Frisbie v. Feast American Diners, LLC et al
Filing
94
DECISION AND ORDER regarding deposition of plaintiffs.. Signed by Hon. Mark W. Pedersen on 5/7/20. (KAP)
Case 6:17-cv-06270-FPG-MJP Document 94 Filed 05/08/20 Page 1 of 8
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN FRISBIE, et al.,
Plaintiffs,
DECISION AND ORDER
17-CV-6270-FPG-MJP
-vsFEAST AMERICAN DINERS, LLC, et al.,
Defendants.
Pedersen, M.J. This is a conditionally certified collective action under
the Fair Labor Standards Act (“FLSA”). The issue before the Court is whether
Defendants should be permitted to depose the 20 1 individuals who opted to join
the collective action (“opt-in Plaintiffs”) or whether representative discovery
should be conducted, as Plaintiffs contend. For the reasons stated below, the
Court will permit Defendants to depose one opt-in Plaintiff from each of the
sixteen restaurant locations.
BACKGROUND
On April 28, 2017, Plaintiff John Frisbie (“Frisbie”), individually and on
behalf of all other persons similarly situated, commenced the present action to
“recover unpaid overtime compensation under FLSA for Frisbie and other
current and former Assistant Managers, and similarly situated current and
Defendants assert that there are 19 opt-in Plaintiffs, whereas
Plaintiffs assert that there are 20 opt-in Plaintiffs. The Court adopts Plaintiffs’
larger number for purposes of deciding this issue.
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former employees holding comparable positions but different titles” who
worked over forty hours in a given workweek at any Denny’s restaurant
nationwide for a stated time period. (ECF No. 1.) In June, 2019, this Court
granted Plaintiffs’ motion for conditional certification of a collective action.
(ECF No. 74). 2
On January 29, 2020, Plaintiffs filed a Joint Status Report in which they
indicated that, while the parties had reached agreements on certain aspects of
discovery, they disputed whether Defendants should be permitted to conduct
individual discovery on each opt-in Plaintiff, or if Defendants should only be
permitted to conduct representative discovery of a portion of the collective.
(ECF No. 90.) The parties requested Court intervention to help resolve this
dispute. (Id.) In response to the Status Report, the Court directed each party
to provide the Court with a letter outlining their respective position as to why
it should/should not permit Defendants to conduct individual discovery of those
individuals who opted to join the collective action. (ECF No. 91.)
On February 10, 2020, both parties submitted letters outlining their
positions. Plaintiffs assert that representative discovery is appropriate in this
case. (ECF No. 93.) Plaintiffs suggest that Defendants take the depositions of
9 opt-in Plaintiffs with the option of conducting addition additional depositions
if there is a reason that those depositions are insufficient. (Id.) Two Plaintiffs
Plaintiff Frisbie initially moved for conditional certification in August, 2018,
which was denied. (ECF Nos. 47 & 57.) Plaintiffs filed another motion for conditional
certification of a collective action in March, 2019. (ECF Nos. 59 & 61.)
2
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have already been deposed in this case – John Frisbie and Rebecca Russell.
(Id.) Plaintiffs assert that by permitting Defendants to conduct 9 additional
depositions would ultimately result in depositions of over 50% of Plaintiffs,
which it asserts comports with the FLSA jurisprudence and Federal Rule of
Civil Procedure 26’s proportionality limits. (Id.) Plaintiffs assert that the
purpose of the FLSA mechanism is to pool resources and reduce costs to
Plaintiffs and provides a more efficient resolution of many claims in one
proceeding. (Id.) Plaintiffs further assert that “[t]he burdens of deposing all
opt-in plaintiffs far exceed the purported benefit, particularly when also
considering [Defendants’] superior access to much of the information and its
resources.” (Id. at 4.) Finally, Plaintiffs highlight that Plaintiff Frisbie has
asserted a violation of New York State Labor Law, that “the vast majority” of
the opt-in Plaintiffs would also be absent members with respect to that claim,
and that discovery of absent class members is disfavored. (Id.)
Defendants assert that individualized discovery is the more appropriate
route because of the “comparatively few plaintiffs that have opted into the
FLSA collective.” (ECF No. 92.) Defendants indicate that they intend to seek
decertification, which will depend on whether Plaintiffs are truly similarly
situated. (Id., at 1–2.) For this reason, Defendants argue that the classification
issue in this case is “highly fact-sensitive” and that individual discovery is
necessary. (Id., at 1.) Defendants also contend that Plaintiffs have not
demonstrated that conducting 20 depositions would be burdensome. (Id. at 3.)
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Defendants assert that they should be permitted to depose all opt-in Plaintiffs,
but argues that if this is not permitted, it should be able to take the depositions
of 16 opt-in Plaintiffs – one Plaintiff from each of the 16 restaurant locations.
(Id. at 3.) At the very least, Defendants seek to depose the statutorily permitted
10 depositions pursuant to Federal Rule of Civil Procedure 30. (Id. at 3.)
ANALYSIS
While “[a] party must be afforded a meaningful opportunity to establish
the facts necessary to support his claim,” In re Agent Orange Prod. Liab.
Litig., 517 F.3d 76, 103 (2d Cir. 2008), the Court has broad discretion to limit
discovery, particularly when such discovery may be duplicative, more readily
obtained from another source, or when the burden or expense outweighs the
benefits of the discovery. Fed. R. Civ. P. 26(b)(2)(C). See also S.E.C. v.
Rajaratnam, 622 F.3d 159, 181 (2d Cir.2010) (“The right of access to discovery
materials is frequently qualified in the interest of protecting legitimate
interests.”). In determining how much discovery should be permitted, courts
must balance the need for information, the information's importance in
resolving the issues and the relief requested with the burden of discovery. Fed.
R. Civ. P. 26(b)(2)(C).
“Generally, there are two lines of cases regarding individualized
discovery in opt-in class actions: one allowing all opt-in plaintiffs to be subject
to discovery and one allowing only a sample of opt-in plaintiffs to be subject to
discovery.” Forauer v. Vermont Country Store, Inc., No. 5:12–cv–276, 2014 WL
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2612044, at *2 (D. Vt. June 11, 2014) (internal quotations & citations omitted).
Those decisions requiring all opt-in plaintiffs to respond to discovery have done
so because such plaintiffs ought to be treated as “ordinary party plaintiffs
subject to the full range of discovery permitted by the Federal Rules of Civil
Procedure[,]”
and
under
the
two-step
process
for
conditional
certification/decertification, “it is essential for a defendant to take
individualized discovery of the opt-in plaintiffs to determine if they are
‘similarly situated’ within the meaning of [the] FLSA.” Id. at *3 (internal
quotations & citations omitted).
Courts taking the opposite position have held that “collective actions
under the FLSA should be governed by the same standards as govern discovery
in [Fed. R. Civ. P. 23] class actions [,]” in which “individualized discovery ...
would undermine the purpose and utility of both class and collective actions.”
Id., at *2 (quoting Smith v. Lowe's Home Ctrs., Inc., 236 F.R.D. 354, 357 (S.D.
Ohio 2006). Further, courts taking this position also indicate that it “would be
unreasonably burdensome and wasteful of the parties' and the court's
resources” to permit individualized discovery. Id. at *2 (internal quotations &
citations omitted). In the latter circumstance, “particularly when the opt-in
plaintiffs are numerous[,]” courts permit discovery only from “a statistically
significant representative sampling” of plaintiffs. Id. (internal quotations &
citations omitted). See also Wellens v. Daiichi Sankyo Inc., No. C–13–581–
WHO (DMR), 2014 WL 7385990, at *2–4 (N.D. Cal. Dec. 29, 2014) (“the total
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number of unique Plaintiffs from whom Defendant will have the opportunity
to obtain evidence on issues pertinent to the propriety of class treatment will
be approximately 99, representing 40% of the class” where there were 248
plaintiffs); Bonds v. GMS Mine Repair & Maintenance, Inc., No. 13–cv–1217,
2014 WL 6682475, at *2 (W.D. Pa. Nov. 25, 2014) (permitting 5 written
interrogatories to be served on all 157 opt-in plaintiffs, permitting Defendant
to then select 20 Plaintiffs to respond to an additional 10 interrogatories, 8
document requests, and be deposed.); O'Toole v. Sears Roebuck & Co., No. 11
C 4611, 2014 WL 1388660, at *2 (N.D. Ill. April 10, 2014) (written discovery
limited to 33% of the opt-in plaintiffs and permitting defendant to depose up
to 10% of the opt-ins); Scott v. Bimbo Bakeries, Inc., No. 10–3154, 2012 WL
6151734, at *4–6 (E.D. Pa. Dec. 11, 2012) (interrogatories permitted to be
served on no more than ten percent of the final total of opt-ins, which numbered
650 at the time of the decision, and defendant permitted to depose 15 to 20 optin plaintiffs.).
However, “[i]n an FLSA collective action where the plaintiff class is
small and the discovery is related to the question of whether the individual
plaintiffs are similarly situated within the meaning of the FLSA,
individualized discovery is often permitted.” Strauch v. Computer Scis. Corp.,
No. 14 CV 956 JBA, 2015 WL 540911, at *1–2 (D. Conn. Feb. 10, 2015)
(citations omitted). See, e.g. Forauer, 2014 WL 2612044, *2 (permitting
depositions of all 24 opt-in plaintiffs in FLSA action); Daniel v. Quail Int'l, Inc.,
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No. 3:07-CV-53 (CDL), 2010 WL 55941, at *1 (M.D. Ga. Jan. 5, 2010)
(permitting individualized discovery of the 39 opt-in Plaintiffs); Ingersoll v.
Royal & Sunalliance USA, Inc., No. C05–1774–MAT, 2006 WL 2091097, at *2
(W.D. Wash. July 25, 2006) (approving individualized discovery of 34 opt-in
plaintiffs relevant to defendant's anticipated motion to decertify); Renfro v.
Spartan Computer Servs., Inc., No. 06–2284–KHV, 2008 WL 821950, at *3
(Mar. 26, 2008) (ruling that defendants could depose 27 FLSA opt-in plaintiffs);
Coldiron v. Pizza Hut, Inc., No. CV03–05865TJHMCX, 2004 WL 2601180, at
*2 (C.D. Cal. Oct.25, 2004) (granting motion to compel individualized discovery
of 306 FLSA opt-in plaintiffs); Krueger v. N.Y. Tel. Co., 163 F.R.D. 446, 451
(S.D.N.Y. 1995) (permitting individualized discovery on damages as to all 162
ADEA class members); Rosen v. Reckitt & Colman, Inc., No. 91 CIV. 1675
(LMM), 1994 WL 652534, at *2 (S.D.N.Y. Nov. 17, 1994) (permitting
depositions of 50 FLSA/ADEA opt-in plaintiffs).
“Although there is far from a ‘bright line’ test as to the number of optin plaintiffs which tips the balance in favor of representative sampling as
opposed to individualized discovery, it appears that when the number of opt-in
plaintiffs is approaching 200, courts are more inclined to order a representative
sampling.” Lloyd v. J.P. Morgan Chase & Co., No. 11 CIV. 9305 LTSHBP, 2015
WL 1283681, at *3 (S.D.N.Y. Mar. 20, 2015) (citations omitted).
Plaintiffs ask the Court to limit individualized discovery in this action
to 11 individuals, or approximately 50% of the collective. However, given the
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small size of the collective and the basic inquiry of whether Plaintiffs are
similarly situated, conducting individualized discovery appears to be the
appropriate route in this case. Such discovery is also appropriate based upon
Defendants’ stated intention to seek decertification. In addition, Plaintiffs’
bare bones assertion that the burden of deposing all opt-in Plaintiffs far
exceeds the purported benefit is insufficient. Plaintiffs contend that
Defendants have “superior access to much of the information and its resources
it seeks,” but not do provide any further explanation beyond these bald
statements in support of this claim.
However, despite the Court’s findings that this is an appropriate case
for individualized discovery, given the representations in the parties’ February
10, 2020, correspondence, the Court finds that Defendants are permitted to
conduct 16 depositions, deposing one opt-in Plaintiff from each of the 16
different restaurant locations.
IT IS SO ORDERED.
DATED:
May 7, 2020
Rochester, New York
______________________________
MARK W. PEDERSEN
United States Magistrate Judge
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