McSwiggin et al v. Omni Limousine
Filing
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ORDER Denying Defendant's 42 Motion to Strike the Opinions of Plaintiffs' Expert Witness without prejudice as premature. Signed by Magistrate Judge Nancy J. Koppe on 07/25/2016. (Copies have been distributed pursuant to the NEF - NEV)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CHRISTY MCSWIGGIN, et al.,
Plaintiff(s),
vs.
OMNI LIMOUSINE,
Defendant(s).
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Case No. 2:14-cv-02172-JCM-NJK
ORDER
(Docket No. 42)
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Presently before the Court is Defendant’s Motion to Strike the Opinions of Plaintiffs’ Expert
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Witness. Docket No. 42. Plaintiffs filed a response, and Defendant filed a reply. Docket Nos. 54, 60.
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The Court finds the matter properly resolved without oral argument. See LR 78-1. As Defendant’s
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motion is premature, it is DENIED without prejudice.
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This is a collective and class action, in which Plaintiffs allege various claims for unpaid wages
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under federal and state law. Docket No. 54 at 2. On July 16, 2015, United States District Judge James
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C. Mahan conditionally certified the class and permitted Plaintiffs to circulate a notice of litigation to
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the prospective class members. Docket No. 21 at 6-7.
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Plaintiffs, however, never circulated the court-approved notice. Docket No. 27 at 1. Thus, no
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notice of this litigation has been given to the prospective class members. Id. A Motion for an Order
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Extending Time for Providing Notice and Opting-in to Litigation is pending, as are the parties’
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respective motions regarding certification. See Docket Nos. 27, 35, 36.
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Defendant’s motion to strike attacks the opinions of Plaintiffs’ expert, Mr. James Toney, who
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opines on the extent of Plaintiffs’ unpaid wages and unpaid overtime hours. Docket No. 42-2 at 5-17.
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Defendant characterizes Mr. Toney’s opinion as reliant on a flawed methodology, inherently unreliable,
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and misleading to the jury. Docket No. 42 at 11-20. Defendant’s argument centers on the contention
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that Mr. Toney “took no steps to ensure that his sample was actually representative of the population
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before he attempted to extrapolate his sampling result to the putative class as a whole.” Id. at 15.
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Plaintiffs respond that, since putative class members have not been afforded an opportunity to opt-in
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this litigation, Plaintiffs have been unable to conduct discovery regarding the prospective class
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members. Docket No. 54 at 4 n.6. Plaintiffs submit that Mr. Toney cannot create a statistically valid
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sample until they obtain this information. Id. at 7-8.
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Accordingly, the rulings on Plaintiffs’ Motion for an Order Extending Time for Providing Notice
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and Opting-in to Litigation and the parties’ respective certification motions, Docket Nos. 27, 35, 36,
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may impact or dispose of the arguments presently before the Court. Therefore, Defendant’s Motion to
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Strike the Opinions of Plaintiffs’ Expert Witness, Docket No. 42, is DENIED without prejudice as
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premature. Upon the disposition of the motions at Docket Nos. 27, 35, and 36, Defendant shall be
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permitted to refile its motion. Any refiled motion shall contain relevant updates to the cited facts and/or
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procedural history of the case, as well as all relevant authority.
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IT IS SO ORDERED.
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DATED: July 25, 2016
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______________________________________
______________________
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NANCY J. KOPPE
NCY KOPPE
OPPE
United States Magistrate Judge
Magistrate
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s Ma i
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