White et al v. Publix Super Markets, Inc.

Filing 60

ORDER: ICMC was held on 7/21/2014. The Clerk will file the proposed initial case management order as the next docket entry in this case, so that those proposals will be preserved in the record. Initial case management conference will be continued to August 4, 2014, at 2:00 p.m., Courtroom 783. The parties should submit their proposed scheduling order by close of business on Friday, August 1, 2014. If the parties can agree on the order the conference will be conducted by telephone. To participate in the conference call, parties will call 615-695-2851 at the scheduled time. Signed by Magistrate Judge Joe Brown on 7/22/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
APRIL WHITE, et al.,

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Plaintiffs
v.
PUBLIX SUPER MARKETS, INC.,
Defendant

No. 3:14-1189
Judge Campbell/Brown
Jury Demand

O R D E R
The initial case management conference was held in this
matter on July 21, 2014. The parties had a proposed initial case
management order with substantially different views as to how the
case should proceed. The parties do not dispute jurisdiction and
venue. The parties do, however, disagree as to whether the various
pay plans the Defendant has violate the conditions of the Fair
Labor Standard Act. The Plaintiffs wish for the Court to permit the
case to proceed as a collective action, pursuant to 29 U.S.C. §
216(b)

and

order

Defendant

to

produce

the

name

and

contact

information for perspective class members so notice may be sent to
allow them to exercise their right to join in this collective
action.
The Defendant contends that, since Defendant properly
excludes the holiday bonuses, holiday pay, retail bonus payments,
and

other

payments

at

issue

from

the

regular

rate

of

pay

calculation, that the Plaintiffs are not entitled to conditional or
final certification or to court-facilitated notice under 29 U.S.C.

§ 216(b). The number of employees and former employees is estimated
to be somewhere in the 150,000 range.
The Plaintiffs have filed a motion to conditionally
certify the class (Docket Entry 3). The response to that motion has
been delayed pending the adoption of a case management order
(Docket Entry 56).
In the parties’ proposed initial case management order,
they have divergent opinions as to how the case should proceed. The
Clerk will file the proposed initial case management order as the
next docket entry in this case, so that those proposals will be
preserved in the record.
After discussion with counsel, the Magistrate Judge
believes that consideration must be given to some delay in sending
out the initial notification. Defendant advised that they do have
the ability to produce the contact information for these employees.
However, it will not be as simple as pushing a single button.
Additionally, the Magistrate Judge notes that the cost in sending
out notifications to 150,000 people will be substantial. Depending
on the outcome of the case one side or the other will substantially
bear that cost.
It appears to the Magistrate Judge that there is a
reasonable possibility that the size of the class can be reduced if
there are legal determinations as to whether the various pay plans
involved are appropriate as a matter of law.

2

The Defendant agrees that in view of their request for
additional time before sending out notification that the statute of
limitations shall be tolled as of the date of the filing of the
lawsuit. Thus, the delay will not affect the rights of potential
opt-in Plaintiffs as far as time limits go. The Plaintiffs do point
out that given the mobile nature of employees on the lower end of
the wage scale, that the passage of time may make contact more
difficult. There is certainly a justification for keeping any
delays as short as reasonably possible.
The Defendant agrees that the Plaintiffs are entitled to
a reasonable period of discovery in order to respond to what will
in effect be motions for summary judgment on various of the pay
plans.
The parties are directed to confer to see, if within the
guidance given in this order and at the initial case management
conference, they can agree on a schedule with fixed dates for
completion of this initial discovery and briefing of dispositive
motions

concerning

the

various

pay

plans.

The

initial

case

management conference will be continued to August 4, 2014, at 2:00
p.m., Courtroom 783. The parties should submit their proposed
scheduling order by close of business on Friday, August 1, 2014. If
the parties can agree on the order the conference will be conducted
by telephone. To participate in the conference call, parties will
call 615-695-2851 at the scheduled time.

3

The default standard contained in Administrative Order
174 shall apply to this case, however, the information described in
paragraph 2 of the order need not be exchanged until August 8,
2014. The e-discovery coordinator for Plaintiffs will be Christine
Webber and the e-discovery coordinator for Defendant will be Brent
Knight.
It is so ORDERED.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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