Vargas et al v. Spirit Delivery & Distribution Services, Inc.

Filing 188

District Judge Timothy S. Hillman: ORDER entered granting in part and denying in part 152 Motion to Compel; granting 154 Motion ; granting 164 Motion ; granting 169 Motion ; granting 170 Motion ; granting 174 Motion ; granting 182 Motion for Order (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)

GARRY CIVIL, individually and on
behalf of a class of similarly
situated individuals,
Plaintiffs,

)
)
)
)
)
v.
)
)
)
SPIRIT DELIVERY & DISTRIBUTION )
SERVICES, INC.,
)
Defendant. )
____________________________________)

Civil Action No. 13-12635-TSH

ORDER
March 24, 2017
Hillman, D.J.
Introduction
Gary Civil (“Civil” or “Plaintiff”) 1 has filed suit against Spirit Delivery & Distribution
Services, Inc. (“Spirit” or “Defendant”) on behalf of himself and other similarly situated
individuals alleging claims for violation of the independent contractor provision of the
Massachusetts Wage Act, Mass.Gen.L. ch. 149, §148 (the “MWA”). During the course of this
litigation, Civil became aware that Spirit had been communicating with proposed class members
to obtain releases which would exclude them from the case; in return, Spirit was offering a
$1,000 payment. 2 On July 1, 2016, Civil filed an emergency motion for a protective order

1
This action was originally filed against Spirit by Civil, Ramon E. Vargas and Randy Flambo who joined
in the motion. On August 15, 2016, Vargas and Spirit filed a joint stipulation of dismissal and on February 9, 2017,
Flambo and Spirit filed a joint stipulation of dismissal.
2

By Memorandum of Decision and Order, dated the date hereof, I have granted Civil’s motion for class
action certification.

(Docket No. 133) requesting that the Court: (1) enjoin Spirit from further communications
seeking to obtain alleged settlements from putative class members; (2) invalidate any alleged
settlements obtained as the result of the letters and checks that Spirit had previously distributed;
and (3) order Spirit to produce (a) a copy of all written communications to putative class
members; (b) any purported settlements or releases obtained; (c) a list with the name and contact
information of every putative class member from whom Spirit had obtained a purported
settlement; (d) a list with the names and contact information of every putative class member
from whom Spirit has attempted to obtain a settlement; and (e) a list with the names and contact
information of every member of the putative class. I held a hearing on the motion on July 11,
2016. On July 13, 2016, I granted the motion in so far as I ordered Spirit to cease and desist
sending communications to the proposed class members in any form without prior approval from
this Court.  See Docket Entry No. 148 (“July 13, 2016 Order”).
This Order addresses Plaintiffs’ Motion To Compel Production Of Documents And To
Re-Open Discovery (Docket No. 152). The motion is granted, in part and denied, in part.
Discussion 
In his motion to compel, Civil asserts that since my order enjoining Spirit from
communicating with prospective class members, Spirit’s employees have directly or indirectly
contacted a number of putative class members to obtain releases. Civil requests that Spirit
should be ordered to produce all documents and materials related to communications with class
members and that the Court amend the scheduling order to re-open discovery to determine the
extent of Spirit’s misconduct.3 Civil also requests that the Court amend the scheduling order to

3

Civil has filed multiple motions to supplement the record to include additional allegations of Spirit
directly or indirectly contacting proposed class members after July 13, 2016. Spirit has also filed a motion to
supplement the record regarding the motion to compel. Those motions (Docket Nos. 152,154, 164, 169, 170, 174
and 182) are granted.

2

permit additional discovery to allow him to investigate all communications and circumstances
that are relevant to Spirit’s agreements with putative class members, and to investigate potential
violations of the Court’s July 13, 2016 Order. Spirit asserts that the motion is moot because it
has provided Civil with substantially all of the information he has requested. More specifically,
Spirit has produced copies of all signed releases, cashed or deposited settlement checks, and a
spreadsheet which contains the name and address of each putative class member, and columns
indicating whether the contractor settled. Spirit also represents that it has not sent
communications regarding settlements to putative class members since July 13, 2016. However,
it acknowledges that numerous contractors have contacted it and it has reached voluntary
settlement agreements with some of these contractors.
My rulings on Civil’s various requests are as follows:
1.

Based on Civil’s submissions I do not find that Spirit violated my

July 13, 2016 Order. However, the affidavits filed by some of the proposed class
members suggest that the general intent of the order may have been violated on a
few occasions. I have granted Civil’s motion for class certification and presume
that going forward, Spirit and its counsel understand that once the class has been
certified, all communications with proposed class members regarding this
litigation must be made through class counsel.4 Nevertheless, to be clear, Spirit
management and its counsel shall not initiate any communications with class
members concerning this litigation without Court permission, including
communications regarding previous settlement offers made by Spirit to them.
2.

Civil’s motion to compel Spirit to disclose all documents and

materials related to communications with class members is granted. I find that
the information which Spirit represents that it has already produced is sufficient to

4

  As some of the proposed litigants still work for Spirit, obviously communications with class
members within the ordinary course of business unrelated to the litigation are permitted without obtaining
the Court’s consent. 
3

satisfy Civil’s request and therefore, no further order with regard to this issue is
warranted. Spirit shall, as necessary, supplement the information which it has
provided regarding signed releases, cashed or deposited settlement checks, and
the names and addresses of each putative class member or contractor that has
settled.
3.

Civil has requested the Court amend the Scheduling Order to re-

open discovery to investigate the circumstances of Spirit’s communications with
putative class members to investigate: (1) the “enforceability” of settlement
agreements between Spirit and such class members; and (2) to investigate whether
Spirit should be sanctioned for violation of the Court’s July 13, 2016 Order. I do
not find that Civil has established just cause for re-opening discovery. The
request is denied.
The Court is not going to bar any party from filing any additional motions on the issues
directly or by inference raised in the motion to compel. However, I will suggest that no such
motions should be filed unless the matters raised therein are not only new, but are also both
relevant and material to the claim at issue in this litigation.
Conclusion
Plaintiffs’ Motion To Compel Production Of Documents And To Re-Open Discovery
(Docket No. 152) is granted, in part and denied, in part.
/s/ Timothy S. Hillman_________
TIMOTHY S. HILLMAN
DISTRICT JUDGE

4