Faust et al v. Comcast Cable Communications Managment, LLC

Filing 85

MEMORANDUM. Signed by Judge William M Nickerson on 4/3/13. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOEL FAUST, et al.
v.
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC.
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* Civil Action WMN-10-2336
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MEMORANDUM
Pending before the Court are numerous motions: (1)
Defendant’s Motion for Summary Judgment as to Opt-In Plaintiff
Michael Gallo, ECF No. 68; (2) Defendant’s Motion for Summary
Judgment as to Opt-In Plaintiff Edouard Saint Pierre, ECF No.
82; (3) Defendant’s Motion to Compel Production of Documents
from Opt-In Plaintiffs, ECF No. 78; (4) Defendant’s Motion to
Compel Responses to Defendant’s Interrogatories and Admissions
to Plaintiff Jerrelle Santana, ECF No. 79; (5) Plaintiff’s
Motion for Protective Order Barring or Limiting Depositions of
Additional Unnamed Opt-In Plaintiffs, ECF No. 69; and (6)
Defendant’s Motion for Leave to take Fifteen Additional
Depositions, ECF No. 71.
or unopposed.

The motions are either fully briefed

Upon review of the papers and the applicable law

the Court determines that (1) no hearing is necessary, Local
Rule 105.6, (2) Defendant’s motions to compel and motions for
summary judgment will be granted, and (3) Plaintiff’s motion for

a protective order and Defendant’s motion for leave will be
granted in part.
I. BACKGROUND
This is a collective action brought by Joel Faust and
Marshal Feldman (Named Plaintiffs) on behalf of themselves and
others similarly situated pursuant to the Fair Labor Standards
Act, 29 U.S.C. §§ 201, et seq. (FLSA).

Plaintiffs allege that

Defendant, Comcast Cable Communications Management, LLC
(Comcast), failed to pay them for work performed “off the clock”
while they were employed by Comcast as Customer Account
Executives (CAE).

On November 1, 2011, the Court granted

Plaintiffs’ motion for conditional certification, in part.

The

Court conditionally certified a class under 29 U.S.C. § 216(b)
that was limited to those individuals employed as CAEs at one of
Comcast’s call centers in White Marsh, Maryland, whose duty it
was to perform telephone customer service, and who were required
to log into and out of Comcast’s telephone system.

ECF No. 43.

Following a period of Court-facilitated notice, 56 additional
plaintiffs (Opt-In Plaintiffs) joined this litigation.

In

response to the parties’ competing proposals concerning the
conduct of discovery, see ECF No. 55, on March 27, 2012, the
Court “limit[ed] the parties to 40 hours of deposition time per
side,” but “permit[ted] Defendant to obtain individualized
discovery, in the form of up to 10 interrogatories and up to 10
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requests for admissions from all opt-in Plaintiffs that it does
not depose.”

ECF No. 56.

In addition, the Court permitted

Defendant to “serve up to 10 requests for production on all optin Plaintiffs, whether deposed or not.”

Id.

II. DISCUSSION
A. Comcast’s Motions to Compel
Comcast has filed two motions to compel, neither of which
has been opposed by Plaintiffs.

The first motion, ECF No. 78,

seeks an order compelling 12 Opt-In Plaintiffs to produce
documents in accordance with Comcast’s document requests which
were served on June 15, 2012.

Fed. R. Civ. P. 34(b)(2)(A)

requires a party to respond to a request for documents in
writing within 30 days of being served.

To the extent that

these Opt-In Plaintiffs’ responses are still outstanding, the
Court will grant Comcast’s motion and order that these
Plaintiffs respond in writing as required by Rules 34(b)(2)(B) &
(C) and produce the requested documents consistent with Rule
34(b)(2)(E), within 14 days of the Court’s Order.
Comcast’s second motion, ECF No. 79, seeks an order
compelling Opt-In Plaintiff Jerrelle Santana (Santana) to
respond to interrogatories and requests for admission, both of
which were served on August 6, 2012.

Rule 33(b)(2) requires

parties to respond to interrogatories with answers and any
objections within 30 days of service.
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Therefore, the Court will

grant Comcast’s motion with regard to Santana’s interrogatory
responses and order Santana to respond consistent with Rule 33
within 14 days of the Court’s Order.

Comcast’s motion will be

denied, however, as it relates to Santana’s responses to
Comcast’s requests for admission.

Unlike requests for

production of documents and interrogatories, Rule 37(a)(3) does
not allow a court to compel a response to requests for
admission.

This is because Rule 36(a)(3) provides that “[a]

matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the
matter and signed by the party or its attorney.”
added).

Id. (emphasis

Thus, the Court will deny Comcast’s motion as it

relates to Santana’s failure to respond to Comcast’s requests
for admission.
B. Plaintiffs’ Motion for Protective Order and Comcast’s
Motion for Leave
On November 20, 2012, Plaintiffs filed a motion for a
protective order barring Comcast from taking additional
depositions of Opt-In Plaintiffs.

At the time the motion was

filed, Comcast had already taken the ten depositions it was
allowed under Rule 30(a)(2)(A).

Thus, in opposing Plaintiffs’

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motion, Comcast filed its own motion for leave to take an
additional 15 depositions.1
Three Federal Rules of Civil Procedure play into the
resolution of this dispute.

As noted, Rule 30(a)(2)(A) requires

that a party obtain leave of court if there has not been a
stipulation as to the number of depositions and “the deposition
would result in more than 10 depositions being taken.”

Rule

26(b)(2)(C) provides that “the court must limit the frequency or
extent of

discovery” if it determines that (1) “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;” (2) the party seeking the
discovery has already had “ample opportunity” to obtain the
information; or (3) the burden or expense of the requested
discovery outweighs its likely benefit.

1

Id. (emphasis added).

There is some dispute between the parties as to whether
Comcast’s motion for leave was properly made because it was
incorporated into Comcast’s opposition to Plaintiffs’ motion
seeking a protective order. See ECF No. 73 at 2-3; ECF No. 76
(Plaintiffs’ Opposition to Defendant’s Motion for Leave to File
a Reply Brief); ECF No. 77 at 2-3. The Court finds no defect in
the manner in which Comcast’s request for leave was raised.
Comcast’s request for leave was clearly made in its opposition,
see e.g., ECF No. 71 at 16, and to hold otherwise would be to
elevate form over substance and run counter to the guidance
provided in Fed. R. Civ. P. 1 that the rules of procedure
“should be construed and administered to secure the just,
speedy, and inexpensive administration of every action and
proceeding.” As a result, the Court finds that Comcast’s Motion
for Leave to File a Reply Brief, ECF No. 76, is unnecessary.
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Finally, Rule 26(c)(1) provides that a court “may, for good
cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.”
Plaintiff argues that permitting the extra depositions is
unreasonable given “the relatively straightforward nature of
this case.”

ECF No. 69 (Pls’ Mem.) at 6.

Specifically,

Plaintiffs aver that 10 depositions is a reasonable number in
this case because “all CAEs have identical job duties, are
subject to the same policies, and work under one roof.”

Id.

Plaintiffs appear to be concerned that some of the additional
deponents would forego their claim in order to avoid appearing
at deposition.

Moreover, they argue that permitting more than

10 depositions would defeat the purposes of representative
actions, namely, lowering costs to plaintiffs and efficiently
resolving issues arising from the same alleged activity.

Id. at

7 (quoting Dorsey v. TGT Consulting, 888 F. Supp. 2d 670, 689
(D. Md. 2012) (internal quotation omitted)).
Comcast responds by arguing that Plaintiffs cannot show
that allowing it to take the additional depositions would be
unduly burdensome or prejudicial to Plaintiffs.

It claims that

it made a strategic decision to use its 40 hours of deposition
time in a certain manner and that Plaintiffs cannot complain
about the extra depositions because Comcast revealed its desire
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to take more than ten depositions as early as June 2012, but was
not met with opposition by Plaintiffs until after Comcast took
its tenth deposition.

Finally, Comcast argues that taking the

additional depositions “will produce critical material facts . .
. that will show that this action should not proceed
collectively and will show that that Plaintiffs’ claims are
without merit.”

ECF No. 71 (Def. Opp’n) at 11.

The Court will grant each of the motions, in part.

As an

initial matter, however, the Court believes it necessary to
dispel Comcast’s apparent belief that Plaintiffs engaged in a
bait and switch campaign by failing to seek a protective order
until after the tenth deposition.

See e.g., ECF No. 71 at 15

(“Plaintiffs’ failure to timely object to Comcast’s stated
intention of taking the depositions of more than ten opt-in
Plaintiffs . . .”).

As Plaintiffs point out in their reply, it

was their right to rely on Comcast’s presumed – indeed, expected
– adherence to the rules.

ECF No. 73 at 2.

To the extent that

Comcast intended to take more than 10 depositions, it was
Comcast’s burden to raise that issue with Plaintiffs and if no
agreement was reached, to seek leave of the Court.

Fed. R. Civ.

P. 30(a)(2); Adv. Sterilization Prods. V. Jacob, 190 F.R.D. 284,
286 (D. Mass. 2000) (“a party seeking to take more than ten
depositions must explicitly seek and obtain leave of court

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before that party can commence any depositions in excess of the
ten-deposition limit”) (emphasis in original).
Notwithstanding Plaintiffs’ right to expect Comcast to
adhere to the rules, the Court finds it appropriate to allow
Comcast to take a modest number of additional depositions.
First, courts have allowed defendants to take depositions of
more than ten opt-in plaintiffs where the deposition relates to
whether the individual plaintiffs are similarly situated.

See

Camp v. Lupin Pharms., Inc., No. 3:10CV1403(RNC), 2011 U.S.
Dist. LEXIS 134639, at *2-3 (D. Conn. 2011); Daniel v. Quail
Int’l, Inc., No. 3:07-CV-53 (CDL), 2010 U.S. Dist. LEXIS 294, at
*3-5 (M.D. Ga. 2010).
to do in this case.

That is clearly what Comcast is seeking

ECF No. 71 at 10-14.

The Court, however, will not grant Comcast leave to take
the full 15 depositions that it has requested.

As noted above,

Rule 26(b)(2)(C) provides that a court “must limit the frequency
or extent of discovery” if it determines that “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.” Id. (emphasis added).

Comcast’s

briefing makes clear that it has already collected a substantial
quantity of evidence to support its position on decertification.
See, e.g., ECF No. 71 at 11 (“the deposition testimony of the
opt-in Plaintiffs whom Comcast has deposed to date shows
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distinct and significant differences in the opt-in Plaintiffs’
claims and factual allegations”), 12 (“the deposition testimony
reveals that opt-in Plaintiffs have disparate claims regarding
when the alleged off-the-clock work occurred”); ECF No. 77 at 3,
5-6.

Thus, the Court finds that allowing Comcast to take 15

more depositions would be unreasonably cumulative and
duplicative.

Moreover, the Court finds – as it did in issuing

its previous Order on discovery – that the best way “to balance
the costs of the requested discovery with its likely benefits”
is still to permit Comcast to obtain individualized discovery in
the form of document requests, interrogatories, and requests for
admission from the Opt-In Plaintiffs.2

ECF No. 56 at 2.

Therefore, the Court will permit each side to take three (3)

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In its reply, Comcast argues that leave must be granted because
“depositions are far and away the best method for it to gather
information that will allow it to defend itself on the merits of
Plaintiffs’ claims and to establish that this class should be
decertified” and that the written discovery it has received is
unhelpful because it “lack[s] the detail and variation that
Comcast has obtained when it asks similar questions at
deposition.” ECF No. 77 at 6. That depositions may be a
“better” form of discovery in Comcast’s opinion does not require
the Court to grant Comcast’s request, particularly when it is
also likely to be more expensive than written discovery. The
Court also notes that despite the complaints it now levels
regarding Plaintiffs’ answers to interrogatories, Comcast has
not moved to compel under Fed. R. Civ. P. 37 and Local Rule
104.8.a, on the ground that those answers are insufficient.
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additional depositions beyond the ten allowed under the Rules,
up to the Court’s previously set time limit of 40 hours.3
C. Comcast’s Motions for Summary Judgment
Comcast has moved for summary judgment with respect to two
Opt-In Plaintiffs, Edouard Saint Pierre (Saint Pierre) and
Michael Gallo (Gallo).

Fed. R. Civ. P. 56 provides that summary

judgment is appropriate if the moving party shows “that there is
no genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.”

In making this

determination, the Court must draw all justifiable inferences
from the evidence in favor of the non-moving party.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FLSA requires that employees be compensated at a rate of
“not less than one and one-half times the regular rate” at which
they are employed when they work more than 40 hours in a
workweek.

29 U.S.C. § 207(a)(1).

With regard to Saint Pierre,

it is undisputed4 that he did not work more than 40 hours during
any of the weeks he was employed by Comcast.

Therefore, the

Court will grant Comcast’s motion.

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Because discovery has closed in this matter under the Court’s
scheduling order, the Court will also order that the parties
confer and submit a proposed schedule outlining (1) the amount
of time required to take any additional depositions, and (2) a
proposed briefing schedule on the issue of decertification.
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Comcast’s Motion was not opposed.
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With regard to Gallo, Comcast argues that Gallo’s claim is
time barred.

The limitations period under FLSA is generally two

years unless the alleged violation is willful, in which case it
is three years.

29 U.S.C. § 255(a).

The statute also provides

that an action is commenced on behalf of an opt-in plaintiff
such as Gallo on the date the date his written consent to become
a party plaintiff is filed with the court.

29 U.S.C. § 256.

Gallo filed his consent to join this action on December 21,
2011.

ECF No. 49-1.

Thus, the limitations period for Gallo

extended back to December 21, 2008.

Gallo’s employment with

Comcast terminated on February 6, 2009, and it is undisputed
that between December 21, 2008 and February 6, 2009, Gallo did
not perform more than 40 hours of work in a workweek.
Gallo asks that the Court equitably toll the statute of
limitations from November 1, 2011, the date that the Court
conditionally certified this action as a collective action under
20 U.S.C. 216(b).

Equitable tolling is an unusual remedy that

is applied in two distinct situations: (1) when a plaintiff was
prevented from asserting his claim by wrongful conduct by the
defendant, and (2) where some “extraordinary circumstances
beyond [the] plaintiff[’s] control made it impossible to file
the claims on time.”
(4th Cir. 2000).

Harris v. Hutchinson, 209 F.3d 325, 330

Here, Gallo argues that tolling is warranted

because “the claims of many potential opt-in Plaintiffs,
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including Gallo, were diminished or extinguished outright”
during the time the Court was considering Plaintiffs’ motion for
conditional certification.

ECF No. 70 at 2.

Thus, Gallo’s

argument is not that Comcast prevented him from asserting his
claim, but that the delay between the Named Plaintiffs’ filing
the motion for conditional certification and the Court’s ruling
constituted an “extraordinary circumstance[]” beyond his control
which made it “impossible” for him to file his claims on time.
Harris, 209 F.3d at 330.
Gallo’s argument is not sufficient for the Court to
equitably toll the statute of limitations.

The Fourth Circuit

in Harris emphasized that “the invocation of equity to relieve
the strict application of a statute of limitations must be
guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted statutes.”
F.3d at 330.

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As other courts have noted under similar

circumstances, that would be the result if the statute of
limitations was tolled here.

See Woodward v. FedEx Freight E.,

Inc., 250 F.R.D. 178, 194 (M.D. Pa. 2008) (“Congress knew when
it enacted 29 U.S.C. § 256 that time would lapse between the
filing of the collective action complaint by the named plaintiff
and the filing of written consents by the opt-in plaintiffs, yet
it chose not to provide for tolling of the limitations
period.”); Longcrier v. HL-A Co., Inc., 595 F. Supp. 2d 1218,
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1244 (S.D. Ala. 2008) (“To hold otherwise would be to opine that
equitable tolling should be granted in every § 216(b) case as a
matter of course during the pendency of a conditional class
certification request, thereby transforming this extraordinary
remedy into a routine, automatic one.”).

Moreover, the lapse of

time between filing the motion for conditional certification and
the Court’s ruling cannot be considered an extraordinary
circumstance that requires tolling because, during that time,
Gallo was not prevented from joining this case or from filing
his own lawsuit.

Because the Court will not toll the statute of

limitations and because it is undisputed that Gallo did not work
more than 40 hours in any workweek between December 21, 2008,
and February 6, 2009, the Court will grant Comcast’s motion for
summary judgment.
III. CONCLUSION
For the foregoing reasons, Comcast’s Motion to Compel
Production of Documents From Opt-In Plaintiffs, ECF No. 78, will
be granted; Comcast’s Motion to Compel Responses to Defendant’s
Interrogatories and Admissions to Plaintiff Jerrelle Santana,
ECF No. 79, will be granted, in part; Plaintiffs’ Motion for a
Protective Order Barring or Limiting Depositions of Additional
Unnamed Opt-In Plaintiffs, ECF No. 69, and Comcast’s Motion For
Leave to Take Fifteen Additional Depositions, ECF No. 71, will
be granted, in part; Comcast’s Motion for Summary Judgment as to
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Opt-In Plaintiff Edouard Saint Pierre, ECF No. 82, will be
granted, and; Comcast’s Motion for Summary Judgment as to Opt-In
Plaintiff Michael Gallo, ECF No. 68, will be granted.

A

separate Order will issue.

/s/
William M. Nickerson
Senior United States District Judge
April 3, 2013

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