Lindsay et al v. Clear Wireless LLC et al
Filing
145
ORDER Overruling #119 and #121 ORDER RE: APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge; Overruling #129 ORDER RE: APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge (Written Opinion). Signed by Senior Judge David S. Doty on 3/3/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-834(DSD/FLN)
Kenneth Lindsay and Jesse Owens
individually and on behalf of
other similarly situated individuals,
Plaintiffs,
ORDER
v.
Clear Wireless LLC and
Workforce Logic LLC, d/b/a
Workforce Logic, a Zero
Chaos Company,
Defendants.
Eric D. Satre, Esq., Jarvis C. Jones, Esq. and Jones,
Satre & Weimer PLLC, 7900 Xerxes Avenue South, Suite 820,
Bloomington, MN 55431, counsel for plaintiffs.
Kerry L. Middleton, Esq., Nilor Ray, Esq., Jeffrey A.
Timmerman, Esq. Rhiannon C. Beckendorf, Esq. and Littler
Mendelson, PC, 80 South Eighth Street, Suite 1300,
Minneapolis, MN 55402; Daniel R. Hall, Esq. Mary L.
Knoblauch, Esq. and Anthony, Ostlund, Baer & Louwagie PA,
90 South Seventh Street, Suite 3600, Minneapolis, MN
55402 and Joyce A. Cox, Esq. and Baker & Hostetler LLP,
200 South Orange Avenue, Suite 300 Sun Trust Center,
Orlando, FL 32801, counsel for defendants.
This
matter
is
before
the
court
upon
the
objections by
plaintiffs and defendants to two orders issued on January 3, 2014,
by Chief Magistrate Judge Arthur J. Boylan. The orders (1) granted
in part plaintiffs’ motion to compel discovery and (2) granted
plaintiffs’
motions
for
conditional
certification,
for
identification of similarly situated employees and for distribution
of written judicial notice to the putative class.
Based on a
review of the file, record and proceedings herein, and for the
following reasons, the court denies the objections.
BACKGROUND
This discovery and conditional certification dispute arises
out of the employment of plaintiffs Kenneth Lindsay and Jesse Owens
(collectively, plaintiffs) by defendants Clear Wireless LLC (Clear
Wireless)
and
defendants).
Workforce
Logic
LLC
(Workforce)
(collectively,
Plaintiffs filed this action individually and on
behalf of similarly-situated individuals on April 9, 2013, alleging
claims under the Fair Labor Standards Act (FLSA).
Plaintiffs allege that defendants failed to comply with the
FLSA’s minimum wage and overtime wage provisions. Plaintiffs moved
(1) to compel discovery, seeking in part to shift to defendants the
cost of producing plaintiffs’ work-related emails and (2) to
conditionally
identification
certify
of
their
FLSA
similarly-situated
collective
employees
notice of the action to potential claimants.
action,
and
compel
distribute
The magistrate judge
issued contemporaneous orders, granting in part the motion to
compel discovery — though denying the request to shift discovery
costs
—
and
granting
plaintiffs’
2
motion
for
conditional
certification, identification of similarly-situated employees and
distribution of notice.
Both parties object.1
DISCUSSION
I.
Motion to Compel Discovery
A.
Standard of Review
The district court will modify or set aside a magistrate
judge’s order on a nondispositive issue only if it is clearly
erroneous or contrary to law.
28 U.S.C. § 636(b)(1)(A); Fed. R.
Civ. P. 72(a); D. Minn. L.R. 72.2(a).
deferential” standard.
This is an “extremely
Reko v. Creative Promotions, Inc., 70 F.
Supp. 2d 1005, 1007 (D. Minn. 1999).
“A finding is clearly
erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
Chakales
v. Comm’r of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996)
(citations and internal quotation marks omitted).
“A decision is
contrary to law when it fails to apply or misapplies relevant
1
Defendants also moved to stay the notice portion of the
magistrate judge’s order pending a ruling on their objection.
Magistrate Judge Franklin L. Noel, assigned the case due to the
retirement of Chief Magistrate Judge Boylan, denied the motion and
ordered that notice be distributed to collective class members.
ECF Nos. 117, 134.
Further, Clear Wireless belatedly sought leave to exceed the
word limit applicable to its objections. ECF No. 127. Although
the court does not encourage such an oversight, plaintiffs have not
claimed to have suffered any prejudice and the court will consider
Clear Wireless’s submissions as filed.
3
statutes, case law or rules of procedure.”
Knutson v. Blue Cross
& Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008)
(citation and internal quotation marks omitted).
“Discovery-related
motions
are
nondispositive
motions.”
Ackerman v. PNC Bank, Nat’l Ass’n, No. 12-cv-0042, 2013 WL 3124509,
at *2 (D. Minn. June 19, 2013) (citation omitted).
Thus, review of
a magistrate judge’s order on a discovery matter is subject to
deferential review in the district court.
B.
Id.
Objection to Discovery Ruling
Parties to a dispute may discover “any nonprivileged matter
that is relevant to any party’s claim or defense.”
26(b)(1).
Fed. R. Civ. P.
Under the rules of discovery, “the presumption is that
the responding party must bear the expense of complying with
discovery requests.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 358 (1978).
Plaintiffs argue that defendants should bear the cost of
producing plaintiffs’ work-related emails, which are maintained in
plaintiffs’ personal email accounts on their personal computers.
Plaintiffs restate the argument made before the magistrate judge
that such an order is proper given the court’s ability to limit
discovery
and
proportionality.
shift
discovery
costs
on
the
basis
of
See Fed. R. Civ. P. 26(b)(2)(C)(iii) (providing
that the court must limit discovery where it determines that “the
burden or expense of the proposed discovery outweighs its likely
4
benefit,
considering
the
needs
of
the
case,
the
amount
in
controversy, the parties’ resources, the importance of the issues
at stake in the action, and the importance of the discovery in
resolving the issues.”); see also Zubulake v. UBS Warburg LLC, 216
F.R.D. 280, 283-84 (S.D.N.Y. 2003) (setting out test for costshifting in the context of inaccessible electronic discovery).
Plaintiffs argue that the magistrate judge did not afford
sufficient weight to their proportionality argument. Plaintiffs do
not, however, identify “relevant statutes, case law or rules of
procedure”
that
the
magistrate
judge
ignored
or
misapplied.
Knutson, 254 F.R.D. at 556 (citation and internal quotation marks
omitted).
Indeed, the magistrate judge was not obligated to
consider cost-shifting under Zubulake because the emails are not
inaccessible to plaintiffs.
See 216 F.R.D. at 284 (“It is worth
emphasizing again that cost-shifting is potentially appropriate
only when inaccessible data is sought.” (emphasis in original)).
Thus, plaintiffs fail to identify a basis from which the court may
conclude that the denial of the request to shift discovery costs
was clearly erroneous or contrary to law.
See Escamilla v. SMS
Holdings Corp., No. 09-2120, 2011 WL 5025254, at *11 (D. Minn. Oct.
21, 2011) (overruling objection that magistrate judge “did not
appropriately consider proportionality” in denying cost-shifting).
As a result, the court finds no reason to disturb the magistrate
judge’s decision and overrules the objection.
5
II.
Motion for Conditional Certification
A.
Standard of Review
Defendants
certification
argue
is
a
that
motion
plaintiffs’
“to
permit
motion
for
maintenance
conditional
of
a
class
action,” which is excluded from the magistrate judge’s pretrial
authority.
See 28 U.S.C. § 636(b)(1)(A).
The Eighth Circuit is
silent as to whether a motion for conditional certification in a
FLSA collective action is within a magistrate judge’s authority.
Moreover, district courts have not ruled consistently on the
subject.
Compare Poreda v. Boise Cascade, L.L.C., 532 F. Supp. 2d
234, 238 (D. Mass. 2008) (finding magistrate judge has authority to
order conditional certification in a collective FLSA action), and
Patton v. Thomson Corp., 364 F. Supp. 2d 263, 265-66 (E.D.N.Y.
2005) (distinguishing conditional certification from certification
pursuant to Rule 23 and finding magistrate judge has authority to
order conditional certification in an FLSA collective action), with
Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014,
1015-16 (E.D. Mo. 2010) (referring motion for conditional class
certification
to
magistrate
judge
based
on
parties’
consent
pursuant to 28 U.S.C. § 636(c)), and West v. Border Foods, Inc.,
No. 05-2525, 2006 WL 1892527, at *1 (D. Minn. July 10, 2006)
(basing conditional certification on report and recommendation of
magistrate judge).
6
Where
a
authority,
matter
the
is
excluded
magistrate
judge
from
a
magistrate
may
issue
a
judge’s
report
recommendation, which the district court reviews de novo.
U.S.C. § 636(b)(1)(B)-(C).
not
decide
whether
a
and
See 28
For the instant motion, the court need
magistrate
judge
may
issue
an
order
conditionally certifying an FLSA collective action because, even
after a de novo review, the court overrules defendants’ objection.
B.
Objection
Rulings
to
Conditional
Certification
and Related
Defendants object to the magistrate judge granting the motions
for conditional certification,2 for identification of similarlysituated employees and for distribution of notice of the FLSA
action.
Specifically, defendants argue that plaintiffs failed to
establish that (1) putative class members are similarly situated,
(2) there was a single policy, plan or decision concerning the
putative class members and (3) a manageable class exists.
1.
Similarly Situated
Defendants first argue that plaintiffs failed to demonstrate
that the putative class members are similarly situated to the named
2
Plaintiffs proposed and the magistrate judge conditionally
approved an FLSA class consisting of “Clear Wireless[’s] and
Workforce[’s] employees and/or contractors that were employed in a
sales related capacity to sell Clear Wireless’ 4G broadband
products in Clear Wireless’ retail and national retail subdistribution channels and markets as either Retail Sales
Representatives and/or National Retail Account Executives from
April 2010 to the present.” ECF No. 100, at 2.
7
plaintiffs.3
“Section 216(b) of the FLSA allows one or more
employees to bring a collective action to collect unpaid ...
compensation against an employer for and [o]n behalf of himself or
themselves and other employees similarly situated.
For a case to
proceed as a collective action under § 216(b), the plaintiffs must
show that they are similarly situated.” Ahle v. Veracity Res. Co.,
738 F. Supp. 2d 896, 921-22 (D. Minn. 2010) (citation and internal
quotation marks omitted).
The FLSA does not define the term
“similarly situated,” and the Eighth Circuit is silent as to the
standard that should be used in analyzing whether employees are
similarly situated.
See Nerland v. Caribou Coffee Co., 564 F.
Supp. 2d 1010, 1017 (D. Minn. 2007).
Regardless, “courts in this
district typically employ a two-step process.”
Knaak v. Armour-
Eckrich Meats, LLC, No. 13-829, 2014 WL 67956, at *4 (D. Minn. Jan.
8, 2014).
“The first stage, or the notice stage, usually occurs
early on in the lawsuit, when the [c]ourt determines whether notice
of
the
action
should
be
given
3
to
putative
collective
action
Defendants also argue that “conflicting positions” in the
magistrate judge’s orders “evidence the clearly erroneous nature of
his decisions.” ECF No. 119, at 14. Responding to plaintiffs’
motion to compel “pre-conditional certification discovery,” the
magistrate judge declined to allow plaintiffs to obtain non-party
discovery in accordance with Rule 26(b)(1). See ECF No. 101, at 4.
Such a position does not directly contradict, nor does it
consequently render “clearly erroneous,” the magistrate judge’s
contemporaneous order conditionally certifying the class and
compelling identification of similarly-situated employees and
distribution of notice. See ECF No. 100, at 5-6. As a result,
defendants’ argument based on perceived conflicting language in the
orders is unavailing.
8
members.”
Nerland, 564 F. Supp. 2d at 1017
internal quotation marks omitted).
discovery,
the
court
“similarly
situated”
makes
a
At the second stage, following
factual
question.
(citations and
Id.
determination
“If
the
on
the
claimants
are
similarly situated, the district court allows the representative
action to proceed to trial.
If the claimants are not similarly
situated, the district court decertifies the class and the opt-in
plaintiffs
are
dismissed
without
prejudice.
The
class
representatives — i.e. the original plaintiffs — proceed to trial
on their individual claims.”
Id. at 1017-18 (citation omitted).
“A plaintiff’s burden when seeking conditional certification
is not onerous and the merits of a plaintiff’s claims are not
considered.”
Huang v. Gateway Hotel Holdings, 248 F.R.D. 225, 227
(E.D. Mo. 2008).
“Conditional class certification at the notice
stage requires not[h]ing more than substantial allegations that the
putative class
members”
are
similarly
situated.
(citations and internal quotation marks omitted).
Id.
at
227
Plaintiffs may
satisfy their burden – which only requires that they demonstrate a
factual basis beyond the bare pleading – through, for example,
affidavits and deposition testimony.
See, e.g., Davis v. NovaStar
Mortg., Inc., 408 F. Supp. 2d 811, 816 (W.D. Mo. 2005).
Here, plaintiffs “have made substantial allegations that the
putative class members are similarly situated.”
at 227.
Huang, 248 F.R.D.
Specifically, plaintiffs have submitted declarations from
9
seven employees,
all
of
whom
were
representatives for defendants.
entry-level or
See, e.g., Owens Second Decl.
¶ 3; Willis Decl. ¶ 3; E Santana Decl. ¶ 4.
state
that
sales
The declarations reflect common
job duties and responsibilities.
declarations
lead
defendants
engaged
in
Further, the
a
pattern
and
practice of requiring their employees to perform tasks before and
after their scheduled shifts and during meal breaks, for which
employees were not paid appropriate compensation. See, e.g., Owens
Second Decl. ¶¶ 11, 55; Lawrence Decl. ¶¶ 11, 55; Egginger Decl.
¶¶ 11, 55.
Uncompensated tasks included attending meetings and
training sessions, placing customer service calls and making salesrelated calls and visits outside of scheduled hours.
See, e.g.,
Owens Second Decl. ¶¶ 62-70; Lawrence Decl. ¶¶ 62-70; Lindsay
Second Decl. ¶¶ 50-58.
According to the declarations, defendants
had official policies against unpaid overtime work, but widespread
unwritten
policies required
employees
to
perform
work-related
activities outside scheduled hours without compensation.
See,
e.g., Owens Second Decl. ¶¶ 53-54; R Santana Decl. ¶¶ 53-54;
Egginger
Decl.
¶¶
53-54.
Moreover,
plaintiffs
argue
that
defendants’ systemwide “online ‘Timecard Entry System’ did not
allow [employees] to input” the extra time they worked. See, e.g.,
Owens Second Decl. ¶¶ 56-60, 71; Willis Decl. ¶¶ 56-60, 71;
Lawrence Decl. ¶¶ 56-60, 71.
As a result of these commonalities,
the court concludes that the declarations “suffice to show that the
10
members of the putative class, as defined by plaintiffs, are
similarly
situated
certification stage.”
for
the
purposes
of
this
preliminary
Knaak, 2014 WL 67956, at *6.
To the extent that defendants contest the facts asserted in
the declarations, “the [c]ourt need not consider disputes over the
factual
accuracy
of
the
employees’
statements
or
weigh
the
credibility of the plaintiffs’ submitted declarations at this
stage.”
Id.
(citations omitted).
“Defendant[s’] arguments are
properly raised in a motion to decertify filed after the close of
discovery, or at least where discovery is largely complete and the
matter is ready for trial.”
Huang, 248 F.R.D. at 228 (citation and
internal quotation marks omitted).
In sum, “[p]laintiffs have met
their burden of producing substantial allegations that the proposed
members are similarly situated.”
2.
Id. (citation omitted).
Single Policy, Plan or Decision
Defendants
next
argue
that
plaintiffs
failed
to
present
substantial allegations of a single policy, plan or decision.
At
the conditional certification stage, plaintiffs need only establish
“a colorable basis for their claim that the putative class members
were the victims of a single decision, policy, or plan.”
Meseck v.
TAK Commc’ns, Inc., No. 10-965, 2011 WL 1190579, at *3 (D. Minn.
Mar. 28, 2011) (citation and internal quotation marks omitted).
“Showing a colorable basis simply means that plaintiff[s] must come
forward with something more than the mere averments in [their]
11
complaint in support of [their] claim.”
Simmons v. Valspar Corp.,
No. 10-3026, 2011 WL 1363988, at *3 (D. Minn. Apr. 11, 2011)
(alterations in original) (citation and internal quotation marks
omitted).
As already explained, for the purpose of conditional
certification, plaintiffs’ declarations sufficiently support the
allegation of a common and pervasive policy.
See Carden v.
Scholastic Book Clubs, Inc., No. 2:10-cv-01112, 2011 WL 2680769, at
*3 (W.D. Mo. July 8, 2011) (finding that submitted statements and
other documents “establish[ed] at least a colorable basis for ...
allegations that a company-wide policy exist[ed] to ... deprive
employees of pay for work done before and after shifts”).
As a
result, the magistrate judge properly determined that plaintiffs
had met their burden of demonstrating a single policy, plan or
decision.
3.
Manageable Class
Finally, defendants argue that plaintiffs are not entitled to
discovery of the names or contact information of potential class
members
because
appropriate
they
for
failed
to
conditional
establish
a
manageable
certification.
class
Specifically,
defendants argue that the proposed class is unmanageable because of
disparities among potential plaintiffs.
The
court
has
“managerial
responsibility
to
oversee
the
joinder of additional parties” in the context of conditional
certification.
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
12
171
(1989)
(citation
and
internal
quotation
marks
omitted).
Although the Eighth Circuit is silent as to whether consideration
of manageability is proper at the conditional certification stage,
“[n]umerous courts have ... observed that disparate factual and
employment
settings
of
the
individual
plaintiffs
should
be
considered at the second stage of analysis, rather than at the
first
stage.”
Knaak,
2014
WL
67956,
at
*6
(alterations
in
original) (citation and internal quotation marks omitted); see
Meseck,
2011
individualized
WL
1190579,
inquiries
at
*6
should
(“[P]otential
not
defenses
prevent
and
conditional
certification at the notice stage and are more appropriately
addressed through a decertification motion.” (citations omitted)).
But see Saleen v. Waste Mgmt., Inc., No. 08-4959, 2009 WL 1664451,
at *8 (D. Minn. June 15, 2009) (observing that district courts are
not required to send out notice “when it appears that an FLSA case
will be unmanageable as a collective action”).
Here, the magistrate judge determined that “it is not patently
clear that the potential plaintiffs are so numerous or so diverse
as to render a class unmanageable.”
ECF No. 100, at 6.
Indeed, at
this stage in the proceedings, without the benefit of discovery, a
conclusive determination of manageability is premature.
As a
result, the court will not disturb the magistrate judge’s finding
on the basis of unmanageability.
the objection.
13
Therefore, the court overrules
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.
Plaintiffs’ objection [ECF No. 129] is overruled; and
2.
Defendants’ objection [ECF Nos. 119, 121] is overruled.
Dated:
March 3, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
14
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