Rosenbohm v. Cellco Partnership
Filing
69
OPINION and ORDER memorializing the telephonic conference held on May 15, 2019. Also the April 17, 2019 Scheduling Order (ECF No. 63 ) is VACATED. Signed by Magistrate Judge Chelsey M. Vascura on 5/16/2019. (daf)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NEIL ROSENBOHM,
Plaintiff,
Civil Action 2:17-cv-731
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura
v.
CELLCO PARTNERSHIP,
Defendant.
OPINION AND ORDER
This matter came before the Court for a telephonic conference on May 15, 2019 arising
out of Defendant’s Objection (ECF No. 64) to this Court’s Scheduling Order dated April 17,
2019 (ECF No. 63). All parties appeared through counsel. This order memorializes that
conference and further explains the Undersigned’s reasoning for the rulings made during that
conference.
I.
BACKGROUND
This case arises under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”)
and the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Chapter 4111.01, et seq.
(the “Ohio Act”). Plaintiff worked for Defendant Cellco Partnership (d/b/a “Verizon”) as a
“Solution Specialist” at three locations from August 2013 to January 2017, in Hawaii, Ohio, and
West Virginia. Plaintiff alleges that Defendant engaged in a scheme not to pay Solution
Specialists and similarly-situated employees for the work they performed at Verizon store
locations. (Compl., ECF No. 1.) Specifically, Plaintiff alleges that Solution Specialists and
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similarly-situated employees were required to work off-the-clock at the end of shifts and to
participate in lengthy unpaid online training courses. (Id. at ¶¶ 13–16.) He also alleges that
Verizon failed to maintain accurate records of hours worked, including overtime work. (Id. at
¶ 17.)
On September 17, 2018, the Court granted Plaintiff’s Motion to Conditionally Certify an
FLSA Collective Action and to Authorize Notice. (ECF No. 35.) Thereafter, Plaintiff served
notice of the conditionally-certified FLSA collective action to all former and current Solution
Specialists employed by Defendant nationwide during the three years prior to the Order granting
conditional certification. At the close of the opt-in period, 3,875 opt-in plaintiffs had filed
consent forms to join the FLSA collective action. (Proposed Scheduling Order at 3, ECF No.
59.) The parties agreed that, due to proportionality concerns, only a portion of the 3,875 opt-in
plaintiffs would be subject to full discovery, but disagreed as to how many. (Id. at 7–10.)
Following a lengthy in-person discovery conference with the Court on April 10, 2019, the
Undersigned issued a Scheduling Order on April 17, 2019 setting various Second Stage
discovery deadlines and limiting discovery to a random sample of 94 opt-in plaintiffs. (ECF No.
63.) This number was arrived at by selecting a 95% confidence interval and a 10% margin of
error applicable to a population size of 3,875. (See Required Sample Size table, attached to
Defendant’s Objection as Exhibit A, ECF No. 64-1.) Defendant filed its Objection to the
Scheduling Order on May 1, 2019.
II.
A.
ANALYSIS
Random sampling is required to ensure the sample is representative of the opt-in
class.
Defendant’s Objection centers on the Undersigned’s directive in the Scheduling Order
that “Second Stage opt-in discovery, and any potential trial or other testimony from opt-in
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plaintiffs, will proceed based upon a randomly selected sample size of 94 opt-in plaintiffs.”
(Scheduling Order at 1, ECF No. 63.) Defendant contends that limiting opt-in discovery to a
random sample is “based on a flawed assumption that the opt-in class is similarly situated (which
is Plaintiff’s burden to prove at the close of Second Stage discovery).” (Objection at 1, ECF No.
64.) Defendant argues that, to account for the heterogeneity of the opt-in class, the parties must
each be allowed to “select, in equal numbers, the identity of those opt-in plaintiffs to be
deposed.” (Id. at 8.)
Defendant’s position fails to appreciate fundamental principles of statistical sampling.
The validity of a random sample does not depend on any pre-conceived assumptions about the
characteristics of the population from which the sample is drawn. On the contrary, sampling
“allows a statistician to use data from a sample of a given population to draw conclusions about
the entire population.” Hurt v. Commerce Energy, Inc., No. 1:12-CV-00758, 2015 WL 410703,
at *5 (N.D. Ohio Jan. 29, 2015). That is, sampling, when performed in a statistically sound
manner, will reveal whether there is heterogeneity among the opt-in plaintiffs such that final
certification is or is not appropriate. If, as Defendant contends, the opt-in plaintiffs are not
similarly situated, those differences will be reflected in the sample. In re Chevron U.S.A., Inc.,
109 F.3d 1016, 1019–20 (5th Cir. 1997) (“The essence of the science of inferential statistics is
that one may confidently draw inferences about the whole from a representative sample of the
whole.”); Nelson v. Am. Standard, Inc., No. 208-CV-390-TJW-CE, 2009 WL 4730166, at *3
(E.D. Tex. Dec. 4, 2009) (“The fundamental precept of statistics and sampling is that meaningful
differences among class members can be determined from a sampling of individuals.”); AndreasMoses v. Hartford Fire Ins. Co., 326 F.R.D. 309, 318 (M.D. Fla. 2018) (“The analysis of
a sample or subgroup is a commonly used scientific method of efficiently drawing inference
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about a larger population.”); Cranney v. Carriage Servs., Inc., No. 2:07-CV-01587-RLHPAL,
2008 WL 2457912, at *2 (D. Nev. June 16, 2008) (“[I]f there are differences among various
[employee] locations, a sampling of plaintiffs should reveal them.”).
But one can draw inferences about the larger population only if the sample is
representative of that larger population. And representativeness is best ensured using random
sampling. Andreas-Moses, 326 F.R.D. at 318 (“The sample is representative of the larger
population only when it is chosen using sound methods.”); Chevron, 109 F.3d at 1019 (to be
representative, “the sample must be a randomly selected one of sufficient size so as to achieve
statistical significance to the desired level of confidence in the result obtained.”); Hurt, 2015 WL
410703 at *5 (“For the survey’s results to be accurate, it must use a sampling method that
ensures the sample is representative of the entire population, meaning that the sample accurately
reflects the relevant parameters of the entire population. Usually this is done using some version
of random sampling.”); Shari Seidman Diamond, Reference Guide on Survey Research, in
Federal Judicial Center Reference Manual on Scientific Evidence, 380 (January 1, 2011) (“The
use of probability sampling techniques maximizes both the representativeness of the survey
results and the ability to assess the accuracy of estimates obtained from the survey.”).
Conversely, any non-random sampling method increases the likelihood that the sample
will be biased and not accurately represent the larger population. Hostetler v. Johnson Controls,
Inc., No. 3:15-CV-226 JD, 2016 WL 3662263, at *12 (N.D. Ind. July 11, 2016) (a non-random
sample “creates a potential for systemic bias that would prevent the results of the survey from
being reliably extrapolated from the sample to the class as a whole.”); David A. Freedman,
David H. Kaye, Reference Guide on Statistics, in Federal Judicial Center Reference Manual on
Scientific Evidence, 225, 230 (January 1, 2011) (“Probability methods [of sampling] are
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designed to avoid selection bias. . . . It is randomness [ ] that provides assurance of unbiased
estimates from a randomized controlled experiment or a probability sample.”).
Hand-picking is almost certain to introduce a substantial amount of selection bias into the
sample, such that the Court could not rely on the representativeness of the sample as to the
population of all 3,875 opt-in plaintiffs. Chevron, 109 F.3 at 1019–20 (where each party selected
15 cases out of 3,000 claimants, “the results that would be obtained from a trial of these thirty
(30) cases lack the requisite level of representativeness so that the results could permit a court to
draw sufficiently reliable inferences about the whole that could, in turn, form the basis for a
judgment affecting cases other than the selected thirty”); Augustin v. Jablonsky, 819 F. Supp. 2d
153, 173 (E.D.N.Y. 2011) (rejecting non-random sampling as “simply unsound: the Court cannot
fathom how the parties’ hand-selection of ten or twenty individuals would produce testimony
that is meaningfully representative or reflective of the experience of each individual member of a
17,000 member class.”). For these reasons, at the in-person conference and in the Scheduling
Order, the Undersigned rejected the parties’ original proposal that they each be permitted to
hand-pick a certain number of opt-in plaintiffs who would be subject to discovery and instead
ordered that 94 opt-in plaintiffs be selected at random.
Two further points bear mentioning: First, Defendant has not argued that it is entitled to
take full discovery of all 3,875 opt-in plaintiffs. It has conceded, based on proportionality
concerns under Fed. R. Civ. P. 26(b)(1), that full discovery of all opt-in plaintiffs is not feasible.
(Objection at 8, ECF No. 64.) Thus, Defendant is not opposed to sampling or representative
discovery itself; Defendant merely objects to the method of sample selection ordered by the
Court. As explained supra, however, any method other than random sampling will introduce
bias and decrease the reliability of the sample. Second, Defendant was expressly invited by the
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Undersigned during the in-person discovery conference to submit expert testimony supporting
the validity of its hand-picking proposal, and Defendant declined to do so. Instead, Defendant’s
objection to random sampling is based on its bare assertion, unsupported by any authority, that
the validity of a random sample depends “on a flawed assumption that the opt-in class is
similarly situated.” As explained supra, Defendant’s understanding is simply incorrect. The
Undersigned therefore sees no reason to revisit the decision that any sampling of opt-in plaintiffs
must be done randomly.
B.
Random sampling does not violate Defendant’s due process rights.
According to Defendant, limiting discovery to a random sample will also deprive
Defendant of its due process right to develop every available defense in the final certification and
trial proceedings. (Objection at 9, ECF No. 64.) This same argument was rejected by the United
States Court of Appeals for the Sixth Circuit in Monroe v. FTS USA, LLC, 860 F.3d 389, 395
(6th Cir. 2017) (“[T]he use of representative testimony and an estimated-average approach”
allowed “defenses successfully asserted against representative testifying technicians” to be
“properly distributed across the claims of nontestifying technicians.”). See also Smith v. Lowe’s
Home Centers, Inc., 236 F.R.D. 354, 357–58 (S.D. Ohio 2006) (“limiting discovery to a
statistically significant representative sampling, at this juncture, will both reasonably minimize
the otherwise extraordinary burden imposed on the plaintiffs and their counsel and yet afford the
defendant a reasonable opportunity to explore, discover and establish an evidentiary basis for its
defenses.”); Gentrup v. Renovo Servs., LLC, No. 1:07-CV-430, 2010 WL 6766418, at *7 (S.D.
Ohio Aug. 17, 2010) (“The Court finds that the use of representative discovery does not violate
due process and is proper where it facilitates the orderly proceeding of a collective action.”).
Thus, limiting discovery to a random sample of opt-in plaintiffs does not inherently impinge
upon Defendant’s due process rights.
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Courts have recognized, however, that defendants may be entitled to further discovery if
they can demonstrate (not merely assert) that they cannot sufficiently develop their defenses
based on an initial sample. Smith, 236 F.R.D. at 358 (“[I]f, after conducting the discovery of the
representative sample, defendants can demonstrate to the Court that broader discovery is
appropriate and necessary, the defendants can so move.”); Wade v. Werner Trucking Co., No.
2:10-CV-270, 2014 WL 1091707, at *26–27 (S.D. Ohio Mar. 18, 2014) (where there were
“important differences amongst a 10–person sampling of the putative class,” the court allowed
the defendant “to obtain discovery regarding each member of the entire [112-member] class—
both to determine if there is a class, and to determine if each proposed member is exempt.”).
Accordingly, discovery of the FLSA conditionally-certified class at this juncture remains
limited to a random sample of 94 opt-in plaintiffs. However, Defendant may, after completion of
discovery with regard to the 94-plaintiff sample, move for leave to conduct further discovery if it
can demonstrate why further discovery is necessary.
C.
Discovery as to the Putative Rule 23 Ohio Class
Defendant’s Objection further complains that the random sample ordered by the Court
“fails to consider the putative Rule 23 Ohio class (i.e., the possibility that none of the randomly
selected 94 opt-in plaintiffs worked as a Solutions Specialist in Ohio).” (Objection at 2, ECF
No. 64.) The reason for this is simple: the parties did not ask the Court to resolve any discovery
disputes related to the putative Rule 23 Ohio class, either in their proposed scheduling order or
during the in-person discovery conference. Defendant raised the putative Ohio class for the first
time in its Objection.
The putative Ohio class, brought under Fed. R. Civ. P. 23, differs from the conditionallycertified FLSA class, brought under the collective action provisions of 29 U.S.C. § 216, in
important respects. First, no certification of the Ohio class has yet occurred. At present, Plaintiff
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Rosenbohm is the only member of the putative Ohio class that is currently before the Court.
Further, the absent Ohio class members have not yet been notified of the potential class action
and will not be notified unless and until the Court certifies a class under Rule 23. And even if
they are notified in the future, they will not be required under Rule 23 to affirmatively opt in to
the Ohio class as were the FLSA class members; rather, upon class certification, they will
automatically become members of the Rule 23 class unless they affirmatively opt out. Fed. R.
Civ. P. 23(c)(2)(B). As explained by the United States Supreme Court:
Unlike a defendant in a normal civil suit, an absent class action plaintiff is not
required to do anything. He may sit back and allow the litigation to run its course,
content in knowing that there are safeguards provided for his protection. In most
class actions an absent plaintiff is provided at least with an opportunity to “opt out”
of the class, and if he takes advantage of that opportunity he is removed from the
litigation entirely.
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985). As a result, “[r]equiring absent class
members to respond to discovery threatens to turn a class suit into an ‘opt in’ procedure rather
than an ‘opt out’ mechanism, an approach the Supreme Court has squarely rejected.” 3 Newberg
on Class Actions § 9:11 (5th ed.) (citing Phillips, 472 U.S. at 812–13). Accordingly,
“[d]iscovery from absent members of a class should be sharply limited and allowed only on a
strong showing of justification.” J.B.D.L. Corp. v. Wyeth-Ayerst Labs., Inc., No. C-1-01-704,
2004 WL 7081790, at *4 (S.D. Ohio June 7, 2004); see also Hurt v. Commerce Energy, Inc., No.
1:12-CV-758, 2014 WL 3615807, at *5 (N.D. Ohio July 21, 2014) (“Generally, absent class
members in a Rule 23 class action are not subject to discovery.”).
Although some showing of need is uniformly required before permitting discovery of
absent class members, the courts in the Sixth Circuit have yet to arrive at a consensus as to what
showing defendants must make. See, e.g., Garden City Employees’ Ret. Sys. v. Psychiatric Sols.,
Inc., No. 3:09-00882, 2012 WL 4829802, at *2–3 (M.D. Tenn. Oct. 10, 2012) (To demonstrate
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discovery of absent Rule 23 class members is warranted, the defendant must make “a strong
showing” that “the information sought (1) is not sought with the purpose or effect of harassment
or altering membership of the class; (2) is directly relevant to common questions and
unavailable from the representative parties; and (3) is necessary at trial of issues common to
the class.”) (emphasis in original); Groth v. Robert Bosch Corp., No. 1:07-CV-962, 2008 WL
2704709, at *1 (W.D. Mich. July 9, 2008) (“The court should only allow discovery of absent
class members upon a showing of ‘particularized need,’ which generally requires a
demonstration that the discovery is addressed to common issues (as opposed to individual
issues), that it is not designed to force class members to opt out, and that it would not impose an
undue burden or require the deponent to seek legal or technical assistance to respond.”) (citation
omitted); In re Polyurethane Foam Antitrust Litig., No. 1:10 MD 2196, 2014 WL 764617, at *2
(N.D. Ohio Feb. 26, 2014) (endorsing the Manual for Complex Litigation’s “particularized need”
rule).
Defendant did not indicate, either in its Objection or at the May 15, 2019 conference, that
it is currently seeking discovery of absent class members. If, in the future, Defendant wishes to
take discovery of absent class members, it may seek leave of court to do so upon a showing of
particularized need.
III.
DISPOSITION
In light of the time it has taken the parties and the Court to address Defendant’s
objections and the upcoming deadlines in the existing Scheduling Order, the Court hereby
VACATES the April 17, 2019 Scheduling Order (ECF No. 63) and sets forth the following
discovery deadlines:
(1)
Second-Phase Discovery (encompassing all issues other than damages) shall be
completed by July 15, 2020.
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(2)
The parties shall coordinate to serve a questionnaire on the 94 opt-in plaintiffs and
Named Plaintiff Rosenbohm no later than July 31, 2019. Responses are due within
30 days (August 30, 2019). Plaintiffs’ counsel shall distribute the questionnaire and
collect the responses. Plaintiffs’ counsel shall provide the responses to defense
counsel no later than September 16, 2019. Defendant is permitted to file a motion
seeking all opt-ins who fail to respond to the questionnaire to be dismissed with
prejudice, and Plaintiff will have an opportunity to respond to the motion. The Court
will determine whether each opt-in should be dismissed after briefing. For each opt-in
who fails to respond to the questionnaire, the parties will work together to randomly
select an additional opt-in for opt-in discovery.
(3)
Defendant shall produce time, payroll, and scheduling data for the (i) Named Plaintiff
and (ii) each Verified Opt-in (as agreed upon or ordered) eligible to participate in the
case. This production shall be made on a rolling basis and shall be complete by July
31, 2019.
(4)
Defendant shall produce existing policies in the period relevant to this litigation
related to Solutions Specialist timekeeping, scheduling, and closing procedures by
July 31, 2019.
(5)
Defendant shall serve written discovery on the 94 randomly selected opt-ins no later
than November 15, 2019. Responses are due within 60 days. Defendant is permitted
to file a motion seeking all opt-ins who fail to respond to written discovery to be
dismissed with prejudice, and Plaintiff will have an opportunity to respond to the
motion. The Court will determine whether each opt-in should be dismissed after
briefing. For each opt-in who fails to respond to written discovery, the parties will
work together to randomly select an additional opt-in for opt-in discovery.
(6)
On or before February 14, 2020, Defendant may serve follow-up written discovery
requests. Responses are due within 30 days. Defendant is permitted to file a motion
seeking all opt-ins who fail to respond to written discovery to be dismissed with
prejudice, and Plaintiff will have an opportunity to respond to the motion. The Court
will determine whether each opt-in should be dismissed after briefing. For each opt-in
who fails to respond to written discovery, the parties will work together to randomly
select an additional opt-in for opt-in discovery.
(7)
Parties shall endeavor to complete supplementing of initial disclosures/identifying
fact witnesses and documents no later than April 15, 2020. However, the parties
remain under a continuing obligation to supplement or correct previous disclosures
under Fed. R. Civ. P. 26(e) after this date.
(8)
Named Plaintiff shall disclose, in accordance with Fed. R. Civ. P. 26(a)(2)(B), any
experts on whom he intends to rely in connection with Second-Phase Submissions
(i.e., submissions on any issues other than damages) by April 15, 2020.
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(9)
Defendant shall disclose, in accordance with Fed. R. Civ. P. 26(a)(2)(B), any experts
on whom it intends to rely in connection with Second-Phase Submissions (i.e.,
submissions on any issues other than damages) by June 10, 2020.
(10)
Plaintiff’s motion for class certification under Fed. R. Civ. P. 23 shall be filed by
August 31, 2020.
(11)
Defendant’s motion to decertify shall be filed by August 31, 2020.
(12)
All dispositive motions (e.g., Defendant’s anticipated motion for summary judgment
as to the individual claims of Name Plaintiff Rosenbohm (and other opt-ins as
appropriate) shall be filed by August 31, 2020.
(13)
Memoranda in opposition, either to Plaintiff’s motion for class certification,
Defendant’s decertification motion, and dispositive motions, shall be filed by October
15, 2020.
(14)
Replies in support, of either Plaintiff’s motion for class certification, Defendant’s
decertification motion, and dispositive motions, shall be filed by November 13, 2020.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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