Myers et al v. Marietta Memorial Hospital

Filing 35

ORDER denying 20 Motion to Expedite; granting in part and denying in part 21 Motion to Compel; granting 30 Motion for Leave to File a sur-reply. Plaintiffs shall provide dates for their depositions within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/7/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lynnett Myers, et al.,
Plaintiffs,
v.

:
:
:

Case No. 2:15-cv-2956

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Marietta Memorial Hospital,
Defendant.

:

ORDER
This FLSA case is before the Court on defendant Memorial
Health System Marietta Memorial Hospital’s motion to compel the
depositions of Plaintiffs Lynnett Myers, Carol Butler, Arva
Lowther, and opt-in plaintiff Stacy Hanlon.

They have filed a

response and the matter has been fully briefed.

For the

following reasons, the motion to compel will be granted in part
and denied in part.
I.
On October 28, 2015, Ms. Myers, Ms. Butler, and Ms. Lowther
filed a complaint against the Hospital asserting a wage and hour
claim.

Subsequently, Stacy Hanlon consented to opt in as a

plaintiff.

On January 7, 2016, Plaintiffs filed a motion for

conditional certification under 29 U.S.C. §216(b), expedited
discovery and issuance of notice.

The briefing on this motion is

complete but it is still awaiting decision.

In opposing the

motion for conditional certification, the Hospital asserted that
“if the Court were inclined to consider class certification, the
Hospital should be permitted an opportunity to depose the
Plaintiffs.”
The Court held a preliminary pretrial conference on March 8,

2016.

With respect to discovery issues, the pretrial order

stated as follows:
A complete discovery schedule will be set at a
status conference to be held following the Court’s
ruling on the motion for conditional certification.
the interim, the Court will deal with discovery
disputes as they arise.

In

On March 10, 2016 the Hospital noticed all four Plaintiffs’
depositions.

On March 17, 2016, Plaintiffs filed an emergency

motion which contained, among other things, a request for a
protective order to prevent the depositions and a request to stay
discovery until a ruling on conditional certification.

The

Hospital’s motion to compel was filed shortly thereafter, with
the final brief (Plaintiffs’ sur-reply) having been filed on May
12, 2016.
II.
In its motion, the Hospital contends that the Federal Rules
allow discovery at this point in the litigation, the pretrial
order specifically contemplates that discovery will begin, and
the Plaintiffs cite no authority suggesting that discovery should
not proceed at this stage of the case.

On this last point,

referring to the arguments set forth in Plaintiffs’ emergency
motion, the Hospital contends that the cases relied upon by the
Plaintiffs do not prohibit discovery prior to a ruling on
conditional certification.

The Hospital explains that while a

two-step procedure applies in determining whether an FLSA case
should proceed as a collective action, this does not mean that
discovery cannot be undertaken, especially where, as here,
bifurcated discovery has not been ordered.

The Hospital suggests

that Plaintiffs have misquoted the case law in order to support
their position.

Finally, the Hospital seeks to recover fees and

costs incurred in connection with its motion as a result of what
it characterizes as Plaintiffs’ “contrived arguments.”
-2-

In response, Plaintiffs assert that the Hospital’s position
conflicts with the law in this Circuit.

Plaintiffs contend that

collective action certification and discovery are intertwined and
that, at the initial stage of this litigation, discovery is
appropriately limited to the issues surrounding conditional
certification.

In short, they insist that the merits discovery

the Hospital seeks is premature.

They explain that the Hospital

recognizes as much when it claims that it is seeking to depose
plaintiffs to “test whether they are similarly situated.”
Plaintiffs point out, however, that this statement of intention
is undercut by the fact that the motion for conditional
certification is fully briefed, a hearing has been set, and no
deposition testimony is required for the Court to issue its
ruling.

To the extent that the Hospital relies on the pretrial

order to support its position, Plaintiffs contend that the
language of the order does not indicate any specific discovery
ruling other than that disputes will be dealt with as they arise.
Finally, Plaintiffs argue that there is no basis for the
Hospital’s request for costs and fees.
The Hospital’s reply makes three distinct points at the
outset: (1) the Court has not limited or bifurcated discovery;
(2) the standard for determining conditional certification is not
a discovery rule; and (3) merits discovery is timely and will not
prejudice the plaintiffs.

The first two points are more refined

iterations of arguments made in their motion.

With respect to

its second point, the Hospital explains that is should not be
denied merits or traditional class action discovery just because
a motion for conditional certification has been filed.
point, as raised, is new.

The third

In making this point, the Hospital,

citing to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011),
contends that the rigorous analysis standard applicable to class
certification is related to the conditional certification
-3-

question.

The Hospital explains that the Supreme Court

recognized that a rigorous analysis will entail some overlap with
the merits of the underlying claim.

Accordingly, the Hospital

argues that the Court here should not be expected to decide the
conditional certification question without reference to the
merits.
This last point prompted Plaintiffs to seek to file a short
sur-reply addressing the Hospital’s argument.

The motion for

leave to file a sur-reply sets forth good cause and the Court
will grant it.

Plaintiffs argue that the rigorous analysis test

to be used by the Court in certifying a class action does not
apply to discovery taken in connection with a motion for
conditional certification under the FLSA.

Plaintiffs explain

that they have not moved for class action certification under
Rule 23 and that Wal-Mart v. Dukes has no applicability here.
III.
Cutting to the heart of the parties’ dispute, the Hospital
asserts that it is not prohibited from deposing Plaintiffs by the
Federal Rules of Civil Procedure, the preliminary pretrial order,
or case law.

Plaintiffs, on the other hand, contend that taking

their depositions at this point in the litigation is inconsistent
with the typical procedure for a FLSA collective action.

As

explained below, both positions are substantially correct, but
that does not means that these arguments cannot be reconciled.
Fed.R.Civ.P. 26(d)(1) permits parties to begin discovery
after they have held their Rule 26(f) conference.

There is no

order in this case altering that rule, so the Hospital correctly
argues that there is no current legal barrier to taking
depositions.

At the same time, frequently (usually by agreement

of the parties) in an FLSA action, depositions are not conducted
prior to a ruling on conditional certification.

The normal

course of an FLSA action in this Court has been described as
-4-

follows:
The FLSA does not prescribe a procedure for
instituting and managing a collective action against an
employer. However, courts generally employ a twotiered certification approach for deciding whether a
suit can proceed as a collective action. Baptist
Mem.’l., 699 F.3d at 877; Comer, 454 F.3d at 546;
O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567,
583-85 (6th Cir. 2009).
First, in what is referred to as the “initial notice”
stage, the Court must determine whether to
conditionally certify the collective class and whether
notice of the lawsuit has been given to putative class
members. White v. MPW Industrial Services, Inc., 236
F.R.D. 363, 368 (E.D. Tenn. 2006). The Court will
authorize such notice if the plaintiff demonstrates
that she is “similarly situated’ to the employees she
seeks to notify of the pendency of the action. Because
the court has minimal evidence at this stage, which
generally occurs prior to discovery, the determination
is made using a “fairly lenient standard” that
“typically results in conditional certification of a
representative class.” Baptist Mem.’l, 699 F.3d at 877
(citing Comer, 454 F.3d at 547); see also O’Brien, 575
F.3d at 584.
Due to the lenient standard at the initial notice
stage, district courts within the Sixth Circuit
typically do not consider the merits of the plaintiff’s
claims, resolve factual disputes, make credibility
determinations, or decide substantive issues when
deciding whether to conditionally certify a class.
See, e.g., Beetler v. Trans-Foram, Inc., No. 5:11-cv132, 2011 WL 6130805, at *3 (N.D. Ohio Dec. 8, 2011);
Burdine v. Covidien, Inc., No. 1:10-cv-194, 2011 WL
2976929, at *2-4 (E.D. Tenn. June 22, 2011); Seger v.
BRG Realty, LLC, No. 1:10-cv-434, 2011 WL 2020722, at
*3 (S.D. Ohio May 24, 2011). However, “[w]hile the
required level of proof is minimal and lenient at the
first stage, the court should exercise caution in
granting conditional certification because the Sixth
Circuit Appellate Court has held ‘that a conditional
order approving notice to prospective co-plaintiffs in
a suit under 216(b) is not appealable.’” Snide v.
Discount Drug Mart, Inc., No. 1:11-cv-244, 2011 WL
5434016, at *4 (N.D. Ohio Oct. 7, 2011)(quoting
-5-

Albright v. Gen. Die Casters, Inc., 2010 WL 6121689, at
*1 (N.D. Ohio July 14, 2010)). Once an action is
conditionally certified, notice is provided to the
putative class members and discovery proceeds.
O’Neal v. Emery Federal Credit Union, 2013 WL 4013167, *5 (S.D.
Ohio Aug. 6, 2013).
In its motion to compel, the Hospital asserts several
reasons for its need to depart from this typical approach and
depose the plaintiffs at this early stage of the litigation.

For

example, it contends that it should not be prevented “from
discovering the basis for Plaintiffs’ claims and testing
Plaintiffs’ argument that they are ‘similarly situated’ to each
other and other employees.”

In its reply, it contends that it is

not prohibited “from pursuing either merits or class discovery
simply because a motion for conditional certification was
filed....”

It also asserts, in suggesting the applicability of a

“rigorous analysis” standard, that “Plaintiffs ask this Court to
ignore the merits of their Complaint and to decide whether
conditional certification is proper without reference to the
merits.”
Plaintiffs challenge these reasons, pointing out that the
conditional certification issue is fully briefed and neither
party has suggested that further factual development must occur
before the Court rules.

In light of this, Plaintiffs assert

that, by seeking to depose them, the Hospital can only be seeking
merits discovery, and such discovery is premature.
The Court agrees with Plaintiffs that there is no need for
discovery related to any issues surrounding conditional
certification because briefing on that issue is complete.

To the

extent that the Hospital suggests that merits discovery is
necessary in this case to address conditional certification, or
that Plaintiffs should be required to meet the higher standard
for conditional certification which applies in Rule 23 class
-6-

actions, it is mistaken.

If that were the only reason asserted

by the Hospital for seeking to depose the plaintiffs, the motion
to compel would be denied.
However, the Hospital makes the argument - which can be made
in any case - that it needs these depositions to discover the
bases for Plaintiffs’ claims.

Consequently, the Court will

address the issue of whether, in the absence of any order or
agreement to the contrary, the Hospital is entitled either to
depose Plaintiffs or conduct other merits discovery before a
ruling on conditional certification is made.
Aside from the timing issue, the current situation is this:
Plaintiffs have not been deposed and their depositions have been
properly noticed pursuant to Rule 30.

The general rule in this

circumstance is that “‘under the liberal discovery principles of
the Federal Rules’ a party is ‘required to carry a heavy burden’
to show why a properly-noticed deposition should not go forward.”
Libertarian Party of Ohio v. Husted, 302 F.R.D. 472, 475 (S.D.
Ohio 2014), quoting Blankenship v. Hearst Corp., 519 F.2d 418,
429 (9th Cir. 1975).

Although difficult to do, a party may meet

that burden in a number of different ways.

For example, the

party might show that the deposition has been noticed too early
(before the Rule 26(f) conference) or too late (after the
discovery cutoff date) or that the deponent falls into a category
of witnesses who are easy targets for harassment, and for whom
the burden of showing the appropriateness of the deposition may
shift to the requesting party.

Id.

None of these situations exist here nor is Plaintiffs’
argument grounded in Rule 26(b) or Rule 26(c).

Rather, their

sole challenge to the depositions is that merits discovery at
this stage is inconsistent with the typical approach in FLSA
cases.

Even within that framework, however, they do not argue

that allowing the depositions to go forward at this stage will
-7-

result in inefficiency or that they will be prejudiced in some
way.

In short, they have not demonstrated good cause as to why,

even acknowledging the Hospital’s atypical timing, these
depositions should not go forward.

Denying the motion to compel

absent a specific and persuasive showing of good cause would cut
against the fact that, under Rule 30(a), “[a] party may ...
depose any person, including a party, without leave of court....”
Beyond this, while the Hospital’s choice to depose
Plaintiffs at this point may be viewed as unusually aggressive,
there is no question that it will be entitled to depose
Plaintiffs at some point regardless of whether a conditional or a
Rule 23 class is certified.
court in

Faced with a similar situation, the

Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 634 (D. Kan.

2012), explained:
In the absence of more guidance from the parties,
the court is inclined to allow what appears to be
merits discovery when it is likely plaintiffs would be
entitled to the information at some point and when the
discovery request is not subject to a supported
objection. Even if this case is not certified, the
named plaintiffs’ claims will remain, and those
plaintiffs would be entitled to discovery regarding
defendant’s compensation policies and practices and the
like – information tending to support or negate the
claims or defenses.
This is the scenario presented here, and the Court finds
this reasoning persuasive.

Even if the motion for conditional

certification is denied, Plaintiffs’ claims will remain and the
Hospital will be entitled to depose them.

Stated another way,

“whether a motion for conditional certification is granted or
denied, the case proceeds with discovery.”

White v. MPW

Industrial Services, Inc., 236 F.R.D. 363, 368 (E.D. Tenn. 2006).
In reaching this conclusion, however, the Court is mindful
of Plaintiffs’ position that this is not the normal procedure for
FLSA cases in this Court.

Consequently, this order applies only
-8-

to the specific circumstances presented here - that is,
bifurcation or phasing of discovery has not been ordered, the
parties have not been able to reach an agreement regarding the
timing of discovery, and good cause for denying the motion to
compel has not been demonstrated.

This order is not intended to

endorse a departure from the typical approach followed in FLSA
cases before the Court, which may well serve the interests of
judicial economy by, for example, permitting the parties to
discuss settlement if conditional certification is ordered before
engaging in expensive merits-based discovery occurs.

Perhaps

that is why many defendants do not insist on merits discovery at
the early stages of FLSA cases.
IV.
For these reasons, the motion to compel (Doc. 21) is granted
to the extent it seeks to depose the plaintiffs and denied to the
extent it seeks an award of fees and costs.
to file a sur-reply (Doc. 30) is granted.

The motion for leave

Plaintiffs shall

provide dates for their depositions within fourteen days of the
date of this order.

Plaintiffs’ emergency motion for a

protective order, cease and desist order, corrective actions, and
the immediate granting of plaintiffs’ motion for issuance of
notice (Doc. 20) is denied to the extent that it seeks a
protective order prohibiting the depositions.
Motion for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

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
-9-

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 even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

-10-