BLAND et al v. PNC BANK, N.A.
Filing
184
MEMORANDUM ORDER DENYING 173 Motion to Deem Requests for Admission to be Admitted; and GRANTING IN PART AND DENYING IN PART 175 Motion for Protective Order. Signed by Judge Arthur J. Schwab on 9/26/16. (eet)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LEMUEL BLAND, ET AL.,
Plaintiffs,
v.
15cv1042
ELECTRONICALLY FILED
LEAD CASE
PNC BANK, N.A., and THE PNC
FINANCIAL SERVICE GROUP, INC.
Defendants.
MEMORANDUM ORDER RE: DEFENDANTS’ MOTION TO DEEM REQUESTS FOR
ADMISSION TO BE ADMITTED AND PLAINTIFFS’ CROSS-MOTION FOR A
PROTECTIVE ORDER LIMITING DISCOVERY FROM OPT-IN PLAINTIFFS
On August 7, 2015, Plaintiffs filed an individual, class, and collective action complaint
(doc. no. 1), alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et
seq.; the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. § 333.101, et seq.; and the
Pennsylvania Wage Payment and Collection Law (“WPCL”), 43 P.S. § 260.1, et seq. by
Defendant PNC Bank, N.A. (“PNC”). The Court conditionally certified the FLSA collective
action and ordered that notice be sent to potential collective action members on November 25,
2015. Doc. No. 53.
Civil action 15cv1700 (the “Gokhberg action”) was then consolidated with this action.
Doc. No. 74. The Complaint was amended to include all claims of all parties against all
Defendants, and additional state law class action claims were asserted by Plaintiffs. Doc. No.
127.
From the onset of this action, the Court has encouraged the Parties to work together
towards streamlining the potential issues in this case. Now pending before the Court is a
discovery dispute, filed with just over one-month remaining before the discovery period ends and
motions for summary judgment and decertification are due. See Doc. Nos. 125; 173; and 175.
I.
Defendants’ Motion to Deem Requests for Admission to be Admitted
On September 16, 2016, Defendants filed a Motion asking the Court to deem admitted six
Requests for Admission served upon Plaintiffs’ Counsel, directed to each of the approximately
1100 opt-in Plaintiffs. Doc. No. 173. Defendants contend that service of the requests for
admissions was made on August 12, 2016. Id. and Doc. No. 173-3 (a certificate of service
attesting that service of “a true and correct copy” was made on Plaintiffs’ Counsel “by electronic
mail” on August 12, 2016). Defendants argue that September 15, 2016 was, therefore, the
deadline for responses to the requests for admissions. Doc. No. 183.
Plaintiffs’ Counsel responds that electronic mail service was not made on August 12,
2016, but that Plaintiffs’ Counsel was actually only able to access the discovery documents via a
password-protected secure website on August 16, 2016 after informing Defendants’ Counsel that
they were not able to login to the website. Doc. No. 176. Plaintiffs’ Counsel argues that the due
date for the discovery requests was thus September 19, 2016 - - accounting for actual service
made on August 16, 2016 and applying the “3-day mailing rule” of Fed. R. Civ. P. 26(c). Id.
Plaintiffs’ Counsel states that responses to the discovery requests for 96 opt-in Plaintiffs and
objections for the remaining approximately 1,000 opt-in Plaintiffs were delivered to Defendants’
Counsel on September 19, 2016. Id.
Defendants did not serve a “true and correct copy” of the discovery requests on Plaintiffs’
Counsel on August 12, 2016 - - instead Defendants transmitted a message to Plaintiffs’ Counsel
with further instructions regarding how Plaintiffs’ Counsel could obtain the “true and correct
copy” of the requests. See Doc. No. 175-4. The Court finds that Plaintiffs’ Counsel have
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adequately shown that service of the discovery requests was not actually made until August 16,
20161 and that the due date for such requests was September 19, 2016, consistent with Rule
26(c). Accordingly, the Court DENIES Defendants’ Motion to Deem Requests for Admission to
be Admitted.
II.
Plaintiffs’ Cross-Motion for a Protective Order Limiting Discovery From Opt-in
Plaintiffs
On September 19, 2016, the date that Plaintiffs’ Counsel calculated that discovery
responses were due and the date on which Plaintiffs responded to Defendants’ Motion to Deem
Requests for Admission to be Admitted, Plaintiffs moved for a protective order to limit
Defendants’ discovery to the responses from the 96 opt-in Plaintiffs. Doc. No. 175.
In support of their Cross-Motion, Plaintiffs cite to Fed. R. Civ. P. 26 which provides
limitations on discovery that is “unreasonably cumulative or duplicative” or exceeds that which
is “proportional to the needs of the case” and to numerous FLSA cases in which district courts
have limited discovery to some percentage of the total number of opt-in plaintiffs. See Doc. No.
176, p. 5 (collecting cases). Plaintiffs’ Counsel also estimates that it required 2-5 hours to
“contact, communicate with, draft, and confirm each opt-in plaintiffs’ responses to Defendants’
Requests for Admission and Production of Documents, and to obtain verifications of each
Plaintiffs’ Answers to Defendants’ Interrogatories.” Doc. No. 176, p. 8. They estimate that
completing the discovery responses for all 1,100 opt-in Plaintiffs, as requested by Defendants,
would require between 2,200 to 5,000 hours and that it would be “nearly impossible to complete
these requests prior to the expiration of the discovery deadline[.]” Id. at p. 9.
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Although Defendants argue that Plaintiffs’ Counsel-of-record in this case, Hope Pordy, accessed the discovery
requests via the secure website on August 15, 2016 (doc. no. 183-1), Attorney Pordy represents only the Plaintiffs in
the consolidated Gokhberg action.
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Federal Rule of Civil Procedure 1 commands that the court and the parties construe,
administer, and employ the Rules of Civil Procedure “to secure the just, speedy, and inexpensive
determination of every action and proceeding.” The Federal Rules Advisory Committee Notes
accompanying the 2015 Amendment to Rule 26 make clear that courts and parties are to consider
whether the scope of discovery requested in any case is proportional to the needs of the case.
Fed. R. Civ. P. 26, Advisory Committee Notes (2015). Rule 26(g) obliges the Parties to consider
the factors related to proportionality when making discovery requests and to certify that
discovery is not requested for any improper purpose - - such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation.
Plaintiffs have offered no explanation as to 1) how the 96 (our of 1,100) opt-in Plaintiffs
for which discovery responses were made were selected by Plaintiffs’ Counsel, or 2) why they
waited until the day on which responses were due to seek a protective order limiting the scope of
discovery in this case. Although the Court finds that Defendants’ discovery requests of all 1,100
opt-in Plaintiffs is unduly burdensome, cumulative, and disproportionate to the needs of the case,
the Court is reluctant to cut off Defendants’ right to seek further discovery in this case from any
of those opt-in Plaintiffs who have not yet responded because the Court cannot ensure that the
Plaintiffs who have already responded represent a random sample.
The Court will permit Defendants to select an additional 30 opt-in Plaintiffs by
September 28, 2016 to respond to the discovery requests by October 14, 2016 - - which should
permit sufficient time for Plaintiffs’ Counsel to review the requests with the chosen Plaintiffs and
allow both Parties to complete any motions for summary judgment and Defendants to complete
their motion for decertification by the October 28, 2016 deadline. Accordingly, Plaintiffs’
Cross-Motion for Protective Order is GRANTED IN PART and DENIED IN PART.
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SO ORDERED, this 26th day of September, 2016,
s/Arthur J. Schwab_______
Arthur J. Schwab
United States District Judge
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