Young v. Dollar Tree Stores, Inc.

Filing 379

ORDER granting 337 Defendant's Motion to Require Plaintiff to Comply with Fed. R. Civ. P. 5 Service Requirements with Respect to Conditional Certification Notice Procedures, as set forth in the order, by Magistrate Judge Michael J. Watanabe on 2/22/2013.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01840-REB-MJW
TANYA YOUNG, on her own behalf and
on behalf of others similarly situated,
Plaintiffs,
v.
DOLLAR TREE STORES, INC.,
Defendant.

ORDER REGARDING
DEFENDANT’S MOTION TO REQUIRE PLAINTIFF TO COMPLY WITH FED. R. CIV.
P. 5 SERVICE REQUIREMENTS WITH RESPECT TO CONDITIONAL
CERTIFICATION NOTICE PROCEDURES
(DOCKET NO. 337)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendant’s Motion to Require Plaintiff to
Comply with Fed. R. Civ. P. 5 Service Requirements with Respect to Conditional
Certification Notice Procedures (docket no. 337). The court has considered the subject
motion (docket no. 337), the response (docket no. 350), and the reply (docket no. 354).
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
In the subject motion (docket no. 337), Defendant seeks an order from this court
directing Plaintiff to provide to Defendant all papers that Plaintiff has received in

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response to notices sent by Plaintiff’s counsel to putative class members, pursuant to
the Court’s Order Granting Plaintiff’s Motion for Conditional Certification (docket no.
264). Defendant also requests that the Court Order Plaintiff to serve Defendant with
copies of all corrected notices and other mailings to putative class members issued as
part of the notice process in this collective action. In Defendant’s reply (docket no. 354),
Defendant states that Plaintiff has now provided access to the consent forms for the
individuals who returned corrected forms. Therefore the subject motion (docket no.
337) concerns the following documents: (1) the original consent forms submitted by
class members who did not return a timely corrected consent form, (2) ALL completed
questionnaires submitted by class members, and (3) ALL corrected notice forms and
related papers issued to class members who earlier submitted the defective consent
forms.
Defendant argues that it needs the discovery listed above in order to verify the
accuracy of the list of opt-in plaintiffs. In particular, Defendant points to Plaintiff’s history
of inadvertent clerical errors in this case, and thus Defendant alleges it is entitled to
discover and compare for itself that no individuals who were sent untimely consent
forms have been included as opt-in plaintiffs. See docket no. 313. Moreover,
Defendant argues that the attorney-client privilege does not apply to the discovery
requested for invalid consents above and that Plaintiff has cited no legal authority
suggesting that the attorney-client privilege applies under the unique facts,
circumstances, and current posture of this case.
Plaintiff argues that the subject motion (docket no 337) should be denied for the
following reasons: (1) that the erroneous consent forms from the original mailing and the

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contact information forms submitted by those potential opt-in plaintiffs will not be filed
with the court nor will they be used to determine who is an opt-in plaintiff and in this
case; (2) that these consent and contact information forms have been declared invalid
by Judge Blackburn in his Order (docket no. 313) and thus they are not original consent
forms as defined under Fed. R. Civ. P. 5(a); (3) that these consent and contact
information forms are not pleadings and are further not relevant to any claim or defense;
and (4) that the court has previously denied Defendant’s motion requesting copies of
those same forms in the motion for sanctions (docket no. 304 at 13) and (docket no.
313 at 8).
Here, I find that Fed. R. Civ. P. 5 sets forth the general filing requirements for all
pleadings and other papers and the general service requirements for all pleadings and
other papers except the complaint and summons. The provisions of Rule 5 are
designed to achieve two objectives: to ensure that each party to a civil action obtains a
copy of all documents formally used in prosecuting and defending the case and to
create a rationally-assembled record with the clerk. This is a general service and filing
rule. Moreover, courts expansively construe Rule 5's inventory of legal papers that
must be served. See Elborough v. Evansville Community Sch. Dist., 636 F. Supp.2d
812, 826 (W.D. Wis. 2009) (Rule 5 applies to papers by all parties, including involuntary
plaintiffs). I further find that the notification process is controlled by the court. See
Davis v. Westgate Planet Hollywood Las Vegas, LLC, 2009 WL 4019424, at * 5 (D.
Nev. Nov. 19, 2009). Neither party has cited any legal authority directly on point for the
discovery requested in the subject motion (docket no. 337), and such discovery being
requested is based upon the unique facts, circumstances, and current posture of this

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case. The discovery requested under these unique facts, circumstances, and current
posture of this case appears to be one of first impression. Here, I conclude that the
discovery requested clearly falls within the broad scope of Rule 5, noting the fact that
such discovery requested within the subject motion (docket no. 337) was generated in
response to Judge Blackburn’s court-ordered notice procedures. I further conclude that
the consent forms and questionnaires are not specifically exempted from Rule 5's
service requirements and that such discovery requested in the subject motion (docket
no. 337) is relevant on the issue of the accuracy of the list of opt-in plaintiffs.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law, this
court ORDERS:
1.

That Defendant’s Motion to Require Plaintiff to Comply with Fed. R. Civ. P.
5 Service Requirements with Respect to Conditional Certification Notice
Procedures (docket no. 337) is GRANTED;

2.

That Plaintiff shall provide to Defendant the following discovery on or
before March 22, 2013:
a.

The original consent forms submitted by class members who did
not return a timely corrected consent form;

b.

ALL completed questionnaires submitted by class members; and

c.

ALL corrected notice forms and related papers issued to class
members who earlier submitted the defective consent forms; and

3.

That each party shall pay their own attorney fees and costs for the subject

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motion (docket no. 337).
Done this 22nd day of February 2013.
BY THE COURT
s/ Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE