Petrone v. Werner Enterprises, Inc. et al

Filing 59

MEMORANDUM AND ORDER - Plaintiff's motion to compel (Filing No. 48 ) is granted in part. On or before July 31, 2012, defendants will provide to plaintiff the requested driving, time, and payroll records for the three opt-in plaintiffs. Defen dants' unopposed motion for extension of time (Filing No. 58 ) is granted. Defendants shall have until August 14, 2012, to respond to plaintiff's motion for conditional certification. Plaintiff shall have until August 28, 2012, to file a reply. If the Court deems it necessary, a hearing on class action status will be scheduled. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE,
1709 Monmouth Parkway
Middleton, NJ 07748

)
)
)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING,
)
14507 Frontier Road
)
P.O. Box 45308
)
Omaha, NE 68145
)
)
and
)
)
DRIVERS MANAGEMENT, LLC
)
14507 Frontier Road
)
P.O. Box 45308
)
Omaha, NE 68145
)
)
Defendants.
)
______________________________)

8:11CV401

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff’s motion
to compel discovery prior to the Court’s ruling on class
certification (Filing No. 48).

Defendants filed a brief opposing

the motion with index of evidence (Filing Nos. 50 and 51).

Also

before the Court is defendants’ unopposed motion for extension of
time to file a motion in response to plaintiff’s motion for
conditional certification (Filing No. 58).

After review of the

motions, briefs, evidence, and relevant law, the Court will grant
in part plaintiff’s motion to compel discovery and will grant
defendants’ unopposed motion for extension of time.

In his complaint, plaintiff Petrone alleges that he is
a member of a putative class of driver trainees employed by
defendants.

Plaintiff maintains that defendants effectively paid

him less than the minimum wage required by the Fair Labor
Standards Act, 29 U.S.C. § 206.

In his motion to compel,

plaintiff requests that “Defendant provide documents establishing
the driving, time, and payroll records for a small sample of ten
similarly situated driver trainees in order to substantiate the
application of a common policy and practice of non-payment across
different job sites” (Filing No. 48, at 2).

Plaintiff also

requests similar information regarding three ostensible opt-in
plaintiffs (Id. at 3).
Plaintiff claims that this request is not unduly
burdensome to defendants and may be necessary for plaintiff’s
required showing for class certification (Id. at 4).

In

addition, plaintiff claims that “Defendants’ policy or practice
of payment or non-payment for compensable work of other,
similarly situated, employees, is relevant to determining
whether Defendants’ failure to pay Plaintiff for all time worked
was willful and intentional” (Id. at 3).
Defendants object to plaintiff’s request,
characterizing it as a “fishing expedition” (Filing No. 50, at
16).

Defendants cite Ingersoll v. Farmland Foods, Inc.,

10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011) for

-2-

the contention that discovery before class certification must be
limited.

In that case, plaintiffs had asked for extensive

information, including names, addresses, number of hours worked,
and amount paid during a three year time span to each putative
class member.

Ingersoll, 2011 WL 1131129, at *10.

In Ingersoll,

the court stated,
Defendant responds that this
request is not limited to documents
relevant to class certification;
instead, this discovery is as
though a class had already been
certified. In particular,
defendant indicates that plaintiffs
are seeking information as to
individuals that are not named
plaintiffs (whereas, the case law
generally provides that prior to
certification, plaintiffs are
entitled to only limited
information, such as the names and
addresses of employees at the
facility, not the “number of hours
worked” or “amount of remuneration
paid”).
Id.

Therefore, the Ingersoll court granted the plaintiffs’

motion to compel only in part, requiring defendant to provide
names and addresses, but no further information.

Defendants also

cite Morden v. T-Mobile USA, Inc., C05-2112 RSM, 2006 WL 1727987
(W.D. Wash. June 22, 2006) for the proposition that “[f]ederal
courts have recognized that while some limited discovery is
necessary to assist plaintiffs in defining a proposed class,
plaintiffs will not be given free reign for discovery on all

-3-

aspects of the merits of the claims.”

Morden, 2006 WL 1727987,

at *4.
Here, the Court agrees that plaintiff’s request for
driving, time, and payroll records of ten similarly situated
drivers is overly broad and beyond the scope of the limited
discovery allowed prior to the Court’s determination of class
certification.

While plaintiff claims that the sought-after

information is relevant to his allegation of willfulness, the
Court notes that discovery at this time is limited to class
certification (Filing No. 38, at 9).

However, the Court finds

that plaintiff’s request for information as to the three opt-in
plaintiffs is reasonable and should be granted.

Accordingly,

IT IS ORDERED:
1) Plaintiff’s motion to compel (Filing No. 48) is
granted in part.

On or before July 31, 2012, defendants will

provide to plaintiff the requested driving, time, and payroll
records for the three opt-in plaintiffs;
2) Defendants’ unopposed motion for extension of time
(Filing No. 58) is granted.

Defendants shall have until August

14, 2012, to respond to plaintiff’s motion for conditional
certification; and

-4-

3) Plaintiff shall have until August 28, 2012, to file
a reply.

If the Court deems it necessary, a hearing on class

action status will be scheduled.
DATED this 10th day of July, 2012.
BY THE COURT:
/s/ Lyle E. Strom
______________________________
LYLE E. STROM, Senior Judge
United States District Court

-5-