Plaintiffs responded on May 10, 2016, explaining
that while they had “some documentation” from
OSHA's investigation, they wanted to depose “the
appropriate representative” - whom they presumed to be
Cortez - because “any documentation generated by OSHA
would be deemed hearsay if the representative who prepared
the report(s) did not appear in person to offer deposition
testimony regarding the investigation performed and any
conclusions reached.” (Dkt. #4-10). Plaintiffs added
that they also wanted to understand “what [Cortez]
might testify to if she is subpoenaed to testify at
the time of trial.” (Id.).
responded on May 26, 2016, citing its obligation to
“weigh the party's ‘need for the testimony
[or documents] against the adverse effects on
[Defendant's] concerns, '” which include
“‘centralizing the dissemination of information
of the agency (e.g. restricting investigators from expressing
opinions on policy matters), minimizing governmental
involvement in controversial matters unrelated to official
business and avoiding the expenditure of government time and
money for private purposes.'” (Dkt. #44-11 (quoting
Baker v. United States Dep't of Labor, 31
F.Supp.2d 985, 987 (S.D. Fla. 1998) (first alteration in
May 26 letter, Defendant acknowledged Plaintiffs'
proffered reasons for seeking Cortez's testimony, but
declined to authorize either Ortiz or Cortez to testify.
(Dkt. #44-11). It explained that Plaintiffs needed to show
that the “information sought is both relevant and
essential to the presentation of his or her case”; that
there “are no reasonable alternative means for
acquiring the information sought[;] and that a significant
injustice would ensue if the desired testimony or records
were not to be made available.” (Id. (internal
quotation marks omitted) (quoting Herr v. McCormick
Grain-The Heiman Co., No. 92-1321, 1994 WL 324558, at *2
(D. Kan. June 28, 1994))). Defendant went on to explain that
Cortez was an “Area Director” who worked in a
supervisory role and did not participate in the
investigation, and, further, that Ortiz had left OSHA before
the investigation was completed and would likely not
“be able to provide the depth of knowledge you
seek.” (Id.). Moreover, Defendant noted,
Plaintiffs could have obtained information about the
investigation from alternate sources, such as a request under
the Freedom of Information Act (“FOIA”) for the
investigative file. (Id.). Finally, Defendant
explained that Cortez had significant managerial and public
outreach responsibilities, and diverting her away from her
role to prepare and sit for a deposition “would be a
drain on OSHA's scarce resources.” (Id.).
receiving this denial, Plaintiffs sent a letter on July 6,
2016, asking for “reconsideration of this
denial.” (Dkt. #4-12). Plaintiffs offered to work with
OSHA to determine the employee who would have the most
information and offered to travel to OSHA's offices for
the deposition. (Id.). Plaintiffs also reiterated
that the documentation in the investigative file would be
“useless” without a witness to authenticate it,
and that they needed this testimony because “much of
[their] defense relies upon the ability to prove that [Verde
Electric Corp.] was negligent in maintaining a safe work
place for [Lenahan.]” (Id.). Defendant then
informed Plaintiffs, by email dated July 14, 2016, that
“unlike FOIA, there is no internal appeal process for
this type of denial, ” and, accordingly, that their
second letter was not considered. (Dkt. #4-13).
filed this action for judicial review several months later,
on November 26, 2016. (Dkt. #1). They filed an amended
complaint on December 30, 2016. (Dkt. #4). On May 9, 2017,
Defendant informed the Court of its intent to move to dismiss
the complaint (Dkt. #12), and the Court held a pre-motion
conference with the parties on May 12, 2017 (Dkt. #14).
Defendant filed its motion to dismiss on June 30, 2017 (Dkt.
#15); Plaintiffs filed their opposition brief on July 31,
2017 (Dkt. #19); and the motion was fully briefed when
Defendant filed its reply on August 14, 2017 (Dkt. #20).