Lucas et al v. Bell Trans

Filing 145

ORDER Denying 117 Motion for District Judge to Reconsider Order. FURTHER ORDERED that the Defendants shall have until 6/3/11 to provide Plaintiffs with the names, addresses, phone numbers, and e-mail addresses of the proposed class members. Signed by Judge Gloria M. Navarro on 5/19/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY LUCAS, et al.,
Plaintiff,

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vs.
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BELL TRANS, et al.,
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Defendant.

Case No.: 2:08-cv-1792-GMN-RJJ
ORDER

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Before the Court is Defendants’ Motion to Reconsider the Magistrate Judge’s

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September 20, 2010 Order (ECF No. 117). Plaintiffs filed a Response (ECF No. 122) and

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Defendants filed a Reply (ECF No. 125).

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FACTS AND BACKGROUND

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Magistrate Judge Johnston issued an Order (ECF No. 112) approving of Plaintiffs’

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proposed Notice for circulation to prospective class members. In granting the motion, the

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Court ordered that the Defendants shall provide Plaintiffs with the names, addresses, phone

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numbers, and e-mail addresses of the proposed class members. Defendants object to the

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portion of the Order that directs them to provide the phone number and e-mail addresses of

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proposed class members. Defendants argue that requiring this information (1) is contrary to

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the purpose for having a set, preapproved, written notice that is sent to the former and current

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employees; (2) it violates employee privacy; and (3) it serves no purpose other than to

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facilitate violations of the strict Nevada prohibition on direct solicitations of potential clients.

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DISCUSSION
Local Rule IB 3-1 provides that “[a] district judge may reconsider any pretrial matter
referred to a magistrate judge in a civil . . . case . . . where it has been shown that the

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magistrate judge’s ruling is clearly erroneous or contrary to law.” This clearly erroneous

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standard is significantly deferential to the initial ruling, and this Court will only overturn the

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magistrate judge's decision if, upon review, the Court is left with a definite and firm conviction

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that a mistake has been made. See David H. Tedder & Associates, Inc. v. United States, 77

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F.3d 1166, 1169-70 (9th Cir.1996).

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Plaintiffs requested that the Magistrate Judge issue an order that they be immediately

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provided with the names, addresses, phone numbers and e-mail addresses of Defendants’

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limousine drivers who worked for Defendants at any time since December 18, 2005 in their

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motion for a circulation of notice. (Motion for Notice 12:10-12, ECF No. 44). In their

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response to Plaintiffs’ request, Defendants failed to address why providing the phone numbers

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and e-mail addresses would be improper in their Response. (See Response to Motion for

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Notice, ECF No. 47). The Magistrate Judge’s reasons for ordering the phone numbers and

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e-mail address are not given. However, it does not appear that the ruling is clearly erroneous

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or contrary to law.

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Many decisions in the Ninth Circuit ruling on motions for collective action notices

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under FSLA and for class certification have rejected the request for telephone numbers. See

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Stickle v. SCI Western Market Support Center, L.P., 2009 WL 3241790, at *7 (D. Ariz. Sept.

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30, 2009)(supplying the phone numbers of current and former employees seemed like a

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needless intrusion into the privacy of those individuals); Parks v. Eastwood Ins. Services, Inc.,

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2002 WL 34370244, at *5 (C.D. Cal. July 29, 2002)(warning that production of telephone

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numbers presents a greater risk of improper solicitation), citing Hoffman-La Roche Inc. v.

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Sperling, 493 U.S. 165, 171(1989); see also Campbell v. Pricewaterhouse Coopers, LLP, 2008

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WL 2345035 (E.D. Cal. Jun. 5, 2008) (denying disclosure of telephone numbers because it

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would violate the employees’ privacy rights).

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However, there also exist many Ninth Circuit cases that have allowed plaintiffs to

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collect phone numbers and e-mail addresses of proposed class members under FSLA. See

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Labrie v. UPS Supply Chain Solutions, Inc., 2009 WL 723599, at *8 (N.D.Cal. Mar. 18

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2009)(ordering defendants to provide e-mail addresses and telephone numbers of potential

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plaintiffs); Davis v. Westgate Planet Hollywood Las Vegas, LLC, 2009 WL 102735, at *13

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(D.Nev. Jan. 12, 2009)(ordering defendants to provide e-mail addresses to plaintiffs, however

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plaintiffs were only allowed to notify the putative class members via e-mail and U.S. mail);

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Goudie v. Cable Communications, Inc., 2008 WL 4628394, at *9, (D.Or. Oct. 14, 2008)

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(ordering phone numbers after defendant objected to these items).

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Pursuant to Hoffmann-La Roche Inc. the Court has discretion and “a managerial

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responsibility to oversee the joinder of additional parties to assure that the task is accomplished

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in an efficient and proper way.” 493 U.S. at 170–71. Thus it is within the Court’s discretion to

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order Defendants to give Plaintiffs whatever information it deems necessary in order for the

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Plaintiffs to notify potential class members. While this Court has previously denied requests

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for phone numbers, the decision was based on the particular facts of the case. The Magistrate

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Judge’s decision to allow phone numbers in this case was within his discretion based on the

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arguments and facts before him. There is sufficient persuasive law within this circuit that

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demonstrates that a court has the discretion to order telephone numbers and e-mail addresses

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be given to plaintiffs in FSLA actions. The Court finds that Magistrate Judge Johnston’s

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Order for Defendants to give Plaintiffs telephone number and e-mail addresses is not clearly

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erroneous or contrary to law.

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Further, Defendants had the opportunity to object to Plaintiffs’ request for phone

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numbers and e-mail addresses when the request was initially before the Magistrate Judge but

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they failed to do so. Now, Defendants now have a higher burden to show that the Magistrate

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Judge’s Order was clearly erroneous or contrary to law. Defendants have failed to meet this

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burden. Therefore, Defendants’ motion is DENIED.

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CONCLUSION

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IT IS HEREBY ORDERED that Defendants’ Motion to Reconsider Magistrate

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Judge’s Order (ECF No. 117) is DENIED.
IT IS FURTHER ORDERED that the Defendants shall have until June 3, 2011 to

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provide Plaintiffs with the names, addresses, phone numbers, and e-mail addresses of the

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proposed class members.

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DATED this 19th day of May, 2011.

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________________________________
Gloria M. Navarro
United States District Judge

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