SCOVIL et al v. FEDEX GROUND PACKAGE SYSTEM INC
Filing
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PRETRIAL DISCOVERY ORDER granting in part and denying in part 59 Motion For Discovery. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WAYNE SCOVIL, et als.,
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Plaintiff,
v.
FEDEX GROUND PACKAGE
SYSTEM INC., d/b/a FEDEX HOME
DELIVERY,
Defendant
1:10-CV-00515-DBH
PRETRIAL DISCOVERY ORDER
Defendant FedEx Ground Package System Inc., d/b/a FedEx Home Delivery, has filed a
motion seeking full discovery against every opt-in plaintiff in this collective action under the Fair
Labor Standards Act, 29 U.S.C. § 216(b) (FLSA). Plaintiffs oppose the motion and propose a far
more restricted scope for discovery directed at the opt-in plaintiffs. The matter arises pursuant to
the Court’s September 29 interim scheduling order, which assigned to Defendant the task of
filing a motion to address the scope of opt-in discovery. (Doc. Nos. 57 & 59.) I now grant-inpart and deny-in-part defendant’s motion.
BACKGROUND
In this action, Plaintiffs seek to hold Defendant liable for unpaid overtime pursuant to
Maine law, 26 M.R.S. § 664, and the federal Fair Labor Standards Act, 29 U.S.C. § 207, and for
unlawful deductions from pay pursuant to Maine law, 26 M.R.S. § 629. They contend that they
and certain other current and former contract delivery drivers for Defendant were entitled to
overtime compensation but were misclassified by Defendant as independent contractors rather
than as employees. They also contend that certain expenses they paid to service their delivery
routes should have been borne by Defendant. They seek to pursue a “collective action” under
the FLSA, 29 U.S.C. § 216(b).
The Court granted Plaintiffs’ motion for conditional certification on September 16, 2011,
thereby allowing notice to be sent to similarly situated workers so they might “opt into” the
collective action. (Decision and Order on Pl.’s Mot. for Conditional Certification, Doc. No. 52.)1
The Court’s certification for purposes of notice is “conditional” because it is understood that,
following discovery, Defendant will contest, and the Court will have to revisit, the question of
whether Plaintiffs, including the opt-in plaintiffs who join, are, in fact, similarly situated for
purposes of maintaining a collective action for unpaid overtime wages. (Id. at 2-3.)
The conditionally certified class consists of delivery drivers who worked for Defendant
within the State of Maine, subsequent to January 2008, and who were classified as independent
contractors, serviced a single route, and serviced that route on a full-time basis in a vehicle
weighing less than 10,001 pounds. The Court conditionally certified that this class is similarly
situated based on affidavit testimony from six representative Plaintiffs demonstrating the
following commonalities, among others: provision of delivery services pursuant to a standard
Operator Agreement; provision of services on a defined route; mandatory use of a privatelyowned truck weighing less than 10,001 pounds; use of prominent FedEx logos on the delivery
trucks; use of FedEx uniforms; daily report to a FedEx terminal and terminal manager; common
daily duties, including mandatory same-day delivery of all loaded packages; and payment
pursuant to common policies and practices. (Id. at 5-6 & nn.7-9.)
The Court ruled that it was premature to conduct an individualized analysis, at the
conditional certification stage, whether Plaintiffs are similarly situated in relation to the multifactor “economic reality” test that governs the merits of the claim for overtime wages. (Id. at 3
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Pending publication. Available at 2011 WL 4347017, 2011 U.S. Dist. Lexis 105043.
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& n.3.) The economic reality test is designed to determine whether a worker classified as an
independent contractor is, in reality, an employee dependent on the business to which he or she
renders service. Speen v. Crown Clothing Corp., 102 F.3d 625, 632 (1st Cir. 1996). The test
calls for consideration of the following: 1) the degree of control exercised by the employer over
the worker; 2) the worker’s opportunity for profit or loss; 3) the worker’s investment in the
business; 4) the degree of skill and independent initiative required to perform the work; 5) the
permanence or duration of the working relationship; and 6) the extent to which the work is an
integral part of the employer’s business. Bolduc v. Nat’l Semiconductor Corp., 35 F. Supp. 2d
106, 112 (D. Me. 1998).
An interim scheduling order of September 29, 2011, gives Defendant until March 1,
2012, to file a motion requesting decertification of the FLSA conditional class and established
the briefing cycle for the instant discovery motion. (Doc. No. 57.) A December 5 conference is
presently scheduled to address the potential need to extend deadlines depending on the number
of opt-in plaintiffs and the projected course of discovery as of that date. (Id. at 2-3.) These
deadlines are not changed by the instant order.
The docket presently reflects that, in response to the court-approved notice, plaintiffs’
counsel has obtained opt-in forms from roughly 14 individuals. (See Doc. Nos. 60, 61, 63, 64,
66, 67.) I conducted a telephone conference on the pending motion on November 14, 2011, in
lieu of the oral argument requested by Defendant. At the conference, counsel represented that
they anticipate an opt-in class of between 30 and 40 individuals by the conclusion of the opt-in
period.
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DISCUSSION
Defendant requests leave to conduct full discovery of every opt-in plaintiff. (Def.’s Mot.
Seeking Individualized Discovery of Opt-In Pls. at 1, Doc. No. 59.) Defendant argues that
discovery is necessary to provide it with the information it needs to support a motion to decertify
the class and that individualized discovery is presumptively valid because the opt-in members of
the collective action are themselves plaintiffs, unlike involuntary class members in a Rule 23
class action. (Id. at 1-2, 6-7.) Defendant wishes to commence immediately the merits discovery
associated with the economic realities test. Defendant maintains that the decertification contest
will make much of this information material because the Court will be required to examine the
plaintiffs’ several “employment settings” and any individualized defenses the Defendant may
have against individual plaintiffs. (Id. at 3-5 (collecting cases allowing for individualized
discovery of opt-in plaintiffs).) Defendant argues that, certification aside, it has a right to
discover whether opt-in plaintiffs have claims that can be substantiated. (Id. at 7.) For example,
Defendant notes that the notice describes full-time delivery route drivers, without specifying that
the FLSA claim requires proof of weekly hours in excess of 40 in order to generate a right to
overtime compensation. (Id. at 7.) Defendant also contends that discovery may exclude certain
opt-in plaintiffs based on their trucks’ gross vehicle weight ratings. (Id. at 8.) Defendant denies
having records capable of answering such a discovery initiative. (Id.) Most critically, says the
Defendant, it must be prepared to address each individual plaintiff’s claim of employee status,
which will necessarily entail “fact-intensive” discovery into the six-factor economic realities test.
(Id. at 9.) Defendant observes that the court-approved notice has already warned the opt-in
plaintiffs that they may be required to answer written questions, produce documents, and sit for
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deposition if they choose to join (id. at 5-6), and Defendant requests leave to pursue all of these
discovery initiatives with each and every plaintiff (id. at 10).
Plaintiffs object that full-fledged discovery against every opt-in plaintiff—including
seven-hour depositions—“would pose an unnecessary burden and would defeat a central purpose
of a representative class action.” (Pl.’s Opposition at 1, Doc. No. 62.) They assert a right to
advance the collective claim through representative testimony and argue that full-fledged
discovery of every opt-in plaintiff would undermine the remedial purpose of the FLSA, would
result in a waste of time and resources, and would discourage potential plaintiffs from joining.
(Id. at 2-6 (collecting cases in which courts restricted the scope of discovery involving opt-in
plaintiffs).) Plaintiffs are skeptical of Defendant’s claimed need for individualized discovery,
contending that Defendants “maintained extensive files on each class member, including
information concerning each driver’s: work history, size and scope of route, deductions taken
from pay, vehicle used, earnings, and, in most cases, number of hours worked.” (Id. at 4.)
Plaintiffs do not seek to foreclose all discovery of the opt-in plaintiffs, however. Instead, they
propose that Defendant “be permitted to provide a questionnaire of no more than 15 questions,
written in plain English and able to be understood by someone without a legal education, to be
signed under the pains and penalties of perjury.” (Id.)
In Reply, Defendant disputes the idea that discovery will be unduly burdensome,
anticipating a class of only 40 opt-in plaintiffs, all but one of whom allegedly reside in Maine.
(Def.’s Reply Mem. at 4, Doc. No. 65.) Defendant also disputes the idea that a class of 40
individuals is large enough to allow for meaningful statistical sampling. (Id. at 6-7.)
The Court has not yet determined what the standard for decertification will be. There is
little circuit-court guidance on this question and no First Circuit precedent. The Court has noted,
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however, that the question at the decertification stage will be whether the collective group of
plaintiffs are “similarly situated” so that “it is appropriate to continue to permit the case to
proceed as a collective action.” (Doc. No. 52 at 2-3 (citing fifth and sixth circuit precedent).)
Persuasive authorities explain that, at the second stage of the inquiry, discovery will be complete,
the Court will have considerably more information upon which to make a factual determination,
and the analysis will be more searching than it was at the notice stage. Comer v. Wal-Mart
Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006). The analysis will likely entail, among other
possible factors: “(1) the disparate factual and employment settings of the individual plaintiffs;
(2) the various defenses available to the defendants with respect to the individual plaintiffs; and
(3) fairness and procedural considerations.” Leuthold v. Destination Am., 224 F.R.D. 462, 467
(N.D. Cal. 2004). Defendants represent that they will additionally tailor their discovery to
address certain of the economic realty factors, including how individuals managed the expenses
associated with their work, the degree of profit realized, and the degree of business investment.
(Def.’s Reply Mem. at 3-4.) Such considerations call for a reasonable degree of individualized
discovery running to every opt-in plaintiff, at least where, as here, the group of putative opt-in
plaintiffs is not especially large. Compare, e.g., Smith v. Lowe’s Home Ctrs., 236 F.R.D. 354,
357-58 (S.D. Ohio 2006) (McCann King, U.S. Mag. J.) (permitting only representative discovery
of 90 opt-in plaintiffs where there were 1,500 opt-in plaintiffs). However, allowing Defendant to
notice every opt-in plaintiff for deposition or to propound onerous document requests and
interrogatories may prove unwieldy, impose excessive burdens on the parties, unfairly dissuade
the opt-in plaintiffs from carrying on, and give rise to additional troubles such as motions for
discovery sanctions, particularly if the number of opt-in plaintiffs grows significantly. See, e.g.,
Adkins v. Mid-American Growers, Inc., 143 F.R.D. 171, 173-75 (N.D. Ill. 1992) (reviewing
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discovery sanctions recommending the dismissal of certain opt-in plaintiffs for failure to respond
to discovery, including deposition notices, and ruling that full-fledged discovery should not have
been permitted in the first place). With these concerns in mind, and in lieu of the oral argument
requested by Defendant, I conducted a telephone conference with the parties to refine the scope
of discovery authorized by this order. The following parameters are placed on the scope of
Defendant’s discovery initiatives directed to the opt-in plaintiffs, without prejudice toward
Defendant’s ability to request further discovery on a showing of particularized need.
A.
Written Discovery
This order does not adopt Plaintiffs’ position that Defendant’s written discovery be
restricted to a specific questionnaire. Defendant may well wish to tailor their requests to the
individual in question and should have the leeway to do so. For each opt-in plaintiff, Defendant
may propound 30 interrogatories, without sub-parts, and one set of requests for production of
documents. Defendant agrees to limit its document requests to 20 requests per opt-in plaintiff.
Past requests on certain plaintiffs have produced, in some cases, burdensome production of a
large volume of receipts and invoices. Defendant agrees to confer with Plaintiffs and to tailor its
future requests for production to curtail the production of receipts and invoices. Defendant will
propound the foregoing written discovery by the Thanksgiving holiday.
B.
Depositions
Defendant’s request for leave to depose all of the opt-in plaintiffs is denied at this time,
without prejudice to Defendant’s ability to request leave to conduct additional depositions of
specific opt-in plaintiffs upon completion of the written discovery initiatives outlined above.
Pending those developments, Defendant remains limited to the 10 depositions authorized in the
June 6, 2011, interim scheduling order (Doc. No. 27).
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CONCLUSION
Defendant’s Motion Seeking Individualized Discovery of Opt-In Plaintiffs is GRANTED
IN PART and DENIED IN PART, as outlined above.
CERTIFICATE
Any objections to this Order shall be filed in accordance with Fed.R.Civ.P. 72.
So Ordered.
November 14, 2011
/s/ Margaret J. Kravchuk
U.S. Magistrate Judge
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