Calderone et al v. Scott

Filing 65

ORDER denying 55 Plaintiffs' Emergency Motion for Protective Order and for Sanctions. Signed by Magistrate Judge Carol Mirando on 8/19/2015. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN CALDERONE, GEORGE
SCHWING, MICHAEL ZALESKI and
SELENA LEE, an individual
Plaintiffs,
v.

Case No: 2:14-cv-519-FtM-29CM

MICHAEL SCOTT,
Defendant.
ORDER
Before the Court is Plaintiffs’ Emergency Motion for Protective Order and for
Sanctions and Incorporated Memorandum of Law (Doc. 55), filed on July 28, 2015.
Defendant filed a memorandum in opposition. Doc. 59. For the reasons set forth
below, Plaintiffs’ motion is denied.
Plaintiffs allege that “Defendant unilaterally made direct and preemptive
contact with each and every currently employed opt-in/putative Plaintiff in an
attempt to intimidate, coerce and mislead them into not joining this action prior to
their receipt of Court-authorized notice.”

Doc. 55 at 1.

Plaintiffs argue that

Defendant abused his position as the Lee County Sherriff by sending an email to all
of his deputies in an attempt to dissuade them from joining this action. Id. at 2-3.
Therefore, Plaintiffs request that the Court enter a protective order prohibiting
Defendant from directly contacting or intimidating putative Plaintiffs and for
sanctions for doing the same. Id.

Defendant responds that it was not until Plaintiffs’ counsel made numerous
representations to the media regarding the merits of the case that Defendant decided
to respond and issue a press release.

Doc. 59 at 4-5.

The press release was

distributed to “all local media outlets, members of other law enforcement agencies,
watch commanders, and all ‘users’ of the Sherriff’s Office’s internal ‘listserv,’ which
includes all current employees of the Sherriff’s Office.” Id. at 5.

The press release

stated in part:
Many law enforcement agencies including ours subscribe
to ‘take home vehicles’ and the pros and cons to this policy
are too lengthy to expound on here. In short, the lawsuit
deals with official activity a Deputy may engage in during
the commute to or from their shift. For example a Deputy
leaves his or her residence in Cape Coral on the way to
Bonita and rolls up on an incident in essence, starting their
work early. It is up to that Deputy to notify their supervisor
and reflect same on their time sheet. They would then be
compensated accordingly.
….
The LCSO vehicle policy and associated funding will no
doubt come under closer review by our Board of County
Commissioners and our Insurance Carriers relative to the
final resolve in this matter beyond the Court’s ruling which
as I mentioned earlier, I anticipate will be favorable to my
policy.
Doc. 59-1 at 2-3.

The press release further discussed the Sherriff’s Office’s

compensation practices and policies. Id. Defendant also asserts that neither the
press release nor the content therein were in derogation of any order or prohibition
of the Court. Doc. 59 at 5. To date the Court has not approved a notice to the
putative class members limiting the parties’ communications with the prospective
opt-in Plaintiffs.

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Typically an employer is not precluded from communicating with prospective
opt-in Plaintiffs, particularly at the pre-certification stage. Longcrier v. HL-A Co.,

Inc., 595 F.Supp.2d 1218, 1225-26 (S.D. Ala. 2008).

“[T]here is no mandatory,

across-the-board prohibition against employer contact with prospective class
members in an FLSA collective action at the pre-certification stage.” Id. at 1226.
Although Courts have broad discretion to limit communications between parties and
putative class members, that discretion should be used sparingly due to First
Amendment considerations. Id.
When a movant requests that the Court enter a protective order limiting
communication, that party must show, “(1) that a particular form of communication
has occurred or is threatened to occur, and (2) that the particular form of
communication at issue is abusive and threatens the proper functioning of the
litigation.” Ojeda-Sanchez v. Bland Farms, 600 F. Supp. 2d 1373, 1378 (S.D. Ga. 2009)
(citing Cox Nuclear Med. v. Gold Cup Coffee Servs., Inc., 214 F.R.D. 696, 697-98 (S.D.
Ala. 2003)).

The record must reflect clear and specific evidence that the

communication was abusive and threatened the litigation. Id. at 1379.
Here, the circumstances do not warrant a protective order.

The parties

concede that a particular form of communication occurred. Doc. 59 at 8. Therefore,
the next question is whether that communication was abusive or threatened the
proper functioning of this litigation. Ojeda-Sanchez, 600 F. Supp. 2d at 1378. The
Court finds that it does not.

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In Longcrier, the court entered a protective order when the defendants told the
employee that they were being interviewed for a “survey” when instead the defendant
was gathering data to use against all of its hourly workers in the litigation. 595 F.
Supp. 2d at 1227-30. The employees were called in individually for a meeting with
the defendant’s attorneys which created and “inherently coercive and intimidating
environment.”

Id. at 1227-29.

The court held, “[s]uch manipulation of

unrepresented parties to secure Declarations that HL-A now uses for the purpose of
preventing the very people it misled from being able to litigate their FLSA rights
herein is improper.” Id. at 1229. Accordingly, the court entered sanctions against
the Defendants as well as a protective order limiting the defendant’s communications.

Id. at 1229-30.
The circumstances in this case are nowhere near as egregious as in Longcrier.
Here, Defendant sent the press release to the media as well as to all “users” of the
Sherriff’s Office’s internal “listserv.”

Doc. 59 at 5.

The press release simply

discussed the general allegations presented in the litigation along with the Sherriff’s
Office’s compensation practices and policies. Doc. 59-1 at 2-3. Plaintiffs’ argument
that Defendant threatened the potential opt-ins by stating that the vehicle policy will
come under review is unpersuasive.

Doc. 55 at 9.

The Court finds nothing

objectionable about the Defendant stating that a certain policy may be reviewed
depending upon the outcome of this litigation. Furthermore, the Court finds nothing
in the remainder of the press release to suggest that Defendant was attempting to
coerce, threaten, or mislead any of the potential opt-in Plaintiffs. To the extent any

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of the statements made by Defendant were misleading, the Court-approved notice to
the putative class members will cure any alleged misstatements.

Bennett v.

Advanced Cable Contractors, Inc., 2012 WL 1600443 at *11 (N.D. Ga. 2012).
The Court finds that Defendant has not done anything improper, and a
protective order in not warranted in this instance. Because Defendant has not done
engaged in any improper behavior, the Court also will deny Plaintiffs’ request for
sanctions against Defendant.
ACCORDINGLY, it is hereby
ORDERED:
Plaintiff’s Emergency Motion for Protective Order and for Sanctions and
Incorporated Memorandum of Law (Doc. 55) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 19th day of August, 2015.

Copies:
Counsel of record

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