Young v. Dollar Tree Stores, Inc.
Filing
311
ORDER granting 290 Motion to Compel. By Magistrate Judge Michael J. Watanabe on 11/9/12. See order for further information. (kfinn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01840-REB-MJW
TAYNA YOUNG, on her own behalf and on behalf of others similarly situated,
Plaintiff(s),
v.
DOLLAR TREE STORES, INC.,
Defendant(s).
ORDER REGARDING
DEFENDANT DOLLAR TREE STORES, INC.’S MOTION TO COMPEL AND
MEMORANDUM OF LAW IN SUPPORT (DOCKET NO. 290)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendant Dollar Tree Stores, Inc.’s Motion to
Compel and Memorandum of Law in Support (docket no. 290). The court has reviewed
the subject motion (docket no. 290) and the response (docket no. 309). In addition, the
court has taken judicial notice of the court’s file and has considered applicable Federal
Rules of Civil Procedure and case law. The court now being fully informed makes the
following findings of fact, conclusions of law, and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.
That I have jurisdiction over the subject matter and over the parties
to this lawsuit;
2.
That venue is proper in the state and District of Colorado;
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3.
That each party has been given a fair and adequate opportunity to
be heard;
4.
That Plaintiffs seek to recover unpaid wages for work allegedly
performed off-the-clock. Plaintiffs assert they were required to
record an unpaid thirty (30) minute meal break when they worked a
shift of six (6) or more hours and that they worked during those
breaks. See Amended Complaint (docket no. 28), ¶ 50. Defendant
Dollar Tree Stores, Inc. [ hereinafter “Defendant Dollar Tree”]
denies these claims and seeks discovery to obtain evidence to
refute Plaintiffs’ allegations;
5.
That Defendant Dollar Tree seeks an Order from this court
compelling Plaintiffs to answer Defendant Dollar Tree’s “Cellular
Telephone Interrogatory No. 13” which states:
Identify the cellular telephone number(s) and cellular
telephone service provider(s) for any cellular telephone you
owned, or had in your possession during the shifts you
worked at Dollar Tree, while you were employed by Dollar
Tree as an Assistant Store Manager. (Please identify which
telephone numbers correspond to each service provider. If
you changed service providers but kept the same telephone
number(s), please identify the dates of service with each
provider).
See docket no. 290-6;
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6.
That the temporal scope of the Cellular Telephone Interrogatory
No. 13 above is limited to the time that Plaintiffs worked for
Defendant Dollar Tree as Assistant Store Managers (ASM). This
Interrogatory is limited to the time period for which Plaintiffs are
claiming a violation of the statute and it not overly broad;
7.
That Defendant Dollar Tree also seeks an Order from this court
compelling Plaintiffs to respond to Defendant Dollar Tree’s Request
for Production of Documents regarding “Cellular Telephones”
(docket no. 290-7) which states:
Any and all cellular telephone bills, invoices, and/or records
for the cellular telephones identified in Interrogatory No. 13,
which identify the telephone calls and/or text messages sent
and/or received and, to the extent available, the times at
which they were sent or received;
8.
That Defendant Dollar Tree argues that each Dollar Tree Store has
a telephone available for business purposes. Moreover, that it is
against Defendant Dollar Tree’s written policy for store associates
to carry or use cellular telephones while at work. See Telephone
Usage Policy, attached as Exhibit E to subject motion (docket no.
290). Thus, Defendant Dollar Tree contends that if Plaintiffs used
their cellular telephones during their shifts, they must have done so
during their breaks. Defendant Dollar Tree needs the above
requested discovery in order to compare their written recorded
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clocked in and clocked out records and break records for the
Plaintiffs to determine whether these Plaintiffs were making
personal calls or text messages during a break or while clocked in;
9.
That the discovery sought by Defendant Dollar Tree is directly
related to Plaintiffs’ liability and damage claims as asserted in the
Amended Complaint (docket no. 28) and therefore is relevant and
discoverable pursuant to Fed. R. Civ. P. 26(b)(1) and Bellosa v.
Universal Tile Restoration, Inc., No. 08-60054-CIV, 2008 WL
2620735 (S.D. Fla. June 30, 2008). Moreover, Fed. R. Civ. P.
26(b)(1), states, in pertinent part, “. . . For good cause shown, the
court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence;”
10.
That the requested discovery is not currently in the possession,
custody, and control of Defendant Dollar Tree;
11.
That Plaintiffs’ cellular telephone records will show the dates and
times they used their cellular telephones during their shifts at
Defendant Dollar Tree;
12.
That the requested discovery is not intended to harass the Plaintiffs;
and
13.
That the requested discovery is not overly broad or unduly
burdensome, noting that Plaintiffs should have, in their “control,”
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their cellular telephone bills and records that are normally provided
to Plaintiffs on a monthly basis by their cellular phone providers. If
Plaintiffs have not kept their cellular telephone bills and records,
then Plaintiffs can easily request such cellular telephone bills and
records from their cellular telephone providers and receive copies of
the same either through e-mail attachment(s) from the cellular
telephone providers, by U.S. Mail, or by going to their nearest
cellular telephone provider store near their home and obtain a hard
copy of their cellular phone bills and records.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.
That Defendant Dollar Tree Stores, Inc.’s Motion to Compel and
Memorandum of Law in Support (docket no. 290) is GRANTED;
2.
That Plaintiffs shall provide to Defendant Dollar Tree Stores, Inc.,
responses to Defendant Dollar Tree Stores, Inc.’s “Cellular
Telephone Interrogatory No. 13” on or before November 30, 2012;
3.
That Plaintiffs shall provide to Defendant Dollar Tree Stores, Inc.,
their responses to Defendant Dollar Tree Stores, Inc.’s Request for
Production of Document (docket no. 290-7) on or before
November 30, 2012;
4.
That in responding to Defendant Dollar Tree Stores, Inc.’s Request
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for Production of Document regarding “Cellular Telephones” (docket
no. 290-7) the Plaintiffs shall provide to Defendant Dollar Tree
Stores, Inc., only the date of the call; the time of the call, the call
length (i.e., duration of the call), the telephone number called and/or
the telephone number received, but not the substance of any
conversation or text message, and
5.
That each party shall pay their own attorney fees and costs for this
motion. This court finds that under the circumstances as outlined in
the moving papers, an award of expenses would be unjust.
Done this 9th day of November, 2012.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE
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