Mason et al v. Lumber Liquidators, Inc.

Filing 84

MEMORANDUM AND ORDER granting in substantial part 80 Motion to Compel; denying 82 Motion to Stay. See attached for discussion. Ordered by Chief Mag. Judge Roanne L. Mann on 6/5/2019. (Proujansky, Josh)

Case 1:17-cv-04780-MKB-RLM Document 84 Filed 06/05/19 Page 1 of 3 PageID #: 1094

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------x
ASHLEIGH MASON, et al.,
Plaintiffs,

MEMORANDUM
AND ORDER

-against17-CV-4780 (MKB)
LUMBER LIQUIDATORS, INC.,
Defendant.
--------------------------------------------------------x
ROANNE L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE:
In two separate submissions filed yesterday, defendant Lumber Liquidators, Inc.
(“defendant”) seeks a court order either staying the deadline to distribute court-authorized
notice to the nationwide FLSA collective, see Letter Motion to Stay Deadline (June 4, 2019)
(“Def. Stay Motion”), Electronic Case Filing Docket Entry ("DE") #82, or, in the alternative,
granting defendant two weeks from the date of this order to produce data regarding the
potential collective action members to whom the notice must be sent (hereinafter “Collective
Data”), see Response to Order to Show Cause (June 4, 2019) (“Def. Response”) at 2, DE #83.
As an initial matter, defendant’s submissions are procedurally defective: Neither
application reflects that defense counsel conferred with plaintiffs’ counsel about the relief
sought, and thus neither states plaintiffs’ position on the request. And defendant’s application
to delay production of the Collective Data, which defendant filed in response to plaintiffs’
motion to compel production of the data by June 6, see Motion to Compel (May 31, 2019)
(“Pl. Motion”), DE #80, constitutes a cross-motion and, as such, should have been docketed

Case 1:17-cv-04780-MKB-RLM Document 84 Filed 06/05/19 Page 2 of 3 PageID #: 1095

into ECF as a motion event. On these grounds alone, the Court would be justified in denying
both defense requests.
In any event, the Court is not persuaded that a stay is warranted. Defendant argues
that Judge Brodie’s decision on its yet-to-be-filed objections to this Court’s Memorandum and
Order of May 13, 2019 “may limit the scope of the collective[.]”

Def. Stay Motion at 1; see

id. at 2 (speculating that the District Court may agree with defendant “that the collective was
too broadly defined”). Defendant offers no preview as to how it will challenge the scope of
the collective, and its papers opposing the motion for conditional certification shed little light
on this subject. Before this Court, defendant strenuously argued that the FLSA exemption at
the heart of this case implicates “[i]ndividualized [i]nquires,” see Memorandum in Opposition
(Nov. 30, 2018) at 27, DE #57; defendant then suggested in passing that if conditional
certification were granted, the collective should be limited to employees at the New York
locations where the original four named plaintiffs worked, see id. at 18, 29. But defendant
barely addressed the scope of the collective and its two offhand comments “offer[ed] no reason
for limiting notice in [the] manner” then proposed, see Memorandum and Order (May 13,
2019) at 33, DE #70.
Similarly makeweight is defendant’s argument that it will suffer “significant prejudice”
if notice is sent and Judge Brodie thereafter sustains defendant’s objections to this Court’s
Memorandum and Order of May 13, 2019. See Def. Stay Motion at 2.

Defendant fails to

describe the prejudice it would suffer in that scenario, nor is any potential prejudice self-

2

Case 1:17-cv-04780-MKB-RLM Document 84 Filed 06/05/19 Page 3 of 3 PageID #: 1096

evident. Simply put, defendant has offered no sound basis for delaying notice to the
collective.
Defendant argues, in the alternative, that rather than having to produce the Collective
Data by June 6, 2019, as requested by plaintiff, see Pl. Motion, defendant should be given two
weeks from the date of the Court’s order directing its production, see Def. Response at 2.
Defendant suggests that only a single employee of this nationwide business is capable of
compiling the necessary data. See id. at 1. Even assuming arguendo that another employee
or outside vendor could not be entrusted with this task, defendant has already had more than
three weeks to commence the compilation process. The Court declines to grant defendant
another two weeks. Instead, defendant is directed to produce the Compilation Data within
one week, by June 12, 2019.
For the foregoing reasons, defendant’s motion to stay the deadline to distribute notice to
the collective is denied and plaintiffs’ motion to compel production of the Collective Data is
granted in substantial part, except that the Court sets the deadline at June 12 rather than June
6.
SO ORDERED.
Dated:

Brooklyn, New York
June 5, 2019
/s/

Roanne L. Mann

ROANNE L. MANN
CHIEF UNITED STATES MAGISTRATE JUDGE

3