THOMPSON v. REAL ESTATE MORTGAGE NETWORK, INC. et al
OPINION. Signed by Judge Kevin McNulty on 3/28/17. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 11-1494 (KM) (MAH)
REAL ESTATE MORTGAGE
NETWORK, INC., et al.,
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on the objection of defendants to
Magistrate Judge Hammer’s October 21, 2016 Order (ECF Nos. 161, 162)
(“Discovery Order”) requiring them to produce to plaintiff, Thompson, “for the
time period of March 16, 2008 to the present, the name, address, home
telephone number, email address, job title[sj, dates of employment, company
name, and work location, of any and all underwriters, closers, and HUD
reviewers in Georgia and New Jersey.” The Discovery Order—routine in
collective action cases brought under the Fair Labor Standards Act (“FLSA”) 29
§ 201-19—is manifestly appropriate. The appeal is DENIED.
I write for the parties and so assume familiarity with the various
opinions and orders that have been issued in this case. (See, e.g., ECF Nos. 2324, 44, 106, 152) I highlight here the facts and procedural history that are
pertinent to the resolution of this appeal.
This action, filed in March 2011, has a stop-and-start history. There
have been two motions to dismiss (ECF. nos. 23, 24), a trip to the Third
Circuit, Thompson v. Real Estate Mortgage Network, 748 F.3d 142 (3d Cir.
2014) (ECF No. 44), and two motions for judgment on pleadings (ECF Nos, 52,
Thompson, a former underwriter employed at Security Atlantic
Mortgage Company, Inc., (“SAMC”) and Real Estate Mortgage Network, Inc.
(“REMC”), claims that SAMC and REMC have failed to compensate her for
overtime work. Under the FLSA, Thompson may bring a collective action on
behalf of “employees similarly situated.” 29 U.S.C.
§ 2 16(b). To determine
whether the members of the collective action are similarly situated to
Thompson, a court will employ a two-stage certification process. Camesi v.
Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013). The first step of
that process, a motion for conditional certification, has yet to be filed.
The issue presented here is this: Must the defendants turn over
contact information about potential opt-ins in advance of conditional
certification of the putative class? Following an oral argument held on October
21, 2016, Judge Hammer ruled that they must. See (ECF No. 160) To certify (or
not) a proposed class, the Court will eventually have to decide “whether all the
employees worked in the same department and location[,]” “whether their
claims are similar[,]” and “whether the relief that they seek is similar.” Judge
Hammer therefore concluded that the requested information “easily fits within
the ambit of discovery under Rule 26,” Fed. R. Civ. P. (Hrg. Tr. 31:6-13; 34:1619).
Defendants timely appealed the Discovery Order on November 4,
The District Court will reverse a Magistrate Judge’s decision on a non
dispositive motion only if it is “clearly erroneous or contrary to law.” Fed. R.
Civ. P. 72(a); L. Civ. R. 72. 1(c)(1)(A). This Court has frequently spoken of the
discretion granted to the Magistrate Judge in non-dispositive matters. Where,
as here, the appeal seeks review of a discovery dispute, an abuse of discretion
standard is appropriate. See Cooper Hospital/ Univ. Med. Ctr. v. Sullivan, 183
F.R.D. 119, 127 (D.N.J. 1998); Deluccia v. City of Paterson, No. 09-703, 2012
WL 909548, at *1 (D.N.J. March 15, 2012). Abuse of discretion review, of
course, may get us to much the same place: as a practical matter it
incorporates clear-error review of factual issues and plenary review of legal
questions. See Koon v. United States, 518 U.s. 81, 100 (1996).
Defendants assert that the Order is clearly erroneous for five primary
reasons: (1) the circumstances of this case are distinguishable from the facts
presented in Capitani v. McDonald’s Corp., C.A. No. 08-448, 2010 U.S. Dist.
LEXI5 57873 (D. Del. June 11, 2010) and Stilirnan v. Staples, Inc., Civil Action
No. 07-849, 2007 U.S. Dist. LEXIS 58873 (D.N.J. July 30, 2007), on which the
Discovery Order relied; (2) Thompson has no need for the information; (3)
equitable tolling issues do not require the information to be disclosed; (4)
disclosure would violate the privacy rights of third parties; and (5) the
Discovery Order is overbroad. I consider these reasons, but reject them.
Capitani and Stillman
Capitani and Stiliman both stand for the proposition that pre
conditional certification disclosure of the “names, address, position, and title of
employees with the same or similar job duties as the plaintiff’ is permissible
under the liberal relevancy standard of Rule 26. Stillman, at *4; Capitani, at
*jj3.fl As then-Magistrate Judge Patty Shwartz reasoned,
“there is no basis to
delay [disclosure of this informationi until after a ruling on the collective action
motion” because the information goes to “whether or not employees were
impacted by a common policy” and allows the plaintiff to identify which
employees are similarly situated. Stiliman, *2.4. Citing to Stiliman, Judge
Farnan in Capitani likewise concluded that “a list containing the names and
contact information of potential class members” is relevant to whether the
defendant “engages in a policy of wrongly classifying” employees, and ordered
the defendant to produce such information prior to conditional certification. Id.
Defendants do not argue that Stiliman or Capitani are contrary to
some other controlling precedent. Defendants instead stress that Stillman and
Capitani courts ordered the production of only a “narrow” range of information
for individuals with the same job title who suffered the same injury as the
plaintiff. That argument, however, begs a fundamental question: Are the
members of the proposed class similarly situated to Thompson? Defendants are
saying in effect that discovery is inappropriate now because (after discovery,
presumably?) they will defeat a motion to certify a class later. Perhaps so, or
perhaps not. Either way, I will not give what amounts to a preliminary, or even
preemptive, ruling on the certification motions.
The Discovery is Superfluous
Defendants next argue that Thompson doesn’t need the names and
other identifying information of potential opt-ins. Defendants say they have
As noted in Stiliman, however, there is non-controlling contrary precedent. See
Id. at *3 (citing Crawford v. Dothan City Bd. of Educ., 214 F.R.D. 694, 695 (M.D. Ala.
2003). But those cases seem to be in the minority. See, e.g., Capitani, 2010 U.S. Dist.
LEXIS 57873, at *910; Whitehall v. Wofgang’s Steakhouse, Inc., 09 Civ. 1148, 2010
U.S. Dist. LEXIS 58460, at *5...8 (S.D.N.Y. June 14, 2010) (collecting cases); Sjoblom v.
Charter Commc’n, 3:07-cv-0451-bbc, 2008 U.S. Dist. LEXIS 1001, at*56 (W.D. Wisc.
Jan. 4, 2008) (collecting cases); Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 55354 (N.D. Ill. Feb. 25, 2008) (collecting cases). It was not error for Judge Hammer to
rely on Stiliman and Capitani in the absence of controlling legal authority holding
Neither case involved the “narrowing” of a discovery request.
Without citation, defendants relatedly contend that pre-certification discovery
“circumvents” the conditional certification step in the two-step certification process.
Certainly this is not an accurate description of the lion’s share of case law on this
issue. See n. 1, supra. They also speculate that providing this information will result in
unsupervised communications between plaintiff’s counsel and opt-ins. Defendants’
support for this charge is the fact that two plaintiffs have already opted into this
lawsuit. But plaintiffs routinely opt into FLSA actions before a class has been
conditionally certified or before such a motion is filed. See, e.g., DePalma v. The Scotts
Co., 13-7740, ECF Nos. 3, 21, 26, 29, 36. Should specific instances of improper or
misleading communications between plaintiffs and potential opt-ins occur, defendants
may notify the Court. But for now, I decline the invitation to order Thompson or
counsel to refrain from contacting potential opt ins—a request which in any event was
never raised before Judge Hammer.
already produced other information that Thompson might use to determine
whether potential opt-ins are similarly situated. But strict necessity is not the
applicable legal standard. In light of certification issues—e.g., “whether all the
employees worked in the same department and location[,j” “whether their
claims are similar,]” and “whether the relief that they seek is similar”—Judge
Hammer correctly ruled that the information requested was relevant, and
indeed “classic document discovery” under Rule 26. (Hrg. Tr. 3 1:9-30; 33:1415; 34:16-19) To resist turning over the information, defendants needed to
show lack of relevancy or undue burden. See, e.g.; EEOC v. Princeton
Healthcare Sys., Civ. Action No. 10-4126 2012 U.S. Dist. LEXIS 65115, at *54.
55 (D.N.J. May 9, 2012). They made no such argument before Judge Hammer,
(Hrg. Tr. 33:3-4), and they have made no such showing here. I will not reverse
Judge Hammer’s well-reasoned and thorough Discovery Order on this ground.
Equitable Tolling Issues
Defendants’ third argument fares no better. Judge Hammer, they
claim, erroneously concluded that concerns over tolling issues required the
Court to grant plaintiff’s discovery request. That is not what Judge Hammer
ruled. It was merely one consideration—a consideration that I noted in denying
Thompson’s cross-motion to equitably toll the claims of potential opt-ins.
“[T]olling issues,” I wrote, would be decided “in the context of all other issues
that are presented by plaintiffs’ anticipated motion for condition certification.”
(ECF No. 152). “Obviously,” reasoned Judge Hammer, “the tolling issue calls
into question when the putative plaintiffs’ claims arose” and “that further
underscores the necessity of the plaintiff having.
discovery on who the
putative plaintiffs are, when they worked there, where they worked, and the
additional information requested.” (Hrg. Tr. 32:7-11) (emphasis added). Again:
defendants offer no authority suggesting that the consideration of equitable
Fed. R. Civ. P. 26(b) generally requires “discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of
the case... .“ Defendants have not cited Fed. R. Civ. P. 26 in their papers.
tolling issues, as one factor among a constellation of others, is legally
erroneous or an abuse of discretion. I will not reverse the Discovery Order on
Defendants’ fourth objection is essentially a recasting their first, and
will be rejected for substantially the same reasons. Adopting the reasoning of
Wofgarig”s Steakhouse, Judge Hammer ruled that Thompson’s
need for the information outweighed third parties’ privacy rights. 2010 U.S.
Dist. LEXIS 58460, at *84o. Here, too, defendants do not contend that
Whitehom is contrary to controlling precedent, or even contrary to the weight of
authority. Nor do they argue that Judge Hammer abused his discretion in
weighing Thompson’s interest in obtaining the requested information against
third-party privacy interests. They instead contend that Judge Hammer
erroneously relied on Whitehom because the plaintiff in that case sought the
contact information of third parties who were classified and paid in the same
manner and way as the plaintiff. Like defendants’ objections to Capitani and
Stiliman, this is circular. The discovery ordered by Judge Hammer goes to the
issue of whether the opt-ins are similarly situated to Thompson; its relevance
cannot be assumed away. It is indisputably relevant and therefore
discoverable. Surely the parties will vigorously litigate whether the proposed
class of opt-ins is in fact similarly situated to Thompson during the two-step
certification process. But defendants cannot deny their adversary relevant and
discoverable information by declaring victory.
Defendants’ final argument concerns the breadth of the discovery
ordered by Judge Hammer. Thompson, they say, is not entitled to telephone
information because she has not shown that email or postal addresses would
The court in Whitehall rejected the argument that plaintiff must make a “prima
facie” showing that similarly situated individuals exist to obtain pre-certification
discovery. Id. at *46.
be insufficient to identify and contact members of the opt-in class. This
argument was not made to Judge Hammer; defendants instead took the
position that no further discovery was appropriate at this pre-conditional
certification stage. (ECF No. 155, p. 8-15). I cannot find any error in Judge
Hammer’s failure to anticipate defendants now-preferred, failback position. At
any rate, I note that a number of other courts have ordered the same or
substantially similar discovery in the pre-conditional-certification stage. See,
e.g., Whitehall, 2010 U.S. Dist. LEXIS 58460, at *5...8 (names, last known
addresses, last known phone numbers, and job position); Stiliman, 2007 U.s.
LEXIS 58873, at *1 (names, addresses, position and title); AcevecZo, 248 F.R.D.
at 552-54 (N.D. Iii. Feb. 25, 2008) (names, addresses, telephone numbers,
dates of employment, and employee numbers).
Further segmentation of the issues, with issue being joined afresh at
each stage, will delay a decision on the merits of conditional and final
certification, without any substantial offsetting benefit. For the foregoing
reasons, defendants’ appeal of the Discovery Order is DENIED. (ECF No. 160)
Judge Hammer’s well-reasoned Discovery Order (ECF No. 161) is affirmed and
adopted by the Court.
Dated: March 28, 2017
United States District Judge
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