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Watson Trucking Co. v. U.S. Department of Labor

United States District Court, S.D. New York

January 17, 2018

WATSONTOWN TRUCKING COMPANY and JUDITH A. RENDA, Plaintiffs,
v.
U.S. DEPARTMENT OF LABOR, Defendant.

          OPINION AND ORDER

          KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE.

         Plaintiffs 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.

         BACKGROUND[1]

         A. Factual Background

         Plaintiffs 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).

         OSHA 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).

         On 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.).

         Defendant 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 original))).

         In the 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.).

         After 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).

         B. Procedural Background

         Plaintiffs 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).

         DISCUSSION

         A. ...


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