Blair et al v. Transam Trucking, Inc.

Filing 110

MEMORANDUM AND ORDER granting 106 Motion to Reopen Discovery and for Extension of Time to Respond to Plaintiffs' Motions for Class Certification. Document requests and interrogatories to be served no later than 11/14/2014. See Order for additional filing deadlines. Signed by District Judge Eric F. Melgren on 10/15/2014. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LARRY BLAIR and
CHARLIE DAVIS,
On behalf of themselves and
all other persons similarly situated,
Plaintiffs,

vs.

Case No. 09-2443-EFM-KGG

TRANSAM TRUCKING, INC.,
Defendant.

MEMORANDUM AND ORDER
Plaintiffs Larry Blair and Charlie Davis, on behalf of themselves and other similarly
situated truck drivers, assert claims against Defendant Transam Trucking for failure to pay
minimum wages under the Fair Labor Standards Act and the Kansas Wage Payment Act.
Plaintiffs seek conditional certification of collective claims under the FLSA and class
certification for their KWPA claims. This matter comes before the Court on Transam Trucking’s
Motion to Reopen Discovery and Extend Time to Respond to Plaintiffs’ Motions for Class
Certification (Doc. 106). Because the Court finds that good cause exists to modify the scheduling
order, the Court grants Transam Trucking’s motion for the limited purpose of allowing discovery
of four new plaintiffs who consented to be party plaintiffs near or after the discovery deadline
and provided declarations in support of Plaintiffs’ motions for class certification.

I. Factual and Procedural Background
In 2009, Plaintiffs Larry Blair and Charlie Davis filed suit on behalf of themselves and all
other persons similarly situated against Defendant Transam Trucking, Inc., a trucking company
with its principal place of business in Kansas. Plaintiffs bring this action as a collective action for
violations of the Fair Labor Standards Act and as a class action for violations of the Kansas
Wage Payment Act. Plaintiffs, truck drivers, allege Transam Trucking failed to pay them
minimum wages. Plaintiffs argue that they have been misclassified as independent contractors.
After a lengthy stay and unsuccessful summary judgment motions, a scheduling order
was issued that set a deadline of June 16, 2014, for all discovery relating to class certification.
Transam Trucking deposed Blair and Davis and received responses to written discovery from
them in May 2014. Three days before the discovery deadline, Plaintiffs filed notice that Reginald
Harris and Rob Hanneken had consented to join Blair and Davis as party plaintiffs. Five other
drivers—James Sturgeon, Patrick Kelly, Ronald Aguillard, Chad Frobos, and Scott Ross—
consented to be party plaintiffs after the discovery deadline with Frobos and Ross added on July
14, 2014.
The next day, Plaintiffs filed separate motions for class certifications under § 216(b) of
the Fair Labor Standards Act and under Federal Rule of Civil Procedure 23 for claims under the
Kansas Wage Payment Act. Attached to separate memorandums in support of the motions are
declarations from Blair and Davis, deposition excerpts from Blair and Davis, and declarations
from Frobos, Hanneken, Ross, and Sturgeon.1 Two weeks later, Transam Trucking filed a motion

1

Plaintiffs’ memorandum of support for the FLSA claims cites a Declaration of Ronald Aguillard, but no
such declaration was attached as an exhibit. Doc. 103, p. 11.

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to reopen discovery and extend the time to respond to Plaintiffs’ motions for class certification,
which is now before the Court.
II. Legal Standard
A scheduling order may be modified only for good cause and with the Court’s consent.2
The decision of whether to reopen discovery is within the sound discretion of the district court.3
III. Analysis
Transam Trucking has asked the Court to reopen discovery for the limited purpose of
allowing discovery of new plaintiffs who agreed to become plaintiffs near or after the discovery
deadline. Specifically, Transam Trucking notes that Plaintiffs submitted declarations from four
of the seven new plaintiffs in their motions for class certification. In addition, Transam Trucking
has moved for an extension of time to respond to Plaintiffs’ motions for class certification.
Plaintiffs oppose the motion, arguing that Transam Trucking has not been prejudiced by the
addition of the new plaintiffs and that the declarations have minimal relevance to the issue of
class certification.
The Court recognizes that the Tenth Circuit has identified the following six factors as
relevant for determining whether a party’s request to reopen discovery should be granted:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the
non-moving party would be prejudiced, 4) whether the moving party was diligent
in obtaining discovery within the guidelines established by the court, 5) the
foreseeability of the need for additional discovery in light of the time allowed for
discovery by the district court, and 6) the likelihood that the discovery will lead to
relevant evidence.4
2

Fed. R. Civ. P. 16(b)(4).

3

Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).

4

Garcia v. Palomino, Inc., 2010 WL 5149280, *1 (D. Kan. Dec. 13, 2010) (citing SIL-FLO, Inc. v. SFHC,
Inc., 917 F.2d 1507, 1514 (10th Cir. 1990).

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After considering these factors, the Court finds that discovery should be reopened.
Plaintiffs oppose the motion, but otherwise the other factors weigh in favor of Transam
Trucking’s request to reopen discovery. First, trial is not imminent as no trial date has been set.
Second, as noted, Plaintiffs oppose the request. Third, Plaintiffs would not be prejudiced by
reopening discovery. Plaintiffs spend much of their response outlining why Transam Trucking is
not prejudiced by the addition of new plaintiffs’ declarations, but the relevant standard only asks
whether the non-moving party would be prejudiced. Plaintiffs do not address how they would be
prejudiced other than characterizing the motion as an attempt to further delay the case. The Court
is mindful of the potential for delay but notes that Transam Trucking requests a limited
timeframe to conduct discovery and respond to the motions for class certification.
Fourth, Transam Trucking has been diligent in obtaining discovery within the guidelines
established by the court. Transam Trucking initiated service of discovery requests to Blair and
Davis in time to receive responses well in advance of the June 16, 2014 discovery deadline. And
Transam Trucking timely filed the motion to reopen discovery two weeks after four of the new
plaintiffs’ declarations were submitted in support of Plaintiffs’ motions for class certification.
Further, Transam Trucking has represented to the Court that it sought consensual discovery from
the first two new plaintiffs as soon as two days after the discovery deadline.
Fifth, Transam Trucking’s need for additional discovery was not foreseeable because five
of the seven new plaintiffs agreed to join this lawsuit after the discovery deadline and the other
two agreed to join three days before the discovery deadline. Finally, Transam Trucking has
sufficiently alleged the likelihood that its discovery requests will lead to evidence relevant to its
argument that class certification is improper. Specifically, Transam Trucking should have the

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same opportunity to serve discovery requests on the new plaintiffs as it had on the two original
named plaintiffs to inquire about the varying degrees of control and supervision alleged by each
driver. Such information may be relevant to its response to Plaintiffs’ motions.
Therefore, the Court finds good cause to modify the scheduling order to reopen discovery
for the limited purpose of allowing discovery of four new plaintiffs—Chad Frobos, Rob
Hanneken, Scott Ross, and James Sturgeon—who provided signed declarations in support of
Plaintiffs’ motions for class certification. The Court permits Transam Trucking the opportunity
to serve document requests and interrogatories on Frobos, Hanneken, Ross, and Sturgeon no later
than November 14, 2014. Responses will be due within 30 days of service. The Court also
permits Transam Trucking to conduct depositions of Frobos, Hannekan, Ross, and Sturgeon at
dates and times to be agreed on by counsel but no later than 30 days after their service of
responses to the document requests and interrogatories. The Court extends Transam Trucking’s
response deadline to a date 21 days after the last of the depositions occurs. Plaintiffs will have 14
days to reply. Finally, the Court tolls the statute of limitations pending the ruling on Plaintiffs’
motions for class certification.
IT IS THEREFORE ORDERED that Transam Trucking’s Motion to Reopen
Discovery and Extend Time to Respond to Plaintiffs’ Motions for Class Certification (Doc. 106)
is hereby GRANTED.
IT IS SO ORDERED.
Dated this 15th day of October, 2014.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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