Lee et al v. GAB Telecom, Incorporated
Filing
51
ORDER GRANTING PLAINTIFFS MOTION FOR SUPPLEMENTAL CLASS NOTICE[#35], DENYING PLAINTIFFS MOTION FOR SANCTIONS [#35], DENYINGDEFENDANTS COUNTER-MOTION TO PROHIBIT OPT-INS FROM JOINING CASE[#39], DENYING DEFENDANTS MOTION FOR REMOVAL OF INTERNET OROTHER POSTINGS [#39], GRANTING IN PART AND DENYING IN PARTDEFENDANTS MOTION TO COMPEL RESPONSES [#39], FINDING DEFENDANTSMOTION TO EXTEND DISCOVERY MOOT [#39], FINDING DEFENDANTSMOTION TO QUASH AND LIMIT DISCOVERY MOOT [#39], AND FINDINGPLAINTIFFS MOTION TO PERMIT LATE-FILED OPT-IN NOTICES MOOT [#45]. Signed by District Judge Gershwin A. Drain. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HORACE LEE,
DESHON TAYLOR, and all
other similarly situated,
Plaintiffs,
Case No. 12-cv-14104
Honorable Gershwin A. Drain
v.
GAB TELECOM, INC.,
Defendant.
_____________________________________/
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUPPLEMENTAL CLASS NOTICE
[#35], DENYING PLAINTIFFS’ MOTION FOR SANCTIONS [#35], DENYING
DEFENDANT’S COUNTER-MOTION TO PROHIBIT OPT-INS FROM JOINING CASE
[#39], DENYING DEFENDANT’S MOTION FOR REMOVAL OF INTERNET OR
OTHER POSTINGS [#39], GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO COMPEL RESPONSES [#39], FINDING DEFENDANT’S
MOTION TO EXTEND DISCOVERY MOOT [#39], FINDING DEFENDANT’S
MOTION TO QUASH AND LIMIT DISCOVERY MOOT [#39], AND FINDING
PLAINTIFFS’ MOTION TO PERMIT LATE-FILED OPT-IN NOTICES MOOT [#45]
I.
INTRODUCTION
Plaintiffs filed the instant action pursuant to the Fair Labor Standards Act, 29 U.S.C. §
201 et seq. (“FLSA”) claiming that Defendant, GAB Telecom, Inc., violated the FLSA by
classifying Plaintiffs as exempt under the Act in order to deny Plaintiffs the statutory overtime
wages required by the FLSA. Defendant maintains that the overtime provisions of the FLSA do
not apply to Plaintiffs because they were employed as independent contractors rather than hourly
employees and are exempt from the overtime requirements.
Presently before the Court are Plaintiffs’ Motion for Supplemental Class Notice and for
Sanctions, filed on June 19, 2013, Plaintiffs’ Motion to Permit Late-Filed Opt-in Notices filed on
July 15, 2013 and Defendant’s Motion to Prohibit Opt-ins from Joining Case, to Remove Internet
and Other Postings, to Compel Responses, to Extend Discovery, and to Quash and Limit
Discovery, filed on June 27, 2013. For the reasons that follow, the Court GRANTS Plaintiffs’
Motion for Supplemental Class Notice, DENIES Plaintiffs’ Motion for Sanctions, Defendant’s
Motion to Prohibit Opt-ins from Joining Case, and Defendant’s Motion to Remove Internet and
Other Postings, GRANTS IN PART AND DENIES IN PART Defendant’s Motion to Compel
Responses, and finds Defendant’s Motion to Extend Discovery, Defendant’s Motion to Quash
and Limit Discovery, and Plaintiffs’ Motion to Permit Late-Filed Opt-in Notices MOOT.
II.
PROCEDURAL AND FACTUAL HISTORY
Plaintiffs are a group of cable installers who worked for Defendant, GAB Telecom, Inc.
and were classified as independent contractors. Plaintiffs filed this action on September 14, 2012
and requested class certification. On April 16, 2013, this Court granted conditional certification
to the Plaintiffs and allowed for an opt-in period where others who are similarly situated may
join the action. After the order granting conditional certification, but before the opt-in period was
to begin, Plaintiffs’ counsel advertised the case on their website to identify potential opt-ins.
During the opt-in period, Defendant served opt-in Plaintiffs directly with written discovery.
Plaintiffs filed the present Motion on June 19, 2013, alleging that Defendant’s service of
written discovery directly to opt-in Plaintiffs was a violation of Michigan ethics rules. Plaintiffs
also requested additional notice be sent to potential opt-ins and more time be allowed for opt-ins
to join the suit. Defendant asserts that it was unaware that the lead counsel was representing the
opt-ins, and thus there was no violation of the Michigan ethics rules. Defendant also filed the
present counter-Motion on June 27, 2013, alleging that the postings on Plaintiffs’ counsel’s
website were an improper solicitation outside of the opt-in time period and that Plaintiffs did not
sufficiently answer its discovery requests. Defendant requests that the opt-in Plaintiffs be
excluded from the suit and the postings be removed from the website. Additionally, Defendant
requests that Plaintiffs be compelled to answer its discovery requests and asks for an extension of
the discovery deadline. Finally, if the Court limits Defendant’s discovery from the opt-in
Plaintiffs to a representative sample, Defendant asks that Plaintiffs’ discovery requests be
quashed and limited.
III.
ANALYSIS
A.
Plaintiffs’ Motion for Supplemental Class Notice and for Sanctions
Plaintiffs request that the Court authorize a second judicial notice clarifying the right to
opt in to the case and request an additional thirty days during which potential plaintiffs may opt
into the suit. Plaintiffs contend that by sending the interrogatories directly to the opt-in class
members instead of to their counsel, Defendant acted in a way that deterred potential opt-ins
from entering the lawsuit. Defendant asserts that it was unaware that the lead counsel was
representing the opt-in parties, as lead counsel for Plaintiffs had not filed an appearance for those
opt-ins.
Michigan Rules of Professional Conduct 4.2 provides that a party may not “communicate
about the subject of the representation with a party whom the lawyer knows to be represented in
the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so.” Moreover, in collective action suits, plaintiffs’ counsel generally
represents opt-in participants. Fisher v. Mich. Bell Tel. Co., 665 F. Supp. 2d 819, 829 (E.D.
Mich. 2009). Defendant should have known that Plaintiffs’ counsel was representing the opt-in
Plaintiffs, thus the interrogatories were improperly served.
Because Defendant improperly served interrogatories directly on the opt-in participants,
the Court finds that the interrogatories may have had a chilling effect on potential opt-ins. This
concern is heightened by the nature of the interrogatories themselves, which included questions
requiring legal conclusions that would be impossible for a lay person to answer.1 Many of these
questions also referenced specific portions of the complaint, which opt-ins could not access.
Because of the potential chilling effect these interrogatories may have had on potential
opt-in participants, the Court finds that an additional time for opt-ins to join the suit is
appropriate. The opt-in period will be extended until the end of discovery on August 19, 2013.
This will give Plaintiffs’ counsel time to contact potential participants and reassure them that
they will be represented. Therefore, the Court grants Plaintiff’s Motion for Supplemental Class
Notice.
Plaintiffs also request that the Court quash the interrogatories sent to the opt-in
participants and that the Court limit the scope of discovery to twenty percent of the Plaintiffs via
a representative sample. The Court has broad discretion to limit the scope of discovery if it is
“unreasonably cumulative or duplicative” or if “the burden or expense of proposed discovery
outweighs its likely benefit.” FED. R. CIV. P. 26(b)(2)(C).
While the Court agrees that the interrogatories should be quashed because of the
improper service, there is not a compelling reason to restrict discovery as Plaintiffs have
suggested. As there are less than fifty Plaintiffs thus far in the suit, allowing discovery for each
opt-in will not unnecessarily increase the cost of litigation. Plaintiffs point to a few cases where
discovery was limited in class action suits to a representative sample of the plaintiffs. However,
each of these cases had a substantially higher number of class members. See Gentrup v. Renovo
Svc., LLC, 2010 U.S. Dist. Lexis 143203 (S.D. Ohio Aug. 17, 2010) (limiting discovery of over
1
Many of the questions are modeled like this one: “Admit that Plaintiffs are without facts,
witnesses or exhibits to substantiate their claims in paragraph 13 of the Statement of Facts of the
complaint.” See Dkt. No. 35 Ex. A, 8.
200 plaintiffs); Cranney v. Carriage Services, Inc., 2008 U.S. Dist. Lexis 113606 (D. Nev. 2008)
(limiting scope of discovery to ten percent of the nearly 300 opt-ins); McGrath v. City of
Philadelphia, 1994 U.S. Dist. Lexis 1495 (E.D. Pa. 1994) (limiting scope of discovery regarding
over 4100 opt-in plaintiffs). In the present case, there are fewer than fifty Plaintiffs total. At this
point in time, there is no need to limit individualized discovery. However, as the opt-in period
will be extended until August 19 following supplemental notice, the Court is willing to hear this
issue again at the close of that period.
Finally, Plaintiffs argue that the Court should sanction Defendant for violating the
Michigan Rules of Professional Conduct. However, correspondence between the two parties
shows that there may have been some confusion as to whether lead Plaintiffs’ counsel was
representing the opt-in participants. Therefore, while the interrogatories will be quashed, the
Court will not sanction Defendant for this action. Plaintiffs’ Motion for Sanctions is denied.
B.
Defendant’s Motion to Prohibit Opt-ins from Joining Case and for Removal of
Postings
Defendant argues that the opt-in Plaintiffs should not be allowed to participate in the
lawsuit because lead Plaintiffs’ counsel improperly solicited potential class members on their
website prior to the allotted time period. Plaintiffs’ counsel posted on their website that they
would be looking for people to opt-in to the lawsuit after the conditional class certification was
granted but before their allotted solicitation period. Additionally, Defendant argues that the
postings should be removed to avoid prejudice against Defendant by allowing more opt-ins into
the lawsuit.
While solicitation outside of the allotted time period is improper under the Michigan
Rules of Professional Conduct, the State Bar of Michigan Standing Committee on Professional
and Judicial Ethics ruled that posting on one’s own website is not solicitation under Michigan
Rules of Professional Conduct 7.3. MI Eth. Op. RI-276 (Mich. Prof. Jud. Eth.), 1996 WL
909975. The Committee held that since postings on one’s own website are not targeted to
individuals and cannot be accessed without voluntarily visiting the firm’s website, Rule 7.3 is not
violated. Id. Because the post in question was on Plaintiffs’ counsel’s own website, there was no
improper solicitation. Thus, the Court sees no need to either order the removal of the postings in
question or to prohibit the opt-in participants from joining the conditional class. Therefore, both
Motions are denied.
C.
Defendant’s Motion to Compel Responses to Discovery from Lead Plaintiffs and
Opt-ins.
Defendant next argues that Plaintiffs have not completely and accurately answered its
exhaustive and wide-reaching interrogatory, alleging, inter alia, that Plaintiffs have not provided
a calculation for damages thus far. Plaintiffs contend that many of the questions were not
discoverable; however, they have answered the questions to the best of their ability, and much of
the information that Defendant is trying to obtain is in documentation that Defendant already has
in its possession. Moreover, most, if not all of the opt-ins have not answered the interrogatory
served on them individually. Since the Court has already decided that the interrogatories were
improperly served onto the opt-in participants directly and should be quashed, Defendant’s
Motion is denied with respect to the opt-in Plaintiffs.
The Federal Rules of Civil Procedure allows for a broad scope of discovery. Lewis v.
ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Rule 26(b)(1) allows parties to “obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense…
if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
FED. R. CIV. P. 26(b)(1).
After careful examination of the interrogatory and lead Plaintiffs’ responses, the Court
has decided that most of the answers were satisfactorily answered by lead Plaintiffs. Defendant
claims that Plaintiffs failed to sufficiently answer numerous questions requiring Plaintiffs to
identify specific witnesses and “produce factual support” for numerous assertions. For each of
these questions, Plaintiffs provide potential witnesses and state that they have given Defendant
all of the documents under their control. Moreover, Plaintiffs have provided Defendant with a
witness list. The Court finds that these responses are sufficient.
Two of Defendant’s requests are granted. Pursuant to Rule 26(a)(1)(A)(iii), Plaintiffs are
required to disclose a damages calculation. FED. R. CIV. P. 26(a)(1)(iii). Additionally, in a
January 25, 2013 Scheduling Order, the Court required witness lists be filed by June 7, 2013, so
Plaintiffs must produce a list of expert witnesses if not produced already. Therefore, Plaintiffs
must provide Defendant with a calculation of damages and a witness list no later than two weeks
from the issue of this order.
For the reasons above, the Court grants in part and denies in part Defendant’s Motion to
Compel Responses.
D.
Defendant’s Motion to Extend Discovery and to Quash and Limit Discovery by Opt-
in Plaintiffs
Defendant lastly requests that the Court grant Defendant only additional time for
discovery because of Plaintiffs’ evasive responses to its discovery requests. Without going into
the merits of this Motion, the Court finds this request moot as it has already extended the
discovery deadline to August 19.
Defendant also requests that the Court quash discovery requests and limit discovery by
opt-in Plaintiffs if the Court limited Defendant’s individualized discovery of those Plaintiffs.
Because the Court did not limit Defendant’s discovery, the Court finds this Motion moot.
D.
Plaintiffs Motion to Permit Late-Filed Opt-in Notices
Finally, Plaintiffs’ Motion to Permit Late-Filed Opt-in Notices is moot as this Order will
extend the opt-in period to August 19.
IV.
CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiffs’ Motion for Supplemental
Class Notice [#35], DENIES Plaintiffs’ Motion for Sanctions and Defendant’s Motions to
Prohibit Opt-ins from Participating and for Removal of Postings [#39], GRANTS IN PART
AND DENIES IN PART Defendant’s Motion to Compel Responses [#39], and finds
Defendant’s Motion to Extend Discovery and to Quash and Limit Discovery [#39] and Plaintiff’s
Motion to Permit Late-Filed Opt-in Notices [#45] MOOT.
SO ORDERED.
Dated: August 8, 2013
/s/ Gershwin A. Drain____________
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
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