Murphy v. Kettering Adventist Healthcare d/b/a Kettering Health Network et al

Filing 42

ENTRY AND ORDER denying 37 Defendants' Motion for Reconsideration and finding as moot 41 Plaintiff's Motion for Leave to File Response to Defendants' Motion to Stay or Extend Deadline to Produce List of Potential Opt-In Plaintiffs. Defendants shall provide Murphy with a list of current and former employees within the scope of the 18 Entry and Order Granting Plaintiff's Motion for Court-Facilitated Notice to Potential Opt-In Plaintiffs, on or before Friday, November 17, 2023. Signed by Judge Thomas M. Rose on 11/14/2023. Signed by Judge Thomas M. Rose on 11/14/2023. (csm)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
AMY MURPHY, on behalf of herself and all :
others similarly situated,
:
:
Plaintiff,
:
:
v.
:
:
KETTERING ADVENTIST HEALTHCARE, :
et al.,
:

Case No. 3:23-cv-69
Judge Thomas M. Rose
Magistrate Judge Peter B. Silvain, Jr.

Defendants.
______________________________________________________________________________
ENTRY AND ORDER DENYING DEFENDANTS’ MOTION FOR
RECONSIDERATION (DOC. NO. 37)
______________________________________________________________________________
Presently before the Court is Defendants’ Motion for Reconsideration (“Motion”) (Doc.
No. 37).

In the Motion, Defendants Kettering Adventist Healthcare (“KAH”) and Dayton

Osteopathic Hospital, Inc. (“DOHI”) (collectively, “Defendants”) ask this Court to reconsider its
Entry and Order Granting Plaintiff’s Motion for Court-Facilitated Notice to Potential Opt-In
Plaintiffs (“Order”) (Doc. No. 34) pursuant to Fed. R. Civ. P. 54(b). (Doc. No. 37 at PageID 421.)
Defendants specifically argue that the Order imposes a manifest injustice by denying Defendants
a short period of discovery and by permitting Plaintiff Amy Murphy (“Murphy”) to send opt-in
notices to employees of facilities Defendants allege are non-parties. (Id. at PageID 426-34.)
For the reasons explained below, the Court DENIES the Motion.
I.

BACKGROUND
Murphy is a registered nurse (“RN”) who was employed in Dayton, Ohio by Kettering

Health Dayton—formerly known as Grandview Hospital—from February 2019 to December

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2022. (Doc. Nos. 18-2 at PageID 110; 32-1 at PageID 278-79.) During her time with Kettering
Health Dayton, Murphy worked in the Emergency Department. (Doc. No. 32-1 at PageID 279.)
In addition to Murphy, three additional nurses have filed consent forms to opt-in as
plaintiffs in this action. Tara Latimore (“Latimore”) was employed by Kettering Medical Center
as a RN from approximately August 5, 2002 to January 1, 2022. (Doc. Nos. 18-3 at PageID 114;
32-1 at PageID 279.) Latimore worked as an Administrative Nursing Supervisor at Soin Medical
Center in Beavercreek, Ohio. (Doc. No. 32-1 at PageID 279.) Pamela Lawner (“Lawner”) was
also a RN and worked at Kettering Health Main Campus in the Neonatal Intensive Care Unit.
(Doc. Nos. 18-4 at PageID 118; 32-1 at PageID 279.) Lawner was employed by Kettering Medical
Center from September 11, 1972 to May 5, 2021. (Doc. No. 32-1 at PageID 279.) Finally, Jessica
Walker (“Walker”) was a Certified Medical Assistant at Kettering Health Greene Memorial in
Xenia, Ohio for approximately one year. (Doc. Nos. 18-5 at PageID 123; 32-1 at PageID 279.)
Walker worked primarily for Allied Physicians, Inc. in a primary care physicians office. (Doc.
No. 32-1 at PageID 279.)
KAH, in turn, is a non-profit corporation that exercise management and oversite over the
business operations of the Seventh-Day Adventist Church Healthcare Ministry in the Greater
Miami Valley. (Doc. No. 32-1 at PageID 277-78.) DOHI is an Ohio non-profit corporation that
owns and operates Kettering Health Dayton and Kettering Health Washington Township. (Id. at
PageID 278.)
Plaintiff filed her Complaint on March 6, 2023. (Doc. No. 1.) On May 12, 2023, Plaintiff
filed Plaintiffs’ First Amended Collective and Class Action Complaint (“Amended Complaint”)
alleging a collective action claim for unpaid overtime under the FLSA (Doc. No. 14). On June 12,
2023, Plaintiff’s Motion for Court-Facilitated Notice to Potential Opt-In Plaintiffs was filed. (Doc.

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No. 18.) Murphy sought to facilitate notice to a group of potential opt-in plaintiffs comprised of:
All current and former hourly, non-exempt healthcare employees of Defendants
who were paid for at least forty (40) hours of work in any workweek that they had
a meal break deduction applied to their hours worked beginning June 12, 2020 and
continuing through the final disposition of this case.
(Doc. No. 18 at PageID 84.) The Court granted the motion for court-facilitated notice on October
5, 2023. (Doc. No. 34.)
On October 16, 2023, Defendants filed the present Motion. (Doc. No. 37.) Murphy filed
her opposition on October 27, 2023 (Doc. No. 38), and Defendants filed their reply on November
3, 2023 (Doc. No. 39). This matter is fully briefed and ripe for review and decision.
II.

STANDARD OF REVIEW
District Courts have the authority under common law and Fed. R. Civ. P. 54(b) to

reconsider an interlocutory order prior to final judgment. Rodriguez v. Tenn. Laborers Health &
Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004). However, “‘courts will [only] find
jurisdiction for reconsidering interlocutory orders where there is (1) an intervening change of
controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent
manifest injustice.’” Dunham v. Sheets, No. 1:13-cv-226, 2015 U.S. Dist. LEXIS 61330, at *4,
2015 WL 2194755, at *2 (S.D. Ohio May 11, 2015) (quoting Louisville/Jefferson Cnty. Metro
Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009)). “To establish manifest injustice a
moving party must ‘show that there exist[s] a fundamental flaw in the court’s decision that without
correction would lead to a result that is both inequitable and not in line with applicable policy.’”
Gibson v. Yaw, No. 1:22-cv-773, 2023 U.S. Dist. LEXIS 62130, at *7, 2023 WL 2837200, at *3
(S.D. Ohio Apr. 7, 2023) (quoting United States v. Carney, No. 3:21-cv-98, 2022 U.S. Dist. LEXIS
39503, at *4, 2022 WL 678648, at *2 (W.D. Tenn. Mar. 4, 2022), adopted by, Gibson v. Yaw, No.
1:22-cv-773, 2023 U.S. Dist. LEXIS 92364, 2023 WL 3652386 (S.D. Ohio Apr. 7, 2023)).
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“Furthermore, a court will not find manifest injustice when the moving party simply reargues the
issues that were not previously successful.” Nayyar v. Mt. Carmel Health Sys., Nos. 2:10–cv–135,
2:12–cv–189, 2014 U.S. Dist. LEXIS 19916, at *7, 2014 WL 619394, at *3 (S.D. Ohio Feb. 18,
2014) (citing Render v. Forest Park Police Dept., No. 1:07-cv-489, 2009 U.S. Dist. LEXIS 61344,
2009 WL 2168783 (S.D. Ohio July 26, 2009)).
Plaintiffs do not contend that there has been a change in law or that new evidence has
come to light, therefore, the Court will look to whether there is “a need to correct a clear error or
prevent manifest injustice.”
III.

ANALYSIS
Defendants argue that the Court’s Order is flawed in two respects. First, Defendants argue

that the Order imposes a manifest injustice in not permitting the parties a limited period of
discovery on the similarly situated inquiry. (Doc. No. 37 at PageID 426.) Second, Defendants
contend that the Order imposes a manifest injustice by allowing notice to non-healthcare
employees and to employees of non-defendants. (Id. at PageID 431.)
A. Reconsideration of the Limited Discovery Period
Defendants argue extensively that the Court has run afoul of Clark by not permitting the
Parties to engage in a limited period of discovery on the similarly situated inquiry. (Doc. No. 37
at PageID 429.) Indeed, they cite heavily to the decision in Cordell for the proposition that the
Court must permit discovery and a failure to do so would be a manifest injustice. (Id. at PageID
427-29.) In response, Murphy argues that Defendants have reread Clark to require discovery,
while, in fact, the district court retains discretion to order discovery. (Doc. No. 38 at PageID 443.)
In reply, Defendants argue that Clark and the subsequent district court decisions show that
discovery should usually occur given its similarities to the preliminary injunction standard. (Doc.

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No. 39 at PageID 463-64.)
“[A] district court may promptly initiate discovery relevant to the motion, including if
necessary by ‘court order.’” Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003, 1011
(6th Cir. 2023) (citing Fed. R. Civ. P. 26(d)(1)). Therefore, control over discovery in FLSA notice
actions remains soundly within the purview of the district court. Cordell v. Sugar Creek Packing
Co., No. 2:21-cv-00755, 2023 U.S. Dist. LEXIS 160746, at *8, 2023 WL 5918753, at *3 (S.D.
Ohio Sept. 11, 2023).
Defendants’ reply asserts that they have never argued that a district court is required to
order discovery “100% of the time.” (Doc. No. 39 at PageID 463-64.) However, Defendants
interpretation of Clark essentially seeks to transfer the holding that, “a district court may promptly
initiate discovery,” into a must. Clark, 68 F.4th at 1011 (emphasis added). Indeed, as the Cordell
court found when interpreting this very language from Clark, “[n]ote first that this does not require
district courts to permit or order discovery, and certainly not expedited discovery. Rather, it simply
re-affirms that district courts have the authority to do so.” Cordell, 2023 U.S. Dist. LEXIS 160746,
at *8, 2023 WL 5918753, at *3.
The Court rejects Defendants’ proposition that courts in the wake of Clark must err on the
side of ordering discovery. Indeed, the difference between this case and Cordell emphasizes why
a court may justifiably reject a request for a limited discovery period. In Cordell, the plaintiff set
out specifically what it was looking for in the limited period of discovery, such as timekeeping and
payroll records among other information about employees at the defendant’s facilities within a
three-year period. Cordell, 2023 U.S. Dist. LEXIS 160746, at *7-18, 2023 WL 5918753, at *3-6.
Moreover, several of the cases cited by Defendants similarly demonstrate that the parties agreed
to a period of limited discovery and identified specific areas of targeted discovery for the court’s

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consideration. See McCall v. Soft-Lite LLC, No. 5:22-cv-816, 2023 U.S. Dist. LEXIS 133548, at
*16-24, 2023 WL 4904023, at *6-9 (N.D. Ohio Aug. 1, 2023) (the parties agreed to a limited
period of discovery and identified specific areas of discovery); McElroy v. Fresh Mark, Inc., No.
5:22-cv-287, 2023 U.S. Dist. LEXIS 133551, at *15-24, 2023 WL 4904065, at *7-10 (N.D. Ohio,
Aug. 1, 2023) (the parties agreed on the need for a limited period of discovery and identified
specific areas of discovery); Jones v. Ferro Corp., No. 1:22-cv-00253, 2023 U.S. Dist. LEXIS
118415, at *13-19, 2023 WL 4456815, at *4-6 (N.D. Ohio, July 11, 2023) (the parties agreed on
the need for a limited period of discovery and identified specific areas of discovery); see also
Rashad v. Mason’s Pro. Cleaning Serv., LLC, No. 2:22-cv-2635, 2023 U.S. Dist. LEXIS 139807,
at *12, 2023 WL 5154534, at *4 (W.D. Tenn. Aug. 10, 2023) (“However, at this point, [the
plaintiffs] have not moved for such discovery nor offered the [c]ourt any proposed terms of said
discovery…”).
As the Court found in its Order, “Defendants identify no real area for targeted discovery
beyond obtaining ‘more facts regarding the likelihood of similarity or dissimilarity among the
proposed collective.’” (Doc. No. 34 at PageID 393 (citing Doc. No. 32 at PageID 269).) While it
is certainly true that courts have viewed the heightened standard in Clark as a reason to permit
parties the opportunity to engage in limited discovery, it is not a mandate to the district courts to
require discovery if either party simply invokes the word. Defendants seek a period of discovery,
which Murphy opposed, with no definitive aim. The danger of such a proposition is that the Court
may necessarily become involved in discovery to settle disputes over scope and ultimately
prejudice one or both of the parties through avoidable delays. The Court is not inclined to allow
defendants in FLSA cases to go on boundless fishing expedition that run the risk of driving up the
parties’ costs or delaying prompt adjudication of court-facilitated notice motion.

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Therefore, the Court finds that no manifest injustice has occurred.
B. Reconsideration of the Scope of the Notice
Defendants next argue that the Court imposed a manifest injustice by approving a notice
to non-healthcare employees and those who have never worked for either Defendant. (Doc. No.
37 at PageID 431.) Defendants argue that the Order includes employees of entities that are not
parties to this case and that the Court should, “modify the Order to authorize notice only to
healthcare employees of DOHI.” (Id. at PageID 432-33.) Defendants contend that “KAH does
not employ healthcare employees, and as to any other non-party entity, the joint employer issue
must be decided before authorizing notice.” (Id. at PageID 434.) In response, Murphy argues that
Defendants motion seeks only to dispute the Court’s interpretation of the caselaw and that she has
alleged that KAH is the parent organization for the hospitals and other facilities where the violative
conduct occurred. (Doc. No. 38 at PageID 452-53.) In reply, Defendants argue that they have
rebutted Murphy’s argument that KAH is a parent company and Murphy has failed to meet the
strong likelihood standard defined in Clark. (Doc. No. 39 at PageID 466.)
As the Court discussed in the Order, two of the cases cited by Murphy in her motion defer
an evaluation of the “joint employer” question to the second stage of the court-facilitated notice
inquiry “with the caveat that the notice stage applies a ‘fairly lenient’ standard.” (Doc. No. 34 at
PageID 390 (citations omitted).) However, the Court was persuaded by a separate line of caselaw
finding that the “joint employer” question is a merits inquiry. (Id.)
While the vast majority of cases evaluating this question are pre-Clark, the Court still views
these cases as informative for the question at hand. Indeed, multiple courts in this circuit have
found, without reference to the then existing “lenient” standard, that the questions of whether the
defendants are joint employers is premature at the initial stage because it is a merits-based

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argument. See Adams v. Central Ohio Elderly Care, LLC, No. 2:18-cv-134, 2018 U.S. Dist.
LEXIS 240443, at *15-16, 2018 WL 11188054, at *5 (S.D. Ohio Oct. 23, 2018); see also Sholtz
v. Emergency Med. Transp., Inc., No. 5:20-cv-2328, 2021 U.S. Dist. LEXIS 199550, at *6-7, 2021
WL 4756994, at *2-3 (N.D. Ohio Apr. 22, 2021) (finding that it was premature to decide the joint
employer question because it calls for consideration of the merits).
Regardless of whether this is a merits inquiry, there is sufficient evidence to warrant notice
under the circumstances. As Defendants’ cited case, Tate v. Greif, Inc., No. 2:21-cv-5099, 2022
U.S. Dist. LEXIS 193827, 2022 WL 13939902 (S.D. Ohio Oct. 24, 2022), demonstrates, “courts
have conditionally certified collectives that included employees from subsidiaries or related
entities that were not named defendants.” 2022 U.S. Dist. LEXIS 193827, at *5-7, 2022 WL
13939902, at *2.
The declaration of Kettering Network Services Director of Human Resources, Peggy Smith
(“Smith”), demonstrates that at least three of the facilities in question, DOHI, Kettering Medical
Center, and Alliance Physicians, Inc., employ the same requirements for breaks and use the same
timekeeping system. (Doc. No. 32-1 at PageID 279-81.) Moreover, Smith’s declaration states,
“KAH exercises management and oversight of the mission and business operations of the SeventhDay Adventist Church Healthcare Ministry in the Greater Miami Valley.” (Id. at PageID 278.)
Defendants argue that this rebuts the contention that KAH is a parent company (Doc. No. 39 at
PageID 466), but the Court drew the opposite conclusion. “[M]anagment and oversight” would
indicate a company whose position is above and in command of those below. Indeed, as the Court
found in its Order, the fact that KAH obtained declarations from employees at multiple facilities
regarding their break systems lends itself to the finding that it exerts some control over those
facilities.

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Simply put, whether KAH is a “joint employer” is a merits determination and the Court
sees no manifest injustice in this finding. Regardless, there is sufficient information before the
Court to warrant a finding, that there is a strong likelihood that the unnamed facilities in questions
are either subsidiaries or related entities to the extent that providing notice to these facilities is
appropriate at this stage. See Tate, 2022 U.S. Dist. LEXIS 193827, at *5-7, 2022 WL 13939902,
at *2.
Therefore, the Court finds that no manifest injustice has occurred.
IV.

CONCLUSION
For the reasons stated above, the Court DENIES Defendants’ Motion for Reconsideration

(Doc. No. 37). Defendants shall provide Murphy with a list of current and former employees
within the scope of Entry and Order Granting Plaintiff’s Motion for Court-Facilitated Notice to
Potential Opt-In Plaintiffs (Doc. No. 18), on or before Friday, November 17, 2023. The Court
further finds that Plaintiff’s Motion for Leave to File Response to Defendants’ Motion to Stay or
Extend Deadline to Produce List of Potential Opt-In Plaintiffs (Doc. No. 41) is MOOT.
DONE and ORDERED in Dayton, Ohio, this Tuesday, November 14, 2023.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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