THE MAD ROOM, LLC, d/b/a BALL AND CHAIN, ALTOS MEXICANO, LLC d/b/a TAQUERIAS EL MEXICANO, LITTLE HAVANA ARTS BUILDING, LLC, and LA GRAN FIESTA, LLC, Plaintiffs, v. THE CITY OF MIAMI, Defendant CASE NO. 21-23485-CV-ALTMAN/REID United States District Court, S.D. Florida Signed December 08, 2022 Entered December 09, 2022 Counsel Jason Steven Koslowe, Ezra Saul Greenberg, Jason Peter Hernandez, Matthew Clarence Dates, Maria Macarena Arhancet Fehretdinov, Coral Del Mar Lopez, Ryan Thomas Thornton, Stearns Weaver Miller Weissler Alhadeff and Sitterson PA, Miami, FL, Chelsea Emma Koff, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, FL, for Plaintiffs. Araizu Sheila Oretsky, Greenberg Traurig, P.A., Miami, FL, Christopher Allan Green, Brandon Luis Fernandez, Eric John Eves, John Anthony Greco, Kevin Renard Jones, Bryan E. Capdevila, Kerri Lauren McNulty, City of Miami Office of the City Attorney, Miami, FL, Daniel R. Lazaro, Miranda Lundeen Soto, Raquel A. Rodriguez, Jennifer Olmedo-Rodriguez, Jesse Stolow, Buchanan Ingersoll & Rooney PC, Miami, FL, Gretchen L. Jankowski, Pro Hac Vice, MacKenzie A. Baird, Pro Hac Vice, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA, Kelly Haze Kolb, Michael Edward Dutko, Jr., Buchanan Ingersoll & Rooney PC, Fort Lauderdale, FL, for Defendant. Reid, Lisette M., United States Magistrate Judge ORDER ON MOTION TO QUASH NON-PARTY SUBPOENA *1 This Matter is before the Court on a Motion filed by non-parties Café La Trova LLC d/b/a Café La Trova, La Vitrola Enterprises, LLC d/b/a Old's Havana Cuban Bar & Cocina, and Oriental Chinese Restaurant Inc. d/b/a Sala'o Cuban Restaurant and Bar (collectively, the “Non-Parties”), to quash or for a protective order regarding the October 26, 2022 Subpoenas to Produce Documents and to Permit Inspection of Premises (collectively, the “subpoenas”) served by Plaintiffs, pursuant to Rules 26 and 45 of the Federal Rules of Civil Procedure, and to seek an award of attorneys’ fees pursuant to Rules 26(c)(3), 37(a)(5), and 45(d)(1) of the Federal Rules of Civil Procedure. [ECF No. 201]. Having heard from the Parties, and after balancing the needs of Plaintiffs’ case against the burden on the Non-Parties, the Court finds Plaintiffs have shown the evidence requested is relevant and narrowly tailored to serve its needs and that there is no other feasible means to obtain the evidence. The Court DENIES the Non-Parties’ Motion to Quash. I. Relevant Background A. The First Amended Complaint Plaintiffs Mad Room LLC, Little Havana Arts Building LLC, La Gran Fiesta LLC, and Altos Mexicanos LLC filed this action in September 2021 against the City of Miami, alleging that beginning in January 2018, the City “developed and deployed a deliberate policy and plan of action ... to destroy Plaintiffs’ fundamental and constitutionally protected rights to their real property and in their business.” [ECF No. 212 at 4 ¶ 1]. Plaintiffs claimed the City used its administrative departments including Building, Planning, Zoning, Fire, Police, Code Enforcement and its staff and employees to harass and close the businesses, ultimately causing lost profits in the amount of $27.91 million. [Id.]. Additionally, Plaintiffs claimed that the City Attorney and her office were directly involved in planning and implementing the City's unlawful policies to target Plaintiffs. See [id. at 13 ¶ 31]. The First Amended Complaint states: [T]o conceal their plan and policy, the City, through Commissioner Carollo and the City Attorney, devised the concept of initiating unfounded inspections of Plaintiffs’ properties and businesses, manufacturing violations of City Code and other regulations, and using [the] same to fine, harass, disrupt, and ultimately shut Plaintiff's businesses .... [Id.]. Plaintiffs have further raised a claim of violation of their equal protection rights under the Fourteenth Amendment asserting that “the City intentionally treated Plaintiffs differently from others identically situated.” [Id. at 93–94]. Plaintiffs allege they were treated differently than “all other restaurant property and business owners and operators within the Calle Ocho area of the City of Miami, who are prima facie identical to Plaintiffs in all relevant respects,” that there was no rational basis for the City's discriminatory conduct, and that the City acted with animus against them. [Id.]. Plaintiffs detail in their Amended Complaint the City's decision to revoke their certificates of occupancy issued by the City in 2010 and 2014. They seek damages under 42 U.S.C. §§ 1983 and 1988(b), as well as a preliminary and permanent injunction. Plaintiffs contend the Non-Parties are properties in the Calle Ocho area identical to Plaintiffs in all relevant respects. [Id. at 93; Id. at Addendum B & C]. B. The Non-Party Subpoenas *2 Plaintiffs seek permission to inspect the premises of the Non-Party businesses and to require the businesses to produce the following documents: 1. Documents concerning any notices, notices of violations, citations, or violations issued by the City of Miami (including any City Officials or City Departments) specifically relating to You from January 1, 2018 until the Present. 2. Documents concerning any visit, investigation, analysis or inspection, conducted by the City of Miami (including any City Officials or City Departments) specifically relating to You from January 1, 2018 until the Present. 3. Any building plans, or permit-related Documents, submitted by You to the City of Miami from January 1, 2018 until the Present. 4. Copies of Your Occupant Load from the City of Miami. 5. Copies of Your Business Tax Receipt or Occupational License from the City of Miami. [ECF No. 201 at 24]. At a hearing held on the Motion to Quash, the Non-Parties and Plaintiffs agreed that Plaintiffs had received those documents from the City, but Plaintiffs further sought the following documents which they maintained were related to the Requests 1 and 3: “[D]ocuments regarding the scope of work, construction, renovation done at the businesses from when they took over the business to the present, and this again includes documents not provided to the city, only those not provided to the city that would include items such as contracts for such construction or renovation and plans identified as construction renovations done.” [ECF No. 234 at 25]. Plaintiffs explained that the City had suspended its certificate of use when it determined the scope of work done to renovate the properties called for a “level three” scope of review. In order to determine whether the Non-Party business properties were comparable, it was vital for Plaintiffs to review the construction plans and related documents to see the scope of the work done on the property. Plaintiffs had narrowed its search for comparables on the issue of scope of work and to only the four Non-Party businesses after reviewing documents provided by the City and doing sufficient due diligence to determine that major renovations had occurred on these properties. Plaintiffs argued that they needed evidence on the full scope of the construction renovation to make their equal protection argument and it was clear that the Non-Party properties had done far more construction or renovations to their properties than the City had noted in its records. With respect to relevance, Plaintiffs noted the City has argued in its motion to dismiss Plaintiffs’ amended complaint that Plaintiffs had “not alleged that these entities too were in violation of various ordinances but have not been subject to enforcement” and “failed to adequately show that the entities listed in Addendum C are similarly situated.” [Id. at 19]. The district judge dismissed the equal protection claim in Plaintiffs’ initial complaint for failing to provide sufficiently detailed allegations and Plaintiffs claim they must provide evidence to support the claim in the newly amended complaint and have done sufficient due diligence to establish that these Non-Parties likely have relevant evidence. [Id.]. *3 Finally, Plaintiffs stated that it would defer its request to inspect the Non-Party businesses until after they had received any documents from the Non-Parties. The Non-Parties challenge Plaintiffs’ claim of relevance. They contend, to the extent that Plaintiffs want documents showing the scope of work on their properties that were not provided to the City, the evidence is not relevant to show an equal protection violation because the City would have been unaware of the scope of the work at the time. Further, Plaintiffs should not be permitted to usurp the City's role to regulate compliance with building codes. Finally, the Non-Parties argue the subpoena is “a fishing expedition by a vindictive competitor [Plaintiffs]” who want to see the Non-Parties’ businesses shut as the subpoena would subject the Non-Parties to fresh scrutiny from the City building inspectors. [Id. at 10–15]. Plaintiffs’ Inspection of The Public Areas of the Non-Party Businesses A new issue arose at the hearing on the Motion to Quash. The City informed the Court and Non-Party Counsel that, while the Motion to Quash was pending, Plaintiffs had inspected the Non-Parties’ properties and had recently provided the City with reports of the inspection prepared by Plaintiffs’ experts. According to the City, Plaintiffs’ inspection was improper in light of the pending Motion to Quash and the City's understanding that the inspections would not take place until the Court had considered and ruled on the Motion. Plaintiffs responded, however, that its experts had only viewed public areas in the Non-Party businesses that any member of the public could view and that it had not performed the extensive inspection of the premises it had requested by subpoena. Plaintiffs further claimed that during meetings with counsel for the Non-Parties regarding the subpoenas, counsel had noted that the businesses were open to be viewed by the public and suggested “rather than do a formal inspection where you come in with measuring tape and all this machinery or, excuse me, specialized equipment and disrupt business or can't you just, as a patron, as a regular patron of the restaurant, come in, look around, see what the place looks like and then you can compare it to publicly-available data and floor plans.” [Id. at 27–28]. Plaintiffs described the expert reports as “photographs and observations from our experts having gone to visit these properties as well as the plaintiffs having done so.” [Id.]. Counsel for the Non-Parties explained at the hearing that he did not invite Plaintiffs to inspect the public areas of the properties. The Non-Parties have not, however, disputed Plaintiffs’ account that the experts viewed only the areas of the Non-Party businesses that were open and available to the public. In a case where a plaintiff similarly gathered evidence through observation of a railroad crossing on a public road, a magistrate judge found the plaintiffs’ experts “could properly inspect the subject area—a public railroad crossing at Claribel Road and Terminal Avenue—without the necessity of a formal notice of inspection.” Rodriguez v. County of Stanislaus, No. 1:08-cv-00856 OWW GSA, 2010 WL 3733843, at *2 (E.D.CA Sept. 16, 2010). The Undersigned cannot point to any rule of civil procedure that was violated here and can find no authority to support sanctioning Plaintiffs and their experts for viewing and reporting on matters visible to the public. C. Analysis of the Motion to Quash *4 The scope of discovery under a Rule 45 non-party subpoena is the same as the scope of discovery under Fed. R. Civ. P. 26(b)(1), “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case...” See also Jordan v. Comm'r, Mississippi Dep't of Corr., 947 F.3d 1322, 1329 (11th Cir. 2020). Relevance depends upon the claims asserted in the underlying action and the legal standards governing those claims. Id. Rule 45 requires the issuing court quash or modify a subpoena if it requires the disclosure of privileged or other protected matter, where no exception or waiver applies, or the subpoena subjects the party to “undue burden.” Fed. R. Civ. P. 45(c)(3)(A). As a result, in determining whether to quash the subpoena, the Court should balance the need for the particular discovery against the burden imposed with production and the opposing party's interest in maintaining confidentiality of the requested information. Fadalla v. Life Auto. Prods., Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2011). The party seeking to quash the subpoena bears the burden to establish that the information sought is protectable under Rule 45, but the party issuing the subpoena bears the burden of proving the requests are relevant. Id. Here, the Court must first examine what Plaintiffs must show in order to prove their Fourteenth Amendment Equal Protection claim. To succeed on the claim Plaintiffs must show they were treated differently from “similarly situated” businesses and that there was no rational basis for the difference in treatment. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1204–05 (11th Cir. 2007). This requires that Plaintiff produce factual details to establish they were treated differently from others who are identical in certain relevant respects. Id. Even at the pleading stage, general and conclusory allegations that others are similarly situated will not support the claim. Id. at 1206. The subpoena seeks information from businesses Plaintiffs have identified as comparators after reviewing evidence received from the City regarding businesses similar to theirs and situated in the same geographic area. Plaintiffs claim they reviewed Notices of Violation received from the City for the businesses, studied the layout and the photographs of the businesses from publicly available data and social media websites, and further that showed substantial renovations must have been made to the properties within recent years. Yet, the City claims it does not have construction or renovation plans reflecting the total renovations. Without the renovation or construction plans, Plaintiff contends it cannot produce the factual details necessary to establish its claim that the City shut only Plaintiffs’ businesses when they failed to make certain upgrades when renovating more than 50 percent of the property. Notably, the Non-Parties have not denied Plaintiffs’ claims that they have done substantial renovations or construction. Plaintiffs have established relevance and have shown that they have no other means to obtain the evidence. While complying with the subpoena may burden the Non-Parties, Rule 45 requires the court to determine whether that burden is “undue.” The factors to be analyzed to make that determination includes relevance, and the expense and possible inconvenience to a non-party is also important and can weigh against disclosure. Jordan, 947 F.3d at 1337; see also Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (“[I]f the person to whom the document request is made is a non-party, the court may also consider the expense and inconvenience to the non-party.”). While on the surface the Non-Parties’ argument against relevance—that producing documents the City does not have is unnecessary because that would suggest that the City lacks knowledge of the scope of work—may seem convincing, according to Plaintiffs it is obvious that these businesses have been substantially renovated and the City had actually issued Notices of Violations to these businesses in relation to at least a portion of these renovations, and with respect to Sala'o, the City did review the plans and revoke the certificate of use but did not shut the business. Thus, they contend, the City must have been aware that the Non-Parties had done some renovation or construction work but did not subject the Non-Parties to the same scrutiny as Plaintiffs. [ECF No. 234 at 21]. The Plaintiffs simply need information regarding the overall scope of the work and when the work was done in order to determine whether it compares to the scope of the work for which Plaintiffs were cited and shut. Plaintiffs also dispute that they intend to harm their competitors by their request because the whole purpose of their lawsuit is to prove that their businesses, like their competitors, should not have been shut. *5 While the Court understands the Non-Parties’ concern that responding to the subpoena would risk increased scrutiny by the City, that alone does not present a basis for the Court to quash the subpoena. Also, to the extent the Non-Parties incur reasonable expenses relating to producing the documents, such as research or copying costs, they are entitled to reimbursement of these costs from Plaintiffs. Further, restricting the documents at this stage of the case to use and review by only the attorneys involved in the litigation will also protect the Non-Parties from disclosure of private business information. The Court orders the parties to restrict the documents produced to solely attorneys involved in this case. After balancing the Plaintiffs’ need for the evidence against the burden to the Non-Parties, the Court finds the production would not be an undue burden and, consequently, the Motion to Quash is DENIED. DONE AND ORDERED at Miami, Florida this 8th day of December 2022.