BLAIR et al v. PROFESSIONAL TRANSPORTATION, INC. et al

Filing 232

ORDER OVERRULING Defendants' 223 Appeal of Magistrate Judge Decision to District Court. Signed by Judge Richard L. Young on 9/1/2015. (TMD) (Main Document 232 replaced on 9/1/2015) (TMD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
MARCUS E. CRAWFORD1, individually
and on behalf of similarly situated
individuals,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
PROFESSIONAL TRANSPORTATION,
)
INC., and
)
RONALD D. ROMAIN individually and as )
chief executive officer of Professional
)
Transportation, Inc.,
)
)
Defendants.

3:14-cv-00018-RLY-WGH

ORDER ON DEFENDANTS’ OBJECTION TO
MAGISTRATE JUDGE’S ORDER OF JUNE 12, 2015
I. Introduction
Plaintiff, Marcus E. Crawford, individually and on behalf of similarly situated
individuals, brought this collective action against Defendants, Professional
Transportation, Inc. and Ronald D. Romain, for unpaid minimum wages and overtime
allegedly owed to drivers who performed over-the-road service pursuant to the Fair Labor

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On April 17, 2015, Magistrate Judge Hussmann dismissed Plaintiff Denessa V. Blair with
prejudice, and therein ordered that Plaintiff Marcus E. Crawford be substituted as class
representative. Magistrate Judge Hussmann further ordered that the original case caption should
remain intact. (Filing No. 209). Following that Order, the court substituted Crawford for Blair
in the case caption in several documents (Filing Nos. 220, 221, 226, 228), but also retained the
original caption in several documents (Filing Nos. 211, 215, 218, 230). The parties have
understandably expressed confusion as to the proper case caption. In order to avoid further
confusion, the court hereby ORDERS the case caption shall reflect that Crawford is the class
representative, and shall not include Blair.
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Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. This matter now comes before the
court on Defendants’ Objection to the Magistrate Judge’s Order on Plaintiff’s Motion and
Memorandum of Law in Support of the Proposed Case Management Plan. (Filing No.
223). For the reasons set forth below, the court OVERRULES Defendants’ objection.
II. Background
The parties tendered a joint Case Management Plan on April 7, 2015 (Filing No.
203), but left certain matters unresolved, including the scope of discovery. After the
parties submitted extensive briefing regarding whether Defendants should be permitted to
serve individualized discovery-and, if so, what questions could be posed-Magistrate
Judge Hussmann ordered that Defendants were permitted to serve discovery to all
Plaintiffs who had filed opt-in consents in this case. (Filing No. 220). Magistrate Judge
Hussmann considered the Defendants’ proposed discovery questionnaire (along with the
amended questionnaire), and further ordered that Defendants’ questionnaire for the optins could only contain the following provisions from the amended proposal:
1. Do you believe that you are entitled to additional pay for any work week
while you were employed by PTI as an over the road driver?
Yes _____

No _____

If so please attach any and all documentation that you contend supports your
belief.
2. Have you ever filed for bankruptcy? Yes _____

No _____

If yes, please provide the information requested below:

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Date Filed

Name/Location
of Court

Case Number

Were you
granted a
discharge of
debts? If so,
when?

3. Documents
a. Do you have or can you get copies of any documents, such as
calendars, diaries, or journals, that show the hours you worked for PTI
as an over-the-road driver during the period of February 2011 to the
present? Yes _____ No_____ If yes, then attach copies of all such
documents to your answers to this Questionnaire.
b. Do you have or can you get copies of any documents that show the
amount of compensation you were paid by PTI as an over-the-road
driver during the period of February 2011 to the present? Yes _____
No _____ If yes, then attach copies of all such documents to your
answers to this Questionnaire.
c. Do you have or can you get copies of any documents, such as
calendars, diaries, or journals, that show the actual duties you
performed for PTI as an over-the-road driver during any weeks you
believe you worked more than 40 hours per work during the period of
February 2011 to the present? Yes _____ No_____ If yes, then attach
copies of all such documents to your answers to this Questionnaire.
Magistrate Judge Hussmann found that all other questions asked by Defendants in their
proposed questionnaire were unduly burdensome and/or irrelevant. Defendants timely
objected.
III. Legal Standard
Rule 72(a) expressly authorizes a litigant to object to a magistrate judge’s order on
a non-dispositive motion within fourteen days of service. Fed. R. Civ. P. 72(a). The
district court “must consider timely objections and modify or set aside any part of the

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order that is clearly erroneous or is contrary to law.” Id. See 28 U.S.C. § 636(b)(1)(A).
“The clear error standard means that the district court can overturn the magistrate judge’s
ruling only if the district court is left with the definite and firm conviction that a mistake
has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997).
IV. Discussion
Defendants object to Magistrate Judge Hussmann’s order on the basis that the
limited questionnaire does not allow them to learn specifically why the opt-in Plaintiffs
believe they are due additional pay, and whether their allegations in this regard make the
opt-in Plaintiffs similarly situated, which is required under the FLSA. Defendants
contend that such information is both relevant and necessary because they have expressed
an intent to move for decertification. Defendants therefore ask this court to permit
service of their amended questionnaire (Filing No. 217), a more extensive questionnaire
with two attachments, upon all of the opt-ins. Plaintiff retorts that Defendants should not
be permitted to use their proposed questionnaire for various reasons, including that the
information Defendants seek is already in their possession, irrelevant for purposes of this
collective action, and impossible for the opt-ins to know.
As a general rule, the Federal Rules of Civil Procedure allow for “liberal
discovery” to “assist[] in the preparation and trial, or the settlement, of litigated disputes.”
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). Indeed, the Federal Rules of
Civil Procedure provide that litigants are entitled to “obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1). Relevance is then broadly defined as having “any tendency to make a fact more
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or less probable than it would be without the evidence.” Fed. R. Evid. 401.
Notwithstanding those rules, courts are required to limit the frequency or extent of
discovery otherwise allowed if:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome,
or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C).
The question of whether to allow individualized discovery of opt-in plaintiffs in a
29 U.S.C. § 216(b) collective action under the FLSA is not a novel issue to the federal
courts. However, courts lack uniform agreement regarding the disposition of such
disputes. “Some courts have treated opt-in plaintiffs in a collective action as ordinary
party plaintiffs subject to the full range of discovery permitted by the Federal Rules of
Civil Procedure, and have permitted the defendant to seek certain discovery from all optin plaintiffs.” Wellens v. Daiichi Sankyo Inc., No. C-13-00581, 2014 U.S. Dist. LEXIS
177877, at *6-7 (N.D. Cal. Dec. 29, 2014). See e.g., Lloyd v. J.P. Morgan Chase & Co.,
Nos. 11 Civ. 9305, 12 Civ. 2197, 2015 U.S. Dist. LEXIS 35161, at *20-21 (S.D.N.Y.
Mar. 20, 2015) (ordering that the defendants could serve discovery on all 100 opt-in
plaintiffs who did not sign arbitration agreements); Forauer v. Vt. Country Store, Inc.,
No. 5:12-cv-276, 2014 U.S. Dist. LEXIS 79234, at *16-17 (D. Vt. June 11, 2014)
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(authorizing depositions of all twenty-five opt-in plaintiffs); Abubakar v. City of Solano,
No. CIV S-06-2268, 2008 U.S. Dist. LEXIS 17456, at *10 (E.D. Cal. Feb. 22, 2008)
(permitting individualized discovery of all 160 opt-in plaintiffs).
“[Other] courts have limited individualized discovery, reasoning that
individualized discovery would undermine the purpose and usefulness of both class
actions and collective actions, and instead required only a representative sampling of the
opt-in plaintiffs to respond to discovery.” Wellens, 2014 U.S. Dist. LEXIS 177877 at *8.
These courts have determined that “collective actions under the FLSA should be
governed by the same standards as govern discovery in Rule 23 class actions and should
be limited to only class wide and class based discovery.” Smith v. Lowe’s Home Ctrs.,
236 F.R.D. 354, 357 (S.D. Ohio 2006). See e.g., Ross v. Jack Rabbit Servs., LLC, No.
3:14-cv-00044, 2015 U.S. Dist. LEXIS 45603, at *10 (W.D. Ky. Apr. 7, 2015) (limiting
discovery to a representative sample of the 236 opt-in plaintiffs); Strauch v. Computer
Scis. Corp., No. 3:14 CV 956, 2015 U.S. Dist. LEXIS 15756, at *11 (D. Conn. Feb. 10,
2015) (ordering that the defendant could serve discovery on only 40% of the 80 opt-in
plaintiffs when there was potential for the class to grow to 3,000); Perrin v. Papa John’s
Int’l, Inc., No. 4:09-CV-01335, 2014 U.S. Dist. LEXIS 133974, at *14 (E.D. Mo. Sept.
24, 2014) (rejecting the defendants’ request for individualized discovery of nearly 4,000
opt-in plaintiffs).
In this case, Magistrate Judge Hussmann reasonably concluded that a middleground approach was appropriate (i.e., that individualized discovery of all the opt-ins
should be permitted, but only under narrow constraints), and thereby allowed Defendants
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to serve three questions (with subparts) on each opt-in Plaintiff. Magistrate Judge
Hussmann held that Defendants’ other proposed questions for the opt-in Plaintiffs would
be unduly burdensome, see Fed. R. Civ. P. 26(b)(2)(C), and/or irrelevant, see Fed. R. Civ.
P. 26(b)(1). This was not clear error or contrary to law. In fact, Magistrate Judge
Hussmann’s approach is similar to that taken in a recent case in the U.S. District Court
for the Western District of Washington. See Thomas v. Kellogg Co., No. C13-5136, 2014
U.S. Dist. LEXIS 134786 (W.D. Wash. Sept. 24, 2014). In Thomas, the court examined
the divergent paths taken by the federal courts on this issue and concluded that the
defendant’s extensive discovery (which included ten interrogatories, thirteen to fifteen
requests for admissions, and eight document requests) of the approximately 800 opt-in
plaintiffs was “too broad and intrusive.” Id. at *3, *7. The Thomas court recognized that
the defendant intended to move for class decertification on the basis that the opt-ins were
not similarly situated, and consequently ordered that only “limited” and “easily
digestible” discovery on all the opt-ins would be permitted. Id. at *7-8. See also Bonds
v. GMS Mine Repair & Maint., Inc., No. 2:13-cv-1217, 2014 U.S. Dist. LEXIS 164648,
at *6-7 (W.D. Pa. Nov. 25, 2014) (adopting “a third, hybrid-like approach” wherein the
defendant was permitted to serve a five-interrogatory questionnaire on all 161 opt-in
plaintiffs, but twenty or 12% of those opt-ins would also be required to respond to an
additional ten interrogatories and eight requests for production, and be subject to
depositions).
As a general observation, it was reasonable for Magistrate Judge Hussmann to
conclude that requiring all of the approximately 3,000 opt-in Plaintiffs in this case to
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complete Defendants’ proposed questionnaire, which spans at least eighteen pages and
perhaps more if the Plaintiff held more than one over-the-road driver position, would
impose a significant burden on the parties and the judiciary. In the face of such a large
document, it was not clear error for Magistrate Judge Hussmann to require a much more
limited form. Additionally, much of the information requested by Defendants should
already be in their possession. For example, in Attachment A to the questionnaire,
Defendants seek the dates worked for each over-the-road driver position. Yet,
Defendants must know this information, if for no other reason than it would have been
required in order to issue paychecks. Furthermore, to the extent that such information is
relevant, Defendants reasonably should know the branch each driver was located at and
the driver’s supervisor. These are records that are kept in the ordinary course of business.
Question 2 of Defendants’ questionnaire asks about the opt-in Plaintiffs’ criminal
background, but such information is not relevant at this stage of the litigation.
Defendants argue that criminal background is relevant for impeachment purposes, but
this inquiry would be more appropriately directed at the representative Plaintiffs who will
testify at trial. In Question 7, Defendants ask whether a PTI manager or supervisor ever
told the opt-in Plaintiff to not record time actually worked. As Plaintiff rightly notes,
Defendants could more easily obtain this information from another source that is more
convenient and less burdensome, namely its own managers and supervisors.
Under the facts of this case, “Permitting the full scope of discovery authorized by
the Federal Rules of Civil Procedure would undermine the purpose of conditionally
certifying a collective action and would be unreasonably burdensome and wasteful of the
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parties’ and the court’s resources.” Cranney v. Carriage Servs., Inc., No. 2:07-cv-01587,
2008 U.S. Dist. LEXIS 113606, at *5-6 (D. Nev. June 16, 2008). Accordingly, this court
is not “left with the definite and firm conviction that a mistake has been made.” Weeks.,
126 F.3d at 943.
V. Conclusion
For the foregoing reasons, the court finds that Magistrate Judge Hussmann’s order
of June 12, 2015 was not clearly erroneous or contrary to law. Defendants have failed to
meet their burden under Federal Rule of Civil Procedure 72(a). Therefore Defendants’
Objection (Filing No. 223) is OVERULLED.

SO ORDERED this 1st day of September 2015.

__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record

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