Waters v. Pizza to You, L.L.C. et al
ENTRY & ORDER granting in part 62 Motion to Compel Discovery Responses, and granting 64 Motion for Extension of Time to File Response as to 51 Motion for Summary Judgment. Plaintiff is granted until January 14, 2022 to file a response to the pending motion for summary judgment. Signed by Judge Thomas M. Rose on November 18, 2021. (jab)
Case: 3:19-cv-00372-TMR Doc #: 69 Filed: 11/18/21 Page: 1 of 11 PAGEID #: 833
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Kirk Waters, et al.,
Case No. 3:19-cv-372
Judge Thomas M. Rose
Pizza to You, LLC, et al.,
ENTRY AND ORDER GRANTING IN PART MOTION TO COMPEL
DISCOVERY RESPONSES, ECF 62, AND GRANTING MOTION FOR
EXTENSION OF TIME TO FILE RESPONSE/REPLY AS TO MOTION FOR
SUMMARY JUDGMENT. ECF 64.
This matter is before the Court on Plaintiff’s Motion to Compel Discovery Responses, ECF
51, and Plaintiffs’ Motion for Extension of Time to File Response/Reply as to Motion for
Summary Judgment. ECF 64. Defendants Pete Marrocco and PRM Management, LLC have
moved for summary judgment, asserting that Pete Marrocco is not an “employer” under the Fair
Labor Standards Act and relevant Ohio wage and hour laws. ECF 51. Plaintiff Kirk Waters claims
a need for discovery and extra time to respond to this motion.
Plaintiff alleges that Defendants, owners and operators of five Jet’s Pizza stores, have
systematically violated the FLSA and state wage and hour laws by failing to properly reimburse
their delivery drivers for automobile expenses incurred in the course of doing their job. The Court
has certified a Rule 23 class under Ohio law. On May 7, 2021, the Court granted partial summary
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judgment to Plaintiff, holding that Defendants were required to either record and reimburse for all
of the delivery drivers’ actual automobile expenses, or reimburse at the IRS rate. Doc. 53.
The parties presently contest whether each of the Defendants qualify as the delivery
drivers’ “employer” under the FLSA and state wage and hour laws. Plaintiff has requested emails
and text messages to and from Mr. and Mrs. Marrocco and their Jet’s Pizza stores relating to the
entity defendants and/or the Defendants’ Jet’s Pizza stores. See Plaintiff’s Second Requests for
Production, Request 22 (“Communications Discovery Requests”) ECF 62-1. Defendants
responded that Plaintiff’s requests are “[i]rrelevant to any claim or defense in the matter and
privileged under Fed. R. Evid. 501 and Ohio R.C. 2317.02(D).” See Responses, ECF 62-2.
Defendants identify the General Manager for all five stores as Jake Kogelman. See,
response to interrogatory number 2, Doc. 34-1, PageID 307. Defendants assert the deposition of
Rosemary Marrocco established that Jake Kogelman, as the General Manager, oversees the
operations of all pizza stores. Doc. 34-2, PageID 319, Depo. At 26, lines 14-16. According to
Defendants, Kogelman handles oversight and the day-to-day operations of the stores. Doc. 34-2,
PageID 320, Depo. at 30, lines 21-24. Defendants further assert that, to the extent Rosemary
Marrocco communicates with Jake Kogelman concerning any of the stores, she does so through a
personal email account, Petem56@comcast.net, and does so with Jake Kogelman at
firstname.lastname@example.org. Doc. 34-2, page ID 327, Depo. at 60 at lines 17-25.
Thus, Defendants have suggested that they produce only emails to and from Jake
Kogelman, the general manager of their Jet’s Pizza operation. In the alternative, Defendants
suggested the parties agree to search terms.
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The scope of discovery as set out in the Federal Rules of Civil Procedure provides that:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “Court[s] ha[ve] the duty to deny discovery directed to matters not
legitimately within the scope of Rule 26, and to use its broad discretionary power to protect a party
or person from harassment or oppression that may result even from a facially appropriate discovery
request.” Ward v. Am. Pizza Co., 279 F.R.D. 451, 458 (S.D. Ohio 2012) (citing Herbert v. Lando,
441 U.S. 153, 177 (1979)). Moreover, “district courts have discretion to limit the scope of
discovery where the information sought is overly broad or would prove unduly burdensome to
produce.” Info Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448, 457 (6th Cir. 2008) (quoting
Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)).
As a result, “[i]n determining the proper scope of discovery, a district court balances a
party’s ‘right to discovery with the need to prevent ‘fishing expeditions.” Marsden v. Nationwide
Biweekly Admin., Inc., No. 3:14CV00399, 2016 WL 471364, at *1 (S.D. Ohio Feb. 8, 2016)
(quoting Crabbs v. Scott, No. 2:12-CV-1126, 2013 WL 4052840, at *1 (S.D. Ohio Aug. 9, 2013)).
“Restoring proportionality’ is the touchstone of revised Rule 26(b)(1)’s scope of discovery
provisions.” Siriano v. Goodman Mfg. Co., L.P., No. 2:14-cv-1131, 2015 WL 8259548, at *5 (S.D.
Ohio Dec. 9, 2015) (citing Fed. R. Civ. P. 26(b)(1)).
With a motion to compel discovery, the moving party “bears the initial burden of proving
that the information sought is relevant.” H.H. v. G6 Hospitality, LLC, Nos. 2:19-cv-755, 2:193
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cv849, 2021 WL 1711297, at *2 (S.D. Ohio Apr. 30, 2021) (quoting Gruenbaum v. Werner Enter.,
Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010)). If the moving party meets this initial burden, “then
the burden shifts to the non-movant to show that to produce the information would be unduly
burdensome.” Id. (quoting Prado v. Thomas, No. 3:16-CV-306, 2017 WL 5151377, at *1 (SD.
Ohio Oct. 19, 2017)).
Under the FLSA, both companies and individuals can be “employers,” and, thus, liable for
any wage and hour violations. 29 U.S.C. 203(a) and (d):
In the Sixth Circuit, being the “top man” at a corporation that functions for
an individual’s profit is sufficient to impose FLSA liability. Dole v. Elliot
Travel & Tours, Inc., 942 F.2d 962, 966, (6th Cir. 1991). This is true even
when an individual employer alleges that other, lower members of
management made day-to-day operational decisions.
Hatmaker v. PJ Ohio, LLC, No. 3:17-cv-146, 2019 WL 1367663, at *4 (S.D. Ohio
Mar. 26, 2019).
The FLSA, 29 U.S.C. § 203(d), defines an “employer” to include “any
person acting directly or indirectly in the interest of the employer in relation to the
employee.” See Dole v. Elliot Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir.
1991). More than one “employer” can be simultaneously responsible for FLSA
obligations. Id. “The remedial purposes of the FLSA requires the courts to define
‘employer’ more broadly than the term would be interpreted in traditional common
law applications.” Id. The question of “[w]hether a party is an employer within the
meaning of the FLSA is a legal determination.” Id
“[T]he test to be applied in determining whether a person is an ‘employer’
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responsible for FLSA obligations is one of ‘economic reality,’ rather than “common
law concepts of agency.” Fegley v. Higgins, 19 F.3d 1126, 1131 (6th Cir. 1994).
Under this “economic reality test,” a corporate officer who has operational control
of the corporation’s covered enterprise is an ‘employer’ under the FLSA, along
with the corporation itself.” U.S. Dep’t of Labor v. Cole Enterprises, Inc., 62 F.3d
775, 778 (6th Cir. 1995). More specifically, “[o]ne who is the chief executive
officer of a corporation, has a significant ownership interest in it, controls
significant functions of the business, and determines salaries and makes hiring
decisions has operational control and qualifies as an ‘employer’ for the purposes of
Determining whether a person is an “employer” under the FLSA necessarily
involves an inquiry into an alleged employer’s relationship with the company and
its employees. This question is determined by the specific facts of each case. See
Keeton, 2011 WL 2618926, at *2. The determination of an “employer” under the
FLSA involves a broad analysis that is determined by the totality of the
circumstances. See, e.g., Martin v. W.E. Monks Co., 805 F. Supp. 500, 502 (S.D.
In determining whether a party is an employer, “[n]o one factor is
dispositive; rather, it is incumbent upon the courts to transcend traditional concepts
of the employer-employee relationship and assess the economic realities presented
by the facts of each case.” Dole, 942 F.2d at 965. “The ‘economic realities’ test is
multi-factored and a loose formulation, resulting in a case-by-case resolution based
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on the totality of the circumstances.” Keeton, 2011 WL 2618926, at *2.
Under nearly identical circumstances in Hatmaker v. PJ Ohio, LLC, this
Court held, “[b]ecause it is Defendants’ position that [the individual defendants]
are not liable under the FLSA, the emails are relevant to prove that the individual
defendants had sufficient operational control to violate wage and hour laws.” Id.,
No. 3:17-cv-146, 2020 U.S. Dist. LEXIS 178298, at *3-4 (S.D. Ohio Sept. 28,
2020) (compelling the production of all relevant emails in the individual
defendants’ email mailboxes in a similar pizza delivery driver case).
Plaintiff contends that Defendants are individually liable as “employers”
under the FLSA. Plaintiff alleges that Pete Marrocco is the owner and operator of
all Defendant entities and exerts significant control over the operations of
Defendants’ Jet’s Pizza stores (Complaint, Doc. 1 at ¶¶ 75-91). Likewise, Plaintiff
alleges that Rosemary Marrocco is the owner and operator of all Defendant entities
and exerts significant control over the operations of Defendants’ Jet’s Pizza stores
(Complaint, Doc. 1 at ¶¶ 92-108). Defendants, on the other hand, dispute that Pete
Marrocco qualifies as an “employer.”
The majority of emails between Jake Kogelman and third parties, copy
“email@example.com,” who, in an email dated June 25, 2018, Jake Kogelman
referred to as “Pete.” Declaration of Nathan Spencer (“Spencer Decl.”), Doc.65-1
at ¶ 6. Of the emails produced, only a few of them were received from Pete
Marrocco. Id. at ¶ 7 All emails from the Marraccos relating to the pizza stores are
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The FLSA “employer” analysis inherently includes any communications to
or from an alleged individual employer and the companies’ employees and certain
third parties. Obviously, the content of the emails is relevant to the question of an
individual’s status as an “employer.” But, so too is the existence of emails going to
and from an individual employer. The existence of such emails, regardless of the
emails’ content, helps to establish a relationship between the individual and the
company. The fact that the Individual Defendants sent an email to employees or
relevant third parties is pertinent to determining whether they are employers under
the FLSA. For this reason, communications (including emails) to or from Pete
Marrocco and Rosemary Marrocco from and to employees and third parties are
Defendants object on the basis these requests are irrelevant and privileged,
and propose using search terms to narrow the request. Rule 26(b)(1) instructs the
Court to resolve proportionality considering: (1) “the importance of the issues at
stake in the action,” (2) “the amount in controversy,” (3) “the parties’ relative
access to relevant information,” (4) “the parties’ resources,” (5) “the importance of
the discovery in resolving the issues,” and (6) “whether the burden or expense of
the proposed discovery outweighs its likely benefit.” Id.
“Proportionality and relevance are ‘conjoined’ concepts; the greater the
relevance of the information in issue, the less likely its discovery will be found to
be disproportionate.” Kozak v. Office Depot, Inc., No. 16-cv-943, 2020 WL 913750,
*4 (W.D.N.Y. Feb. 24, 2020). Here, the communications pertain to a core issue in
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this case—whether Peter Marrocco is personally liable as an “employer” under the
FLSA. Communications from an alleged employer to employees and third parties
assist the employer determination. Emails and text messages from Marrocco to his
subordinate managers are relevant because they show the extent of his role in the
operations of each Defendant entity.
One of the key effects of the FLSA’s inclusion of individuals under the
FLSA’s broad definition of “employer” is that a company cannot use a corporate
shield or bankruptcy to walk away from minimum wage obligations. In situations
where a company’s finances are on shaky footing, holding corporate officers and
owners liable is as important as proving the underlying claims. Plaintiff asserts his
best chance for collecting even a portion of their unpaid wages may rest on holding
the Individual Defendants liable as employers. Thus, it is important to determine
who is liable for any potential judgment in this case. Accordingly, the issue of who
will be liable is important in this lawsuit, as is the discovery related thereto.
The second factor is the amount in controversy. While there is no precise
calculation of damages, based on the information available, Plaintiff estimates
millions of dollars in damages are at stake in this case.
As to the Parties’ relative access to relevant information, Defendants appear
to have sole access to this information. This factor supports Defendants’ production
of each Individual Defendants’ emails.
The “inequality in the parties’ resources” factor also favors Plaintiff.
Plaintiff and the Rule 23 class are a group of low-wage pizza delivery drivers.
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Defendants run a restaurant operation. Defendants own five Jet’s Pizza stores.
Thus, the parties’ relative resources support a finding that the discovery sought is
Next, the Court considers whether the burden or expense of the proposed
discovery outweighs its likely benefit. The parties dispute whether Marrocco
qualifies as an “employer.” This appears to be a central issue in this case. The FLSA
recognizes the value of this distinction because it holds “employers” liable. In this
context, communications from an alleged employer to employees and third parties
are relevant to the economic reality factors. Further, the fact that communications
even exist is pertinent to the employer question. The benefit of this information is
significant, and its burden is insignificant in light of the issues at stake.
All six factors weigh in favor of a review and production of each Individual
Defendant’s emails. Thus, the will Court compel Defendants to produce responsive
Finally, Defendants assert that the spousal communication privilege
“protects information privately communicated between a husband and wife in the
confidence of a valid marital relationship.” United States v. Walton, No. 91-5064,
1991 WL 209480, at *5 (6th Cir. Oct. 17, 1991) (citing Trammel v. United States,
445 U.S. 40, 51 (1979)); see also United States v. Porter, 986 F.2d 1014, 1018 (6th
Cir. 1993) (“The confidential marital communications privilege excludes
confidential communications made by one spouse to the other during the
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As Plaintiff points out, spousal privilege does not apply in this case because
Pete and Rosemary Marrocco used a joint email account, and thus were not
communicating with one another directly. (Pl.’s Mot. to Compel, at 4). However,
Plaintiff’s Request for Production seeks “[a]ll emails and text messages sent
to/from Peter Marrocco and/or Rosemary Marrocco[.]” (Id., Ex. 1, p. 14). The
request for text messages does seek confidential correspondence between Pete and
Rosemary Marrocco, and the production of these will be denied.
Plaintiff’s Motion to Compel Discovery Responses, ECF 62, is GRANTED IN PART.
The Individual Defendants must produce their work emails related to the operation of
Defendants’ Jet’s Pizza operation. Text messages between Pete and Rosemary Marrocco are
exempt from this order.
Also before the Court is Plaintiff’s Motion for Extension of Deadline to File Response to
Defendants Peter Marrocco and PRM Management, LLC’s Motion for Summary Judgment Doc.
64. This motion is unopposed. Doc. 66. Because Plaintiff required resolution of the Motion to
Compel to respond to Defendants’ Motion for Summary Judgment, this motion will also be
granted. Plaintiff’s Motion for Extension of Deadline to File Response to Defendants Peter
Marrocco and PRM Management, LLC’s Motion for Summary Judgment, Doc. 64, is
GRANTED. Plaintiff is granted until January 14, 2022 to file a response to the pending motion
for summary judgment.
DONE and ORDERED in Dayton, Ohio, this Thursday, November 18, 2021.
s/Thomas M. Rose
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THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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