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Louisiana Record

Sunday, May 31, 2020

Judge quashes parts of vacuum cleaner firm's subpoena

Federal Court

By John Sammon | Apr 7, 2020

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A subpoena was partly quashed in a dispute between a vacuum cleaner company and some of its distributors by a U.S. magistrate. | Stock photo

NEW ORLEANS – A federal magistrate quashed parts of a subpoena as being overbroad or irrelevant in a complaint in which a vacuum cleaner company claims breach of contract by several of its distributors.

Chief U.S. Magristrate Karen Wells Roby quashed parts of a subpoena, limited most discoveries by date and granted other parts of the subpoena issued by Scott Fetzer Co. Charles Nugent, a former distributor for The Kirby Co., a division of Scott Fetzer, sought to quash the subpoena.

Scott Fetzer filed a complaint in the U.S. District Court Louisiana Eastern District seeking damages from defendants who worked as independent distributors of home cleaning systems. The claim alleges breach of contract, tortious interference with prospective business relations, unfair competition and civil conspiracy.   

Defendants Marcus Quinn and Nathan Ramker worked as independent contractors for The Kirby Co., a division of plaintiff Scott Fetzer.

Also named as a defendant is the SunFlora Co.

Kirby sells home cleaning systems through in-home demonstrations conducted under independent distributors.

“According to Fetzer, distributors are the lifeblood of Kirby’s business responsible for promoting and increasing in-home sales and use of Kirby’s cleaning systems through the development of an independent sale force,” the court brief said.

SunFlora Co. operated in Florida and sold CBD products with Quinn serving as president. SunFlora actively recruited individuals to open their own stores and become affiliates to sell their own CBD products.

Officials at Kirby alleged that in 2018 it was discovered Quinn was soliciting and attempting to recruit active Kirby distributors to become involved in selling or promoting CBD products.

Charles Nugent was employed by Kirby and Fetzer as a distributor from 2001 to 2018. Nugent’s wife Crystal opened a CBD store in New Orleans.

In October of 2018 Kirby sent a letter to Quinn and Ramker demanding that they cease violating their distributor agreement by selling CBD products and recruiting distributors to do the same. Kirby issued a written policy prohibiting improper conflict of interest with outside businesses and threatened Nugent with termination for allegedly soliciting and attempting to recruit distributors of Fetzer for opportunities in the CBD business. Nugent later resigned from Kirby and Fetzer.

In February of 2019, Kirby accused Quinn and Ramkin of wrongful conduct and terminated their distributor agreements. A spate of other departures began when other distributors learned the high-performing Quinn no longer worked for Kirby and Fetzer, Nugent said.

Fetzer sued Quinn in June of 2019 in the Cuyahoga Court of Common Pleas.  In December 2019 the case was moved to the U.S. District Court for East Louisiana.

A subpoena was served on Quinn to acquire documents for the discovery period of the lawsuit. Nugent alleged Kirby and Fetzer had served the subpoena on him to harass Quinn. His motion to quash said that the subpoena did not allow adequate time to comply.

“The plaintiff Fetzer maintained the motion to quash was untimely and that all of Nugent’s objections lack merit,” the brief said.

In analyzing the allegations, the court noted that because of unusual circumstances and Nugent's changing attorneys, the timeliness of response to the subpoena was not an issue. 

The court brief also said Nugent, was one of Fetzer and Kirby’s top-performing and most successful distributors.

“It appears likely Fetzer is disconcerted because Nugent and other top distributors had found a way to diversify their sales and Fetzer wanted their distributor-base to be an exclusive employ,” the opinion read.

The court granted a portion of requests to quash the subpoena, and denied other parts. For most of the subpoena requests that were allowed, Judge Roby set a date limit from Jan. 1, 2018, with the critical period would be capped at Nov. 28, 2020 to match the two-year non-compete terms of Nugent's contract with Kirby and Scott Fetzer.

Nugent’s request to quash the subpoena seeking operating documents on the CBD business and the health benefits of the CBD substances was granted. The court said that was irrelevant to the lawsuit.

The court denied Nugent’s motion to quash asking for communications documents between Nugent and the defendants Quinn and Ramker. But it did agree to quash a request for communications from the defendant's wives, who never worked as distributors for Kirby.

The court denied Nugent’s motion to quash communications with SunFlora.

The court declared it “overbroad” and allowed quashing of requests for communications between Nugent and any Kirby employee, as well as any person not related to the lawsuit. 

  

  

   

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KIRBY CO.