White et al v. 14051 Manchester, Inc. et al

Filing 135

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion to Compel 122 and Defendants Motion for Sanctions for Failure to Comply with Discovery 124 are GRANTED, in part, and DENIED, in part. Defendants shall provide the documents outlined above within seven (7) days of the date of this Order. Likewise, Plaintiffs shall produce opt-in plaintiff Sasha Kline for deposition within (7) days. Signed by District Judge John A. Ross on 7/29/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

)
)
THELMA WHITE and NICOLE CARROLL, )
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Plaintiffs,
)
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v.
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14051 MANCHESTER, INC. d/b/a
)
HOTSHOTS SPORTS
)
)
Defendants.
)

No. 4:12-CV-469 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel (ECF No. 122) and
Defendants’ Motion for Sanctions for Failure to Comply with Discovery (ECF No. 124). On
July 25, 2013, the Court held a telephone conference with counsel regarding these motions, and
the Court ruled as follows.
I.

Plaintiffs’ Motion to Compel
A. Request Nos. 1-4, 6-9: Documents Pertaining to Ownership and Operation of
Companies and Individuals that are Defendants in this Lawsuit

In their Motion to Compel, Plaintiffs claim that the Court should order production of
documents pertaining to ownership and operation of companies and individuals that are
defendants because such information is relevant to determine who the corporate decision-makers
might be and who might be considered an employer under the FLSA. In response, Defendants
contend that such documents are irrelevant because individual liability as an employer under the
FLSA is determined through actual involvement in day-to-day activities, not by ownership.

The Court finds that these requests seek relevant information but are overbroad. The
Court orders Defendants to produce corporate documents (such as operating agreements,
shareholder agreements) that reflect ownership of the corporate defendants during the opt-in
class period.1 Defendants shall produce such documents within seven (7) days.
B. Request No. 5: Written Communications To or From any Manager of
HotShots Relating to Tip Sharing
Request no. 5 seeks written communications to or from any manager of HotShots related
to tip sharing. Defendants respond that this request for all documents that “reflect or contain”
communications with a manager is overbroad and unduly burdensome.
The Court finds that this request seeks relevant information but is overbroad. The Court
limits request no. 5 to written communications regarding the company tip sharing policy.
Defendants shall produce such documents within seven (7) days.
C. Request No. 10: Copies of Check Out Slips and Related Documentation
Showing the Amount of Servers’ or Bartenders’ Tips Shared with Other
Workers at HotShots
In request no. 10, Plaintiffs request copies of the check-out slips and related
documentation. Plaintiffs contend that this request relates to the illegal tip sharing requirement
between servers, bartenders, cooks and doormen. Defendants assert that they have already
produced relevant documents and/or that no such documents exist. Defendants note that the
parties have stipulated as to the tip amounts. Defendants, however, state that they do not retain
the check-out slips beyond that of the current week.

1

The Court orders production of corporate documents of the non-franchise HotShot locations,
not the franchise HotShot locations that are not defendants in this action.
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The Court finds that Plaintiffs’ request for “related documentation” is overbroad. The
Court orders production only of the check-out slips, which it understands includes only those for
the current week. Defendants shall produce such documents within seven (7) days.
II.

Defendants’ Motion for Sanctions

In their Motion for Sanctions, Defendants seek dismissal of an opt-in plaintiff, Sasha
Kline, whom Defendants contend has failed to comply with their discovery requests.2 As of the
filing of the Motion for Sanctions on July 22, 2013, Ms. Kline had not responded to the
interrogatories propounded on all of the opt-in plaintiffs.

On July 23, 2013, Ms. Kline’s

interrogatory answers were served on Defendants. Defendants claim that they remain prejudiced
by Ms. Kline’s failure to file timely answers and ask the Court to strike Ms. Kline as an opt-in
plaintiff. Defendants assert that Ms. Kline’s answers are untimely as discovery closed as of July
10, 2013, and Defendants may have chosen to depose Ms. Kline, given that they did not use all
ten allotted depositions.
The Court orders Plaintiffs to produce Ms. Kline for deposition within seven (7) days.3
The Court, however, denies Defendants’ request to strike Ms. Kline as a plaintiff.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel [122] and Defendants’
Motion for Sanctions for Failure to Comply with Discovery [124] are GRANTED, in part, and
DENIED, in part. Defendants shall provide the documents outlined above within seven (7) days
2

Defendants also sought the dismissal of opt-in plaintiff Emily Regnery as sanction for her
failure to comply with discovery requests. Ms. Regnery, however, has opted out of the case.
(ECF No. 133).
3

The Court is aware of the impending deadline to file dispositive and Daubert motions. The
Court, however, understands that the parties will be seeking amendment of the Case
Management Order, including the deadlines for filing motions and the trial date. Therefore, the
Court permits the reopening of discovery to allow Defendants to depose Ms. Kline.
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of the date of this Order. Likewise, Plaintiffs shall produce opt-in plaintiff Sasha Kline for
deposition within (7) days.

Dated this 29th day of July, 2013.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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