Williams et al v. King Bee Delivery, LLC et al
MEMORANDUM OPINION & ORDER: (1) IT IS ORDERED that Pla's 73 EMERGENCY MOTION for Corrective Relief Regarding Opt-in Notice is GRANTED IN PART w/respect to telephonic contact for Notice Group members. (2) Pla's 73 EMERGENCY MOT ION for Corrective Relief Regarding Opt-in Notice is DENIED IN PART w/respect to pla's request to contact any other individuals or any member of Notice Group by text. (3) Pla and Dft's SHALL AGREE on a script for the telephone call no later than 4/28/17. (4) All telephone calls made pursuant to this Order SHALL be completed by close of opt-in period. Signed by Judge Joseph M. Hood on 4/26/2017.(GLD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
On behalf of himself & all
others similarly situated, et
KING BEE DELIVERY, LLC, and
BEE LINE COURIER SERVICES,
This matter is before the Court on Plaintiffs’ Emergency
Motion for Corrective Relief Regarding the Opt-In Notice [DE 73].
For the reasons stated below, the Motion will be GRANTED IN PART
and DENIED IN PART.
In its prior Order [DE 70], the Court required the Defendants
to produce contact information, including email addresses and
delivery drivers (the “Notice Group”).
Of the 435 members of the
Notice Group, 266 of those are former delivery drivers, and of
those, Defendants retained email addresses for only 26 former
Plaintiffs now request that they be permitted
to call Defendants’ former delivery drivers who have not responded
to the opt-in notice by April 30, 2017, solely to determine their
correct mailing or email address in order to deliver notice to
those former drivers.
In the alternative, Plaintiffs ask to be
allowed to contact these members of the Notice Group by text
Plaintiffs support their request with an Affidavit from
The Affidavit states that of the 266 notices sent to
former delivery drivers, 37 have been returned at “undeliverable”
as of April 24, 2017 [DE 79-1, ¶5].
The opt-in period in this
matter will expire on May 30, 2017.
District Courts around the country have both granted and
denied similar requests for telephone or text message contact with
potential class members.
E.g., Vasto v. Credico (USA) LLC, 2016
WL 2658172 (S.D.N.Y. May 5, 2016) (permitting text message contact
due to the high turnover in Defendant’s business); But see, e.g.,
Arevalo v. D.J.’s Underground, Inc., 2010 WL 4026112, at *2 (D.
Md. Oct. 13, 2010) (denying Plaintiffs’ request for text message
notification, noting that low opt-in rates are not evidence that
the opt-in notice has not been received).
for notification unless there is a reason to believe that method
Wolfram v. PHH Corp., 2012 WL 6676778 at *4
(S.D.Ohio Dec. 21, 2012).
In this instance, it is clear that for
effective method of notification, as over 13% of the notices have
been returned “undeliverable.”
“There is no ‘one-size-fits-all’
approach to notifying putative class members in lawsuits such as
this. The ultimate goal of the Court is to provide ‘[a]ccurate and
timely notice concerning the pendency of the collective action
promotes judicial economy because it...allows [putative class
members] to pursue their claims in one case where the same issues
of law and fact are already being addressed.’”
Fenley v. Wood
Grp. Mustang, Inc., 170 F. Supp. 3d 1063, 1074 (S.D. Ohio 2016)
(quoting Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214 (S.D.Ohio
Some of the former delivery drivers have not received notice
of this lawsuit by regular mail, and due to the lack of available
email addresses for former employees, email will likely not be an
effective means of notifying all of these members of the Notice
Thus, in the interest of providing adequate notice to the
Notice Group, but avoiding duplicate notice or the appearance that
the Court endorses the plaintiffs’ claims, the Court will permit
notice by telephone to those individuals for whom Plaintiffs
receive the mailed notice returned “undeliverable,” if there is no
email address available for that individual.
If an email address
Telephone contact shall be solely to determine the
individual’s correct mailing or email address in order to deliver
According to Plaintiffs, as of April 24, 2017, this
Plaintiffs may also contact, by telephone, any former delivery
drivers for whom they receive a notice returned “undeliverable”
between the date of this Order and the close of the opt-in period.
The Court agrees with Defendants that mere lack of response to the
notice does not indicate that the individual did not receive the
“undeliverable” and for whom there is no email address available
may be contacted telephonically.
Accordingly, for the reasons stated herein, IT IS ORDERED:
Plaintiffs’ Motion for Corrective Relief Regarding the
Opt-In Notice [DE 73] is GRANTED IN PART with respect to
telephonic contact for the sole purpose of obtaining email or
mailing addresses for Notice Group members who are former
delivery drivers whose mail was returned “undeliverable” and
for whom no email address is available;
Plaintiffs’ Motion for Corrective Relief Regarding the
Opt-In Notice [DE 73] is DENIED IN PART with respect to
telephone or to contact any member of the Notice Group by
Plaintiffs and Defendants SHALL AGREE on a script for
the telephone call no later than April 28, 2017; and
All telephone calls made pursuant to this Order SHALL be
completed by the close of the opt-in period.
This the 26th day of April, 2017.
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