Bertroche v. Mercy Physican Associates, Inc

Filing 41

ORDER granting in part and denying in part 14 Motion to Certify Class and Request for Oral Argument filed by Sharon Bertroche as amended by 39 Supplement. Any potential plaintiff who wishes to join this action must file her Consent form no later than 11/9/2018. Add Parties Deadline due by 11/9/2018. Amended Pleadings due by 11/30/2018. Plaintiffs Expert Witnesses due by 12/28/2018. Defendants Expert Witnesses due by 3/1/2019. Plaintiffs Rebuttal Experts due by 4/1/2019. Discovery due by 5/6/2019. Motions due by 6/6/2019. Trial Ready Deadline 11/4/2019. Signed by Judge CJ Williams on 9/20/2018. (Attachments: # 1 Appendix) (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
SHARON BERTROCHE, M.D.,
Plaintiff,

No. 18-cv-59-CJW
ORDER

vs.
MERCY PHYSICIAN ASSOCIATES,
INC.,
Defendant.
____________________
I.

BACKGROUND

This matter is before the Court on Sharon Bertroche, M.D.’s (“plaintiff”) Motion
for Conditional Class 1 Certification and Court Authorized Notice. (Doc. 14). The Court
previously ruled on the instant motion in part. (See Doc. 38). In the prior Order, the
Court conditionally certified the collective action but reserved “ruling on the portion of
plaintiff’s motion concerning the form in which notice is to be provided to potential
plaintiffs” of the instant case. (Doc. 38, at 9). In the Court’s prior Order, the Court
granted defendant leave to submit “its own versions of the notice, consent form, and
language appearing or not to appear on the outside of the envelope containing the
documents” to be mailed to potential plaintiffs. (Id.). The Court also granted leave for
defendant to file a brief in support of the proposed notice, consent form, and envelope

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The Court will construe plaintiff’s motion as a motion for conditional certification of a collective
action. The Court’s reasoning for construing plaintiff’s motion as such is set forth more fully in
the Court’s prior Order on the instant motion, which Order appears at Docket Number 38.
Specifically, the discussion appears in footnote one on page one.

language. (Id.).
Although defendant did not submit its own materials to the Court, plaintiff
submitted a Revised Proposed Notice and Consent Form. (See Docs 39; 39-1). After
plaintiff filed her revised documents, defendant filed its Response to Plaintiff’s Proposed
Notice.

(Doc. 40).

In defendant’s response, defendant explains the parties’

communications since the Court’s prior ruling:
[T]he parties have actively communicated with each other in a joint effort
to narrow or resolve disputes. On September 12, 2018, Plaintiff filed the
results of those negotiations with the Court, and submitted a revised
proposed notice, consent form, and envelope language for this Court’s
approval.
Subject to Defendant’s prior objections to conditional
certification, and without waiving any right to request decertification or
otherwise expressing a position on the merits of the case, Defendant does
not object to the Court approving Plaintiff’s revised notice, consent form,
and notice envelope language. Defendant considers Plaintiff’s prior notices
to be withdrawn or superseded, which moots further briefing on the subject.
(Id., at 1).
II.

APPLICABLE LAW

The Court has discretion to facilitate notice of the instant case to potential
plaintiffs.

Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989).

In

facilitating such notice, the Court has “the requisite procedural authority to manage the
process of joining multiple parties in a manner that is orderly, sensible, and not otherwise
contrary to statutory commands or the provisions of the Federal Rules of Civil
Procedure.” Id. at 170. Further, “the [C]ourt has a managerial responsibility to oversee
the joinder of additional parties to assure that the task is accomplished in an efficient and
proper way.” Id. at 170-71. United States Supreme Court precedent and Federal Rule
of Civil Procedure 16(b) provide that the Court may limit the time for pretrial steps,
including joinder of additional parties. Id. at 173.

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III.
A.

DISCUSSION

Notice and Consent Form

The Court approves plaintiff’s Revised Proposed Notice (Doc. 39-1, at 1-3) with
the caveat that plaintiff add the following text where indicated: 2
The Court has conditionally recognized a group of individuals who
may be eligible to join and participate in this action as a plaintiff. You have
been identified, as a female Family Practice Physician employed by MPA
during the relevant time period, as one of the individuals who may be
eligible to join this action and potentially be entitled to compensation. To
join this action and become a part of the claim against MPA, you must “optin,” or inform the court that you wish to take part in the lawsuit. You are
not automatically included in the lawsuit. “Opting-in” to the lawsuit is not
a guarantee that you will ultimately receive compensation.
Additionally, plaintiff is directed to provide instructions on how to file the Consent form
directly with the Court.

Specifically, plaintiff is directed to include the following

instructions on both the Notice and the Consent form immediately following the provision
of the “Sherinian & Hasso Law Firm” address:
If you choose to file the Consent Form on your own behalf, you may do so
by either emailing the completed form to: [e-mail], or
by mailing the form to:
Clerk’s Office
th
111 7 Avenue SE, Box 21
Cedar Rapids, Iowa 52401
Plaintiff is further directed to date each Notice with the date the Notice is mailed.
The date is to be indicated in the location where “[DATE]” appears on the attached
Appendix. 3
2

The Court has italicized the additional language for ease of reference. Plaintiff is directed,
however, to include the Court’s added language in the same typeface as the surrounding text.

3

Any highlighting in the attached Appendix is for ease of reference only and is not to be included
in the documents mailed to potential plaintiffs.

3

Any potential plaintiff who wishes to join this action must file her Consent form
no later than November 9, 2018. In each of the four locations in the proposed Notice,
and in the single location on the proposed Consent form, (see Doc. 39-1), where “[Insert
Date that is 60 days from the date of notice approval]” appears, plaintiff is directed to
substitute “November 9, 2018.” 4 The Court takes no position on the date by which
Consent forms must be received by plaintiff’s counsel in order for counsel to timely file
the forms with the Court. Plaintiff is, however, directed to substitute some date in place
of the single location on each of the proposed Notice and proposed Consent form where
“[Insert Date that is 58 days from the date of notice approval]” appears. (See id., at 2,
4). Finally, following the sentence “If your signed Consent Form is not filed with this
Court by November 9, 2018 [sic] you will lose the right to participate in any recovery
obtained against MPA in this lawsuit,” (id., at 2), plaintiff is directed to add the following
sentence: “The Consent Form must be received by the Court no later than November 9,
2018, to be considered timely.” 5
The Court’s modifications to the proposed Notice and proposed Consent are
incorporated into the attached Appendix. Aside from the modifications outlined above
and set forth in the attached Appendix, the Court approves the proposed Notice and
proposed Consent form. The Court approves of the following language appearing on the
outside of the envelopes containing the Notices and Consent forms: “Court Authorized
Notice of Wage Discrimination Lawsuit – Deadline to Join.” The language on the outside
of the envelopes is to appear in 12-point Times New Roman or CG Times font in regular
typeface, and is to contain only black lettering.

4

The date “November 9, 2018,” may appear in bold typeface.

5

“Received,” as used here, is to be italicized in the Notice.

4

The portion of plaintiff’s motion (Doc. 14, as amended by Doc. 39) upon which
the Court did not previously rule is therefore granted in part and denied in part. To
the extent plaintiff’s motion as to the original Notice and Consent Form is outstanding
(see Docs. 14-3, 14-4), such motion is denied as moot. The Court has previously ruled
on defendant’s objections to certification of the collective action and, therefore, sees no
need to address such objections here. (See Doc. 38).
B.

Scheduling Order

The Court previously entered a scheduling order setting August 17, 2018, as the
deadline to add parties to this suit.

(Doc. 24).

Plaintiff’s motion for conditional

certification is premised on the notion that, upon notification of the instant suit, potential
plaintiffs will wish to join as plaintiffs. (See generally Doc. 38, at 5 (“Plaintiff has
satisfied her burden of showing that at least one other potential plaintiff exists who would
be interested in joining the lawsuit.”)). Thus, inherent in plaintiff’s motion is a request
that the deadline for adding parties be extended, if the notification and joinder procedures
cannot be completed by the current deadline to add parties.
As the deadline for adding parties has already passed, the scheduling order must
be amended if the Court’s approval of the Notice and Consent form is to have any
legitimate effect. The Court finds that such necessity is sufficient to satisfy the “good
cause” standard for modifying the scheduling order. 6 See FED. R. CIV. P. 16(b)(4);
Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins. Co., 590 F. Supp.2d 1093, 1098
(N.D. Iowa 2008) (internal citations and quotation marks omitted). The Court further
finds it appropriate to extend the other pending deadlines. The new deadlines governing
this case are as follows:
Add Parties:

November 9, 2018

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The Court notes that although the deadline for adding parties has already passed, plaintiff’s
motion was filed prior to the expiration of the deadline to add parties. (See Docs. 14, 24). As
a result, the higher “excusable neglect” standard does not govern here. FED. R. CIV. P. 6(b)(1).

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Amended Pleadings:
Plaintiffs Expert Witnesses:
Defendant’s Expert Witnesses:
Plaintiff’s Rebuttal Experts:
Discovery:
Dispositive Motions:
Trial Ready:
Trial:

November 30, 2018
December 28, 2018
March 1, 2019
April 1, 2019
May 6, 2019
June 6, 2019
November 4, 2019
November 4, 2019

The parties should consider both the trial date and the dispositive motions deadline firm.
IV.

CONCLUSION

For the aforementioned reasons, the portion of plaintiff’s motion (Doc. 14, as
amended by Doc. 39) upon which the Court did not previously rule is granted in part
and denied in part. To the extent plaintiff’s motion as to the original Notice and Consent
Form is outstanding (see Docs. 14-3, 14-4), such motion is denied as moot. The
scheduling order is modified as set forth above.
IT IS SO ORDERED this 20th day of September, 2018.

__________________________________
C.J. Williams
United States District Judge
Northern District of Iowa

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