White et al v. Publix Super Markets, Inc.

Filing 62

INITIAL CASE MANAGEMENT ORDER signed by Magistrate Judge Joe Brown on 8/7/2014. Counsel should read the order in its entirety for all deadlines and information. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
APRIL WHITE and BRUCE BOGACH,
individually, and on behalf of all others similarly
situated,
Plaintiffs

Case 3:14-1189
Judge Campbell/Brown
Jury Demand

v.
PUBLIX SUPER MARKETS, INC.,
Defendant
INITIAL CASE MANAGEMENT ORDER
An Initial Case Management Conference in the above-titled action was held on Monday,
July 21, 2014, and was subsequently continued (see Docket No. 60) to Monday, August 4. 2014
at 2:00 pm. Pursuant to Local Rule 16.01, as well as this Court’s July 22, 2014 Order (Docket
No. 60) and the instructions given by the Court at the July 21, 2014 case management
conference, Plaintiffs April White and Bruce Bogach (“Plaintiffs”) and Defendant Publix Super
Markets, Inc. (“Publix”) submitted a Proposed Initial Case Management Order, which the
Magistrate Judge has modified as a result of the initial case management conference.
1.

Jurisdiction and Venue

Plaintiffs bring this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 216(b). Publix
does not dispute that this Court has jurisdiction over Plaintiffs’ claims or that the Middle District
of Tennessee is a proper venue.
2.

Plaintiffs’ Theory of the Case

Plaintiffs, individually and on behalf of all similarly situated employees classified as
hourly associates by Publix, assert that Publix’s pay policies, practices and procedures resulted in
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wide-spread, systemic violations of the overtime provisions of the FLSA by failing to pay hourly
associates overtime compensation at time and a half their correctly calculated regular rates
(inclusive of all non-excludable compensation) for each overtime work week. Publix excluded
certain compensation from the calculation of the applicable overtime regular rate for all hourly
associates (e.g. Holiday Bonus, Holiday Pay, Tuition Reimbursement, etc), which did not meet
the requirements for exclusion from the regular rate calculation. Plaintiff has moved for the
Court to permit this case to proceed as a collective action pursuant to 29 U.S.C. § 216(b) and
order Publix to produce the names and contact information of the prospective class members so
that notice may be sent to apprise these individuals of their rights to join this collective action.
3.

Defendant’s Theory of the Case

Publix asserts that Plaintiffs’ claims fail because Publix properly excluded Holiday
Bonus, Holiday Pay, retail bonus payments, and other payments at issue from the regular rate
calculations for its Hourly Associates. See, e.g., 29 U.S.C. § 207(e); 29 C.F.R. § 778.210; 29
C.F.R. § 778.212; 29 C.F.R. § 778.219. Plaintiffs also are not entitled to conditional or final
certification, or to Court-facilitated notice, under 29 U.S.C. § 216(b) because the prospective optins are not similarly situated to the Plaintiffs and the Plaintiffs cannot adequately represent the
interests of the potential opt-in parties.
4.

Identification of the Issues

As discussed above, the issues of liability and damages are in dispute, as is the issue of
whether this case can be maintained as a collective action under 29 U.S.C. § 216(b).
5.
Need for Other Claims or Special Issues Under Rules 13-15, 17-21, and
Rule 23 of the Federal Rules of Civil Procedure
The parties do not anticipate any need for other claims or special issues under Rules 1315, 17-21, and Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs, however, have moved

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for conditional certification of their FLSA claims pursuant to 29 U.S.C. § 216(b).

Publix

anticipates that, if Plaintiffs’ conditional certification motion is granted in whole or in part,
Publix will move to decertify any conditionally-certified class.
6.

Witnesses, if Known, Subject to Supplementation by Each Party

The parties are in the process of identifying witnesses in this matter and will disclose
witnesses in their Rule 26(a) initial disclosures.
7.

Initial Disclosures, Staging of Discovery and Dispositive Motions
a.

Rule 26(a)(1) Initial Disclosures

The parties shall make their Rule 26(a)(1) initial disclosures on or before August 18,
2014. In their initial disclosures, Plaintiffs shall provide the method of computing damages but
need not provide the actual number of overtime hours at issue and the actual calculations of
overtime damages until such time that Publix produces payroll records of the hours worked by
Plaintiffs.
b.

Staging of Discovery and Dispositive Motions

1. Tolling of Statute of Limitations: The Statute of Limitations is tolled, from the
date of the filing of the Complaint, as to any Publix employee classified as an
Hourly Associate and who worked more than 40 hours (i) in any workweek in the
three years prior to the filing of the Complaint or (ii) in any workweek subsequent
to the filing of the Complaint.
Such tolling shall continue until the Court sets an end date at the request of
a party.
2. Initial Period of Discovery: An initial period for fact discovery will commence
following the exchange of initial disclosures on August 18, 2014, and conclude
on December 19, 2014. Such discovery shall be limited to issues regarding the
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manner in which Defendant calculates the regular rate of pay for Hourly
Associates, and the policies and practices governing any form of remuneration
which Defendant does not include in calculating the regular rate, including any
facts relevant to the issue of whether such remuneration should be included in
calculating the regular rate. That is, this discovery shall encompass, with regard
to Hourly Associates, compensation policies and practices, all forms of
remuneration provided, what remuneration is included and what excluded from
the regular rate of pay, and the application of all written and unwritten pay
practices and policies that effect the calculation of the regular rate.
3. Disclosure of Witnesses: During the initial discovery period, there will be no
discovery of opt-in plaintiffs; discovery will be focused on issues of the manner in
which Defendant calculates the regular rate of pay for Hourly Associates. Neither
party shall use testimony and/or declarations of any person in support of, or in
opposition to, any summary judgment motion as to the manner in which the
regular rate is calculated, unless the names of such persons are disclosed no later
than 45 days prior to the deadline for completion of the initial discovery period.
To the extent any persons are disclosed, the opposing party is permitted to depose
such persons, to the extent permitted by the Federal Rules of Civil Procedure.
4. Communications with Potential Class Members
Both parties have stated they have no intention of communicating with potential
parties about the merits of this case. Plaintiff and Defendant’s counsel are
permitted to communicate with potential class members regarding the instant case
to the extent allowed by governing case law and the Fair Labor Standards Act.

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However, given the issues that have arisen in the related Ott case, the Magistrate
Judge would strongly urge the parties to be very cautious in communication with
potential class members and to the extent the Defendant intends to circulate
instructions to the managers about the case, they would be well advised to furnish
a copy to Plaintiffs' counsel prior to transmitting it to their managers. Should the
parties have concern about a specific communication, they may request the
Magistrate Judge to rule on the matter.
5. E-Discovery Conference & Responses to Discovery Requests: To facilitate this
initial discovery process, the parties shall have their e-discovery conference no
later than August 25, 2014, and Defendant shall notify Plaintiffs of any objections
or difficulties with written discovery within two weeks of service. Defendant
agrees to make a good faith effort to provide complete responses and documents,
as properly responsive to written discovery, within the time allotted by the
Federal Rules of Civil Procedure, and, absent unusual circumstances, shall not
seek an extension of time.
6. Deadlines for Dispositive Motions: The parties agree that the page limits
contained in the Local Rules shall apply to dispositive motions. The Defendant
will file within 28 days of the entry of this order, a bullet point outline of their
intended argument for summary judgment on the correct rate of pay. This should
be as complete as possible and must supplement if there are changes. The
Defendant will file their Motion for Summary Judgment 14 days after the close of
discovery. The Plaintiff will have 28 days for a response and the Defendant may
have 14 days for a reply.

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Should there be a substantive change from the bullet point outline to the
actual motion, the Plaintiff may request additional discovery at the expense of the
Defendant.
7. Conditional Certification & Related Briefing Deadlines: Following a ruling on
summary judgment on what is included in regular rate of pay, notice shall issue to
all persons who worked for the Defendants at any time since three years prior to
the filing of the Complaint, who were affected by the challenged compensation
practices which survive Defendants' motion for summary.
The Defendant will respond to the pending Motion for Conditional
Certification (Docket Entry 3) on or before September 12, 2014. Any reply will
be filed within 14 days of the filing of the response.
In the event the motion is granted, the notice will be prepared but not
mailed until the Court has ruled on the anticipated motion for summary judgment
on what is included in regular rate of pay. This will allow notice to be sent to only
the potential opt in plaintiffs who may have claims at that point.
8. Rule 68 Offers of Judgment. The Defendant agrees they will make no offers of
judgment until the opt tolling period ends.
9. Potential Settlement of Claims. To the extent other cases are filed against the
Defendant that encompass the claims of this litigation, the Defendant agrees to
notify Plaintiff’s counsel of such suits.
10. Address Tracing & Production of Social Security Numbers After the Court’s
decision as to the summary judgment motion referenced above, and if the Court
determines that notice should issue to some group of employees, Defendant will

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produce to Plaintiffs, subject to an appropriate confidentiality order, social
security numbers of employees to whom the Court permits issuance of notice in
order to facilitate effective tracing of new addresses for former employees.
The Magistrate Judge will reserve judgment on whether any costs of
tracing potential opt in plaintiffs should be transferred to the Defendant until the
record is better developed.
11. Following the Court’s ruling on Defendant’s dispositive motion referenced in
Section 7(b)(6), the Court shall conduct a subsequent case management
conference to set further deadlines for the balance of discovery, any further
motions, and other case management deadlines.
12. Defendant will ensure preservation of data reflecting names, addresses, telephone
numbers, email addresses, or any other contact information regarding any
potential class member, along with all payroll records and records of hours
worked for such individuals.

Defendant agrees that such data will remain

reasonably accessible for purposes of production. See Fed. R. Civ. P. 26(b)(2)(B)
(“A party need not provide discovery of electronically stored information from
sources that the party identifies as not reasonably accessible because of undue
burden or cost.”).
13. Prior to filing any discovery-related motions, the party will schedule and conduct
a telephone conference with the Magistrate Judge. The counsel requesting the
conference call shall check with opposing counsel as to their availability before
setting a time certain with the Magistrate Judge.

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8.

Dispositive Motions

See Section 7(b)(7) above. Other dispositive motion deadlines will be set at a
subsequent case management conferece.
9.

Other Deadlines

The deadline for Amending Pleadings, absent good cause shown, shall be August 29,
2014. The deadline for adding named parties, absent good cause shown, shall be August 29,
2014. This deadline shall not apply, however, to opt-in plaintiffs who will be governed by the
Court’s order on Notice.
10.

Electronic Discovery

The default standard contained in Administrative Order No. 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 Ediscovery coordinator for Defendant will be Brent Knight.
11.

Subsequent Case Management Conference

A subsequent case management conference will be set within 30 days of the Court’s
ruling on Plaintiffs’ Motion for Conditional Certification and Notice or Defendant’s
anticipated dispositive motions, whichever comes first.
12.

Alternative Dispute Resolution

The Magistrate Judge does not believe alternative dispute resolution would be beneficial
until such time as the parties have obtained rulings on conditional class certification and notice
and the anticipated motion concerning the regular rate of pay. The Magistrate Judge, of course,
remains available for assistance with alternative dispute resolution at any point.
13.

Consent to trial before the Magistrate Judge

The parties do not consent to trial before the magistrate judge.

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14.

Target Trial Date

A trial date will be recommended at the end of the next case management conference.
It is so ORDERED.
__________________________
JOE B. BROWN
United States Magistrate Judge

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