Zwerin v. 533 Short North LLC et al
Filing
59
OPINION and ORDER denying 48 Plaintiff's Emergency Motion for Protective Order. Signed by Magistrate Judge Terence P Kemp on 6/15/2011. (er1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Victoria Zwerin,
:
Plaintiff,
:
v.
:
:
533 Short North, LLC,
et al.,
Case No.
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
:
Defendants.
2:10-cv-488
OPINION AND ORDER
This Fair Labor Standards Act case is currently before the
Court for a ruling on plaintiff’s emergency motion for a
protective order, which was filed on May 6, 2011.
With the
filing of the reply brief on May 18, 2011, it is now fully
briefed.
For the following reasons, the motion will be denied.
I.
The overall background of this case has been explained in
prior orders of the Court, so that background will be set forth
here in very brief fashion.
In this FLSA case, Ms. Zwerin, who
worked as a bartender at one of defendants’ restaurants, claims
that she was required to participate in an unlawful “tip pooling”
arrangement - unlawful because it included management employees.
She also makes a claim for unpaid overtime compensation.
She
seeks to represent either or both an “opt-in” class under 29
U.S.C. §216(b) and a class to be certified under Fed.R.Civ.P. 23.
The Court has not yet issued any notice concerning the right of
potential plaintiffs to opt in.
A gentleman named Grant Dziak is a potential class member.
He signed a “Consent to Join Collective Action and Be Represented
by Morgan and Morgan, P.A.” on February 28, 2011, and that has
been filed with the Court.
See Doc. #20.
On the same day, he
signed a declaration which Ms. Zwerin attached to her motion to
certify a collective action.
See Doc. #26.
That declaration, in
summary, says that bartenders at defendants’ restaurants were
never paid for more than forty hours per week no matter how many
hours they worked, were paid “tipped minimum wage” rather than
regular minimum wage, and got their tips from a tip pool in which
the bar managers also participated.
Since signing his declaration, Mr. Dziak has had a number of
conversations or communications with two of the individual
defendants, Chris Corso and Brian Swanson.
After some of these
conversations had taken place, Mr. Corso sent Mr. Dziak a text
message.
An image of the message as it appeared on Mr. Dziak’s
phone is attached as an exhibit to the motion for a protective
order.
Because its content is important to the resolution of
this motion, it will be quoted in full just as it appeared on Mr.
Dziak’s phone.
It reads:
Bro I just read that entire thing your signed for that
attorney. In the name of working together can u
retract that thing for me? Some harsh stuff in their.
All you need to do is email him and say you want it
retracted. Come on man I never did you wrong.
Mr. Dziak replied that if he did so it would be “purgery.”
However, Mr. Corso assured him it would not because the
declaration had not been sworn to under oath or before a judge.
He asked Mr. Dziak to “cut me a little slack” by either
retracting it or signing a new letter stating that he was “mad”
when he signed it.
to his attorneys.
Mr. Dziak then reported these communications
See Plaintiff’s Emergency Motion for a
Protective Order, Exhibit 1.
Defendants do not argue that this message is not genuine.
However, they have submitted affidavits attempting to place this
exchange in a larger context.
According to them, Mr. Dziak was
never a manager (which, in his declaration, he claimed to have
been) but rather was a bartender and then a head bartender.
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He
quit his employment in February, 2011, and then took a similar
job with a competitor, after which he attempted to hire a number
of defendants’ bartenders.
Mr. Dziak and Mr. Corso then had a
meeting to work things out, after which tensions between the two
eased.
A proposal was then made that the competing companies co-
host an event, but defendants were supposedly reluctant to do
that because Mr. Dziak had submitted a “false” declaration in
this case.
According to defendants, Mr. Dziak admitted his
declaration was false but was worried about the consequences of
withdrawing it.
April 21, 2011.
That led to the message which Mr. Corso sent on
Defendants have described it as “the last in a
mutual series of meetings, calls, and texts designed to patch up
a business relationship.”
Doc. #50, at 11.
II.
Defendants’ memorandum in opposition,
The Court’s analysis of the legal issue presented by these
facts begins with the premise that, other things being equal, a
defendant does nothing wrong by communicating directly with
someone who may become, but is not yet, a member of either a
class for which certification is sought under Fed.R.Civ.P. 23 or
an opt-in class under 29 U.S.C. §216(b).
See, e.g., Longcrier v.
HL-A Co., Inc., 595 F.Supp.2d 1218, 1225-26 (S.D. Ala. 2008),
citing, inter alia,
Parks v. Eastwood Ins. Services, Inc., 235
F.Supp.2d 1082, 1085 (C.D. Cal.2002) .
In a case involving a
potential Rule 23 class, the Supreme Court, in Gulf Oil Co. v.
Bernard, 452 U.S. 89, 100 (1981), held that Rule 23 gives the
district court “both the duty and the broad authority to exercise
control over a class action and to enter appropriate orders
governing the conduct of counsel and parties.”
That duty and
authority extends to orders restricting communications between
counsel and potential class members - and in that case, it was
plaintiffs’ counsel who were instructed not to communicate with
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the potential class members routinely.
but such orders may not be issued
Rather, the Court held that this kind of order may
issue only “based on a clear record and specific findings that
reflect a weighing of the need for a limitation and the potential
interference with the rights of the parties.”
Id. at 101.
Although the Court did not expressly consider the impact of the
First Amendment in this context, it did observe that this type of
order is a prior restraint on communications and that any court
asked to issue such an order should give “attention to whether
the restraint is justified by a likelihood of serious abuses.”
Id. at 104.
These general principles have been applied to
§216(b) opt-in class actions as well. See, e.g., Maddox v.
Knowledge Learning Corp., 499 F.Supp.2d 1338 (N.D. Ga. 2007); cf.
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989)
(acknowledging the applicability of these concepts to an opt-in
action brought under the Age Discrimination in Employment Act, 29
U.S.C. §§621 et seq.
As a general matter, courts have expressed concerns with at
least two types of communications which might be made to
potential class members - those containing misrepresentations,
and those which may discourage persons from opting into the
class.
See Belt v. Emcare, Inc., 299 F.Supp.2d 664, 668 (E.D.
Tex. 2003); see also Dominguez v. Don Pedro Restaurant, 2007 WL
1650289 (N.D. Ind. June 1, 2007).
One example of the latter is
threatening employees with possible financial harm if they choose
to participate.
See, e.g.,
Hampton Hardware Inc. v. Cotter, 156
F.R.D. 630, 631-32 (N.D. Tex.1994).
However, regardless of the
basis upon which relief is being sought, “[t]he party moving for
a protective order must make two showings: (1) that a particular
form of communication has occurred or is threatened to occur, and
(2) that the particular form of communication at issue is abusive
and threatens the proper functioning of the litigation.”
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Ojeda-Sanchez v. Bland Farms, 600 F.Supp.2d 1373, 1378 (S.D. Ga.
2009).
Here, there is no dispute over the content of the allegedly
abusive communication, given that it consists primarily of a text
message and that a copy of that text message, in its original
image form as it appeared on Mr. Dziak’s cell phone, is an
exhibit to Ms. Zwerin’s motion.
The key question is, according
to 533 Short North, not what was in the text message, but the
context in which it was sent.
There is a serious dispute about
that, which the Court cannot resolve on the basis of paper
filings.
However, according to Zwerin, the text message speaks
so loudly for itself - and is so clearly an improper attempt to
undermine the class action - that the context is largely
irrelevant.
The Court agrees that the context of these exchanges is
largely irrelevant, but for a different reason than that advanced
by Ms. Zwerin.
At this point, due to his signing of the opt-in
form, Mr. Dziak is represented by counsel.
This immunizes him
from any contact with opposing counsel, and also provides him
with the ability to analyze and discuss any communications from
the defendants with his attorneys.
so.
In fact, he has already done
There is no possibility that these communications will
discourage him from joining the suit because he did so prior to
their having been made.
At this point, there is no suggestion
that these communications have influenced him to change his
decision about being an opt-in plaintiff, and, since he no longer
works for the defendants, their ability to pressure him with
regard to the issues raised in this case seems limited or nonexistent.
Additionally, Ms. Zwerin has not submitted any evidence that
defendants have engaged in any improper communications with other
opt-in plaintiffs or persons who are still potential but unnamed
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class members.
Defendants have submitted affidavits in support
of their memorandum in opposition to class certification from
various potential class members, but there is no evidence that
any of these affidavits were obtained or influenced by either
coercion or misrepresentations.
In short, the text sent to Mr.
Dziak - improper as it may appear to be on its face - is, based
on this record, a single, isolated incident which, even if it is
as improper as Ms. Zwerin suggests, does not support the issuance
of a blanket protective order restricting any and all
communications between defendants (or their counsel) and
potential class members.
The facts might suggest some need for
restrictions on communications with Mr. Dziak, but given his
participation in the case and his representation by Ms. Zwerin’s
counsel, it appears that he is fully capable of either refusing
to engage in such communications without the need for a court
order, or bringing any such communications to the attention of
his counsel.
Given that, the Court sees no need to protect Mr.
Dziak through the issuance of an order.
Thus, while the text
message at issue is certainly capable of being interpreted as an
effort to dissuade Mr. Dziak from further participation in the
case, and even an effort to cause him to commit perjury -
something that may well be addressed in a different context - the
Court perceives no future risk of injury that would justify what
is, in essence, an injunction (and would also be a prior
restraint on speech).
therefore be denied.
Ms. Zwerin’s motion for such an order will
III.
Based on the foregoing, plaintiff’s emergency motion for a
protective order (#48) is denied.
IV.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
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reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.
S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge
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