Boice v. M+W U.S., Inc. et al
Filing
59
DECISION AND ORDER accepting and adopting # 44 Magistrate Judge Hummel's Report-Recommendation in its entirety; denying # 40 Defendants' motion to strike the de Oliveria declaration; denying # 34 Plaintiff's motion to certify class without prejudice and with leave to renew if and when the completion of additional limited discovery yields facts and evidence that render such certification appropriate; granting in part and denying in part # 29 Plaintiff's motion to compel di scovery such that Defendants shall turn over to Plaintiff, within THIRTY (30) DAYS of the date of this Decision and Order, a computer-readable data file of the full names and last-known addresses of all structural, architectural, mechanical, and elec trical designers employed by Defendants at all of its locations in the three (3) years before the date of this Decision and Order; and denying the remainder of Plaintiff's motion to compel. The discovery period is reopened and the discovery dead line is extended an additional NINETY (90) DAYS from the date of this Decision and Order; and following the completion of discovery, Magistrate Judge Hummel shall re-set the dispositive motion deadline in this action. Signed by Chief Judge Glenn T. Suddaby on 9/11/15. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
VINCENT E. BOICE, Individually and on
behalf of all others similarly situated,
Plaintiff,
1:14-CV-0505
(GTS/CFH)
v.
M+W U.S., INC.; TOTAL FACILITY
SOLUTIONS, INC.; and M+W ZANDER
NY ARCHITECTS, P.C.,
Defendants.
______________________________________
APPEARANCES:
OF COUNSEL:
COOPER ERVING & SAVAGE LLP
Counsel for Plaintiff
39 North Pearl Street, 4th Floor
Albany, New York 12207
CARLO A.C. de OLIVEIRA, ESQ.
PHILLIP G. STECK, ESQ.
JACKSON LEWIS, P.C.
Counsel for Defendants
18 Corporate Woods Boulevard
Albany, New York 12211
PETER M. TORNCELLO, ESQ.
STEPHANIE L. GOUTOS, ESQ.
WILLIAM J. ANTHONY, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this wage-and-hour action filed by Vincent E. Boice
("Plaintiff") on behalf of himself and all others similarly situated against the three abovecaptioned entities (“Defendants”) under the Fair Labor Standards Act (“FLSA”), are the
following: (1) United States Magistrate Judge Christian F. Hummel’s Report-Recommendation
recommending that (a) Plaintiff’s motion to compel discovery be granted in part (such that
Defendants shall disclose to Plaintiff the full names and last-known addresses of all structural,
architectural, mechanical, and electrical designers employed by Defendants in the previous three
years at all of their locations), (b) Plaintiff’s motion to conditionally certify this matter as a
collective action pursuant to the FLSA be denied without prejudice and with leave to renew if
and when the completion of additional limited discovery yields facts and evidence that render
such certification appropriate, and (c) Defendants’ motion to strike as inadmissible seven
paragraphs of the declaration of Plaintiff’s counsel (“de Oliveria declaration”), submitted in
support of Plaintiff’s motion for conditional certification, be denied; (2) Defendants’ Objections
to that portion of the Report-Recommendation granting in part Plaintiff’s motion to compel
discovery; and (3) Plaintiff’s opposition to Defendants’ Objections. (Dkt. Nos. 44, 49, 51.) For
the reasons set forth below, Magistrate Judge Hummel’s Report-Recommendation is accepted
and adopted in its entirety; Defendants’ motion to strike the de Oliveria declaration is denied;
Plaintiff’s motion for conditional certification is denied without prejudice and with leave to
renew if and when the completion of additional limited discovery yields facts and evidence that
render such certification appropriate; and Plaintiff’s motion to compel discovery is granted in
part, as recommended by Magistrate Judge Hummel.
I.
RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties, and
neither party has objected to Part I of Magistrate Judge Hummel’s Report-Recommendation,
which sets forth the procedural background of this action, the Court incorporates by reference that
part of the Report-Recommendation, which is not clearly erroneous. (Dkt. No. 44, at Part I.)
A.
Magistrate Judge Hummel’s Report-Recommendation
Generally, in his Report-Recommendation, Judge Hummel made the following
recommendations: (1) that Defendants’ motion to strike as inadmissible seven paragraphs of the
2
de Oliveira declaration (which was submitted in support of Plaintiff’s motion for conditional
certification) be denied, because (a) evidence submitted for the purpose of conditional
certification need not be admissible, and (b) the Court possesses the power and ability to
determine the weight to assign to declarations, including the de Oliveria’s declaration; (2) that
Plaintiff’s motion to conditionally certify this matter as a collective action be denied, because it
failed to demonstrate that Plaintiff and the potential class members were subject to a common
unlawful policy or practice, but that such denial be without prejudice and with leave to renew if
and when the completion of additional limited discovery yields facts and evidence that render
such certification appropriate; and (3) that Plaintiff’s motion to compel discovery be denied
except that portion of the motion that requests the disclosure of the full names and last-known
addresses of all structural, architectural, mechanical, and electrical designers employed by
Defendants in the previous three years at all of their locations, because (a) whether to grant precertification discovery is entirely within the trial court’s discretion, (b) here, pre-certification
discovery of employee contact information will either enable Plaintiff to make a fuller showing at
the conditional certification stage, or reveal that the collective action is not suitable for
certification, and (c) Plaintiff has demonstrated a “compelling need” for certain pre-certification
discovery (specifically, the potential plaintiffs’ contact information), which need outweighs the
minimal privacy concerns resulting from the release of the potential plaintiffs’ contact
information. (Dkt. No. 44, at Part II.)
B.
Defendants’ Objections to the Report-Recommendation
Generally, in their Objections, Defendants take issue with only one portion of the ReportRecommendation: that portion of the Report-Recommendation which grants in part Plaintiff’s
3
motion to compel discovery. (Dkt. No. 49.) More specifically, in their Objections, Defendants
argue as follows: (1) to the extent that “[t]he recommendation orders Defendants to turn over to
Plaintiff the [discovery in question],” the recommendation is subject to a clear-error standard of
review, which it fails to meet; (2) the recommendation fails to meet this standard because, by
filing his motion for conditional certification before he received a ruling on his motion to compel
discovery, Plaintiff abandoned an argument that he needed the information sought in his motion
to compel discovery in order to file a motion for conditional certification;1 (3) in addition, the
recommendation fails to meet this standard because requiring Defendants to provide contact
information for the entire putative class nationwide without any finding by the Court that the
potential class members are similarly situated (and indeed with a Report-Recommendation having
found that Plaintiff has failed to demonstrate that he and the potential class members were subject
to a common unlawful policy or practice) would (a) be unfairly prejudicial to Defendants, (b)
allow for an inappropriate use of the judicial process, and (c) be an unnecessary departure from
established case law governing the matter and essentially eliminate the need for any certification
motion or two-step determination by the Court. (Id.)
C.
Plaintiff’s Opposition to Defendants’ Objections
Generally, in his opposition to Defendants’ Objections, Plaintiff opposes Defendants’
request that the Court reject that portion of Magistrate Judge Hummel’s Report-Recommendation
which grants in part Plaintiff’s motion to compel discovery. (Dkt. No. 51.) More specifically, in
1
In support of their Objections, Defendants adduce the transcript of a discovery
hearing in which Magistrate Judge Hummel stated that Plaintiff would not be required to file his
motion for class certification until after his motion to compel discovery was decided. (Dkt. No.
49, Attach. 2)
4
his opposition, Plaintiff argues as follows: (1) it is not true that by filing his motion for
conditional certification Plaintiff abandoned an argument that he needed the information sought in
his motion to compel discovery, because the denial of a motion for conditional certification under
29 U.S.C. § 216(b) does not prevent a plaintiff from obtaining discovery of information to which
he is entitled under Fed. R. Civ. P. 26(b)(1); and (2) according to the customary practice in the
Second Circuit, Plaintiff is entitled to pre-certification discovery of certain limited information in
wage-and-hour class actions in order to define the proposed class. (Id.)
In addition, in his “opposition,” Plaintiff seeks the following three forms of relief: (1) an
Order directing Defendants to provide the names and last-known addresses of “all putative class
members nationwide”; (2) an Order equitably tolling the limitations period in this action until the
time this Court rules on Plaintiff’s renewed motion for conditional certification; and (3) an Order
awarding Plaintiff attorneys’ fees incurred in responding to Defendants’ objections based on
Defendants’ “obstructionist and meritless conduct.” (Id.)
I.
GOVERNING LEGAL STANDARDS
A.
Legal Standard Governing Review of a Magistrate Judge’s ReportRecommendation
Generally, when a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection must,
with particularity, “identify [1] the portions of the proposed findings, recommendations, or report
to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).2 When
2
See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
5
performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C.
§ 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that
could have been, but was not, presented to the magistrate judge in the first instance.3 Similarly, a
district court will ordinarily refuse to consider argument that could have been, but was not,
presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district
judge will not consider new arguments raised in objections to a magistrate judge's report and
recommendation that could have been raised before the magistrate but were not.”) (internal
quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311, 312-13 (W.D.N.Y.
2009) (“In this circuit, it is established law that a district judge will not consider new arguments
raised in objections to a magistrate judge's report and recommendation that could have been
raised before the magistrate but were not.”) (internal quotation marks omitted).
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
3
See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
6
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d
Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.4 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review,
“the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Id.5
4
See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
5
See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
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After conducing the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.
Legal Standard Governing Review of a Magistrate Judge’s Non-Dispositive
Order
“When considering an appeal from a magistrate judge's ruling on a non-dispositive matter,
a district court will modify or set aside any portion of the magistrate judge's ruling that it finds to
be ‘clearly erroneous or contrary to law.’” Aquastore, Inc. v. Pelseal Techn., LLC, 06-CV-0093,
2010 WL 610685, at *2 (N.D.N.Y. Feb. 17, 2010) (Scullin, J.) (quoting 28 U.S.C. § 636[b][1][A];
Fed. R. Civ. P. 72[a]). A finding is clearly erroneous if “the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.” United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); United States v. Isiofia, 370 F.3d 226, 232
(2d Cir. 2004). “An order is contrary to law ‘when it fails to apply or misapplies relevant statutes,
case law, or rules of procedure.’” Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp.2d 70, 74
(N.D.N.Y. 2000) (Scullin, J.).
III.
ANALYSIS
After carefully reviewing all of the papers herein, including Magistrate Judge Hummel’s
Report-Recommendation, the Court can find no clear error in the Report-Recommendation. As a
result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated
therein. To those reasons, the Court adds five points.
First, although Magistrate Judge Hummel could have issued a decision on Plaintiff’s
motion to compel discovery (which is non-dispositive in nature), he chose to issue a reportrecommendation on it. The Court assumes that Magistrate Judge Hummel made this choice out
8
of an abundance of caution (i.e., because he found that “[c]ourts in this Circuit have disagreed
over whether to grant precertification discovery or the breadth of the discovery to permit”), or
perhaps because the motion to compel appeared to relate to the motion to conditionally certify,
which is arguably dispositive in nature. Ordinarily, this choice would matter because, in this
District, while a challenged order issued on a non-dispositive motion is reviewed for clear error, a
challenged report-recommendation (which is usually issued on a dispositive motion) is usually
reviewed de novo. However, under the circumstances, the Court finds that the appropriate level
of review is one of clear error for the following reasons: (1) motions to compel discovery are
among those most traditionally non-dispositive in nature; (2) Defendants appear to have conceded
in their Objections that a clear-error standard of review is appropriate;6 and (3) even if the ruling
in question were properly construed as a report-recommendation, Defendants’ challenge to it is
too repetitive of their earlier arguments (made before Magistrate Judge Hummel) to entitle them
to de novo review.
6
The Court notes that several courts in other districts have indicated a belief that
challenged report-recommendations on non-dispositive motions are subject to a clear-error
standard of review. See, e.g., Sudberry v. Warden, S. Ohio Corr. Facility, 14-CV-0676, 2015 WL
4078106, at *1 (S.D. Ohio July 6, 2015) (“When objections to a magistrate judge's report and
recommendation are received on a non-dispositive matter, the district judge must consider timely
objections and modify or set aside any part of the order that is clearly erroneous or is contrary to
law.”); Stamps v. Town of Framingham, 38 F. Supp.3d 134, 139 (D. Mass. 2014) (“A party may
object to a magistrate judge's report and recommendation on nondispositive matters. . . The
district judge in the case must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.”) (internal citation and quotation marks
omitted); Va. Beach Racquet Club N. Assoc., L.P. v. Travelers Indem. Co. of Conn., 11-CV0447, 2012 WL 32435, at *1 (E.D. Va. Jan. 5, 2012) (“When reviewing a magistrate judge's
report and recommendation on non-dispositive matters, the Court does not conduct de novo
review. Rather, it must consider timely objections and modify or set aside any part of the order
that is clearly erroneous or is contrary to law.”) (internal quotation marks omitted).
9
Second, while the Court might have (in its discretion) reached a different conclusion de
novo under the circumstances (e.g., based on [1] Fed. R. Civ. P. 23(c)(1)(A)’s directive that courts
make a certification decision “at an early practicable time,” and [2] a concern that Plaintiff's
attorneys may use such information to impermissibly identify potential new clients, rather than to
establish the appropriateness of certification, as suggested by the breadth of Plaintiff’s original
discovery requests), it can find no clear error or mistake of law in Magistrate Judge Hummel’s
conclusion, given the body of caselaw he relied on and the rationale he offered. Plaintiff’s
attorneys are, however, respectfully reminded of New York’s rules governing their
communications with prospective clients. See, e.g., 22 N.Y. Comp.Codes R. & Regs. § 1200.0,
7.1(a)(1) (“A lawyer or law firm shall not use or disseminate or participate in the use or
dissemination of any advertisement that . . . contains statements or claims that are false, deceptive
or misleading.”).
Third, while Defendants’ “abandonment” argument may have some surface appeal, the
Court must ultimately reject that argument, upon closer inspection. Among the weaknesses of the
argument is the fact that Plaintiff asserted his argument that he needed the information sought in
his motion to compel discovery before he asserted an argument that conditional certification was
appropriate, rendering the latter argument akin to one that is alternative in nature, which is
permissible. Cf. Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or
defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a
party makes alternative statements, the pleading is sufficient if any one of them is sufficient”).
The Court notes that the doctrine of judicial estoppel would preclude Plaintiff from continuing to
rely on the former argument only if he persuaded the Court to accept the latter argument, which
10
he did not do (and which, in any event, would have rendered his motion to compel moot, as he
has acknowledged).
Fourth, should Plaintiff file a second motion for conditional certification, his counsel is
advised that any affirmation submitted in support of that motion must be based on the affirmant’s
personal knowledge.7 Of course, to the extent Plaintiff’s counsel purports to possess personal
knowledge of a document, he may not mischaracterize the contents of that document. While
Magistrate Judge Hummel is certainly capable of assessing the extent to which the assertions of
Plaintiff’s counsel are not supported by the document on which he relies, Magistrate Judge
Hummel should not have to spend his valuable time and effort doing so.
Fifth, to the extent that Plaintiff’s “opposition” to Defendants’ Objections request any
forms of relief, those requests are denied on each of the following four alternative grounds: (1) to
the extent that the requests constitute Objections to the Report-Recommendation, those
Objections were not filed by the applicable deadline of June 1, 2015, and thus did not trigger a
procedure by which Defendants could respond to them; (2) to the extent that the requests
7
See Nguyen v. Versacom, LLC, 13-CV-4689, 2015 WL 1400564, at *4 (N.D. Tex.
March 27, 2015) (“Although evidence offered at the notice stage need not be admissible at trial,
the contents of affidavits and declarations still must be based on the personal knowledge of the
affiant or declarant.”); White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 369 (E.D. Tenn. 2006)
(The Court's determination that affidavits in support of motions for conditional certification need
not meet all evidentiary standards for admissibility at trial does not mean that such affidavits
need not meet any standards. On the contrary, affidavits submitted at the notice stage must be
based on the personal knowledge of the affiant. If the Court were to conclude otherwise,
affidavits submitted would not be any more probative than the bare allegations in the complaint,
and the requirement of factual support would be superfluous.”) (emphasis in original);
Simmons v. Valspar Corp., 10-CV-3026, 2011 WL 1363988, at *3 (D. Minn. Apr. 11, 2011)
(“Some courts consider evidence that would be inadmissible in deciding motions for conditional
certification. . . . The only clear requirement is that averments in support of a Motion for
Conditional Certification must be based on personal knowledge.”) (internal quotation marks and
citations omitted).
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constitute separate motions, they are unsupported by an affidavit as required by Local Rule
7.1(a)(2), and are largely (except the second request) unsupported by a memorandum of law, as
required by Local Rule 7.1(a)(1); (3) because Plaintiff’s second request was not filed properly
(e.g., with a Notice of Motion), no deadline was set for the filing of a response by Defendants to
Plaintiff’s (subsequently filed) memorandum of law; and (4) in any event, each request is
unsupported by a showing of cause.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 44) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to strike the de Oliveria declaration (Dkt. No. 40) is
DENIED; and it is further
ORDERED that Plaintiff’s motion to certify class (Dkt No. 34) is DENIED without
prejudice and with leave to renew if and when the completion of additional limited discovery
yields facts and evidence that render such certification appropriate; and it is further
ORDERED that Plaintiff’s motion to compel discovery (Dkt. No. 29) is GRANTED in
part such that Defendants shall turn over to Plaintiff, within THIRTY (30) DAYS of the date of
this Decision and Order, a computer-readable data file of the full names and last-known addresses
of all structural, architectural, mechanical, and electrical designers employed by Defendants at all
of its locations in the three (3) years before the date of this Decision and Order; and it is further
ORDERED that Plaintiff’s motion to compel is otherwise DENIED; and it is further
ORDERED that the discovery period is reopened and the discovery deadline is extended
an additional NINETY (90) DAYS from the date of this Decision and Order; and it is further
12
ORDERED that, following the completion of discovery, Magistrate Judge Hummel shall
re-set the dispositive motion deadline in this action.
Dated: September 11, 2015
Syracuse, NY
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