Thomas v. Kellogg Company et al
Filing
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ORDER denying #256 Defendants' Motion to Compel; granting in part and denying in part #257 Defendants' Motion to Compel; granting in part and denying in part #258 Defendants' Motion to Compel; signed by Judge Ronald B. Leighton.(DN)
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HONORABLE RONALD B. LEIGHTON
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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PATTY THOMAS, et al.
Plaintiffs,
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CASE NO. C13-5136 RBL
ORDER ON DEFENDANTS’
MOTIONS TO COMPEL AND
MOTION TO DEEM MATTERS
ADMITTED
v.
KELLOGG COMPANY, et al.
Defendants.
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I.
INTRODUCTION
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THIS MATTER is before the Court on Kellogg’s Motion to Deem Matters Admitted and
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two Motions to Compel [Dkts. # 256, 257, 258]. This Court conditionally certified the class in a
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prior order, and more than 800 plaintiffs have chosen to opt-in as parties to this action. This
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Court must now decide whether Kellogg should be permitted to serve individualized discovery
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requests on the entire opt-in plaintiff class, and, if so, the scope of that discovery.
The Court will subject Plaintiffs’ collective action to a stricter standard during the second
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step of the certification process, and it is clear that Kellogg intends to seek de-certification.
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Limited individualized discovery is therefore appropriate.
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ORDER ON DEFENDANTS’ MOTIONS TO COMPEL AND MOTION TO DEEM MATTERS ADMITTED - 1
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II.
BACKGROUND
The Plaintiffs—both the named plaintiffs and the opt-in class—claim Kellogg
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misclassified them as exempt employees and failed to pay them overtime wages as required by
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the Fair Labor Standards Act (“FLSA”) and various similar state statutes. Following conditional
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certification and notification to eligible employees, over 800 plaintiffs opted in to the action. The
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parties subsequently failed to negotiate an agreeable protocol by which to conduct discovery, and
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Kellogg proceeded to serve individualized discovery on the entire opt-in plaintiff class.
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Kellogg’s discovery was served directly on at least 829 opt-in plaintiffs, and included
(following a twenty-one line document/documents definition and six different context-based
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“identify” definitions) ten interrogatories, thirteen or fifteen requests for admissions (depending
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on whether the opt-in plaintiff worked for the Snacks Division, Morning Foods Division, or
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both), and eight document requests. The majority of those requests were served by May 28,
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2014. Two weeks later the Plaintiffs objected to individualized discovery generally, and to the
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burdensome nature of the requests specifically.
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Kellogg now asks the court to compel the individual answers. It also asks the Court to
“deem” the Requests for Admission admitted because many of the individual plaintiffs
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(predictably) did not timely respond. Kellogg asserts that individualized discovery is necessary
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to assess whether the opt-in plaintiffs are similarly situated as determined during the second
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stage of the two-step class certification process. The Plaintiffs contend that representative
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discovery, served on no more than twenty opt-in plaintiffs selected by the Plaintiffs themselves,
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would be sufficient.
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ORDER ON DEFENDANTS’ MOTIONS TO COMPEL AND MOTION TO DEEM MATTERS ADMITTED - 2
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III.
DISCUSSION
Plaintiffs brought suit pursuant to the Fair Labor Standards Act’s (“FLSA”) collective
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action provision. 29 U.S.C. § 216(b). Collective actions may be brought against an employer by
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employees on behalf of themselves and other employees “similarly situated,” and are subject to a
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two-step class certification procedure.1 See id.; Troy v. Kehe Food Distributors, Inc., 276 F.R.D.
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643, 649 (W.D. Wash. 2011). In the first step, the Plaintiffs’ class may be granted conditional
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certification based upon limited evidence for the purpose of notifying potential class members.
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Following an “opt-in” period and discovery, the Court re-visits the “similarly situated” issue in
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the second stage of review (often triggered by a defendant’s motion to de-certify the collective
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class). If it determines that the parties are not similarly situated, the court de-certifies the
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collective class and the claims are dismissed without prejudice.
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During this second stage of review, the court weighs “(1) the disparate factual and
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employment settings of the individual plaintiffs; (2) the various defenses available to the
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defendants with respect to the individual plaintiffs; and (3) fairness and procedural
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considerations” to determine whether the party-plaintiffs are similarly situated such that the case
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may proceed. Ingersoll v. Royal & Sunalliance USA, Inc., No. C05-1774-MAT, 2006 WL
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2091097, at *1 (W.D. Wash. July 25, 2006) (quoting Leuthold v. Destination Am., 224 F.R.D.
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462, 466 (N.D. Cal. 2004). The second stage of certification requires information to be obtained
at the individual level; not only are the individual plaintiff’s disparate factual and employment
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As Kellogg correctly recognizes, there is a fundamental difference between a collective
action under the FLSA and a Rule 23 class action: in a collective action the class consists of the
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named plaintiffs and a class of party-plaintiffs whom “opt-in” to the action and are faced with
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ORDER ON DEFENDANTS’ MOTIONS TO COMPEL AND MOTION TO DEEM MATTERS ADMITTED - 3
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settings considered, but the defenses available to Kellogg with respect to the individual plaintiffs
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are likely based on information only available through individualized discovery.
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A.
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Kellogg may proceed with individualized discovery of all opt-in plaintiffs
because potential class decertification is at issue.
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Kellogg seeks to serve individualized discovery on every opt-in plaintiff. This Court has
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broad discretion over the decision to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732,
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738 (9th Cir. 2002). While individualized discovery is not generally allowed in a Rule 23 class
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action, in FLSA collective actions decisions on whether to allow individualized discovery are
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fact-specific and largely depend on the case’s procedural status. The parties cite persuasive albeit
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non-binding authority supporting their respective positions.
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Given the nature of the two-step certification process, and Kellogg’s clear intention to move to
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decertify the class on the basis that the opt-in plaintiffs are not “similarly situated” as required by
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the FLSA collective action provision, individualized discovery may be served on all opt-in
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plaintiffs subject to the limitations set forth below. See Khadera v. ABM Industries, Inc. No.
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C08-417RSM, 2011 WL 3651031, at *4 (W.D. Wash. Aug 18, 2011) (analyzing relevant cases,
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and determining that “in each case, individualized discovery was permitted to allow the
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defendant to gather evidence to support a motion for decertification”). While the FLSA
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collective action provision undoubtedly reduces the barriers—both motivational and monetary—
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to bringing a wage dispute against an employer, it does not relieve the opt-in plaintiffs from all
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burdens associated with the action.
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B.
Kellogg’s discovery shall be limited and comprehensible.
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In support of their desire to have the Court deem admitted the request for admissions for
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all opt-in Plaintiffs, Kellogg quotes this Court:
“I am going to allow discovery, all right. It’s going to be modest. It’s not going to
be lengthy. I am going to expect the plaintiffs to comply with the deadlines, and if
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ORDER ON DEFENDANTS’ MOTIONS TO COMPEL AND MOTION TO DEEM MATTERS ADMITTED - 4
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they are already over, they are to respond promptly, completely. And I will expect
the compliance with this order signed at this time.”
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[Defendants’ Motion to Deem Matters Admitted, Dkt. #256]. Too excited by the Court’s demand
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for the Plaintiffs’ prompt compliance, the “modest” part of the Court’s admonition apparently
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bounced off Kellogg’s counsel with no impact, and Kellogg served the opt-in plaintiffs the
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discovery that is in contention before us today. Much of what has been propounded thus far is far
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too broad and intrusive.
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The renewed discovery will be limited. All discovery shall be easily digestible—i.e.,
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there should be no definitions: identify will have its plain and ordinary meaning. Kellogg may
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seek to obtain information directly relevant to the primary issues involved with a motion to
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decertify: (1) what are the Plaintiffs’ primary job duties; (2) what hours did Plaintiffs work; and
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(3) how much were Plaintiffs paid.
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While individualized discovery is typically permitted in instances where a motion to
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decertify is clearly forthcoming, to avoid the inefficiencies involved with multiple rounds of
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discovery Kellogg may also request information pertinent to: (1) how damages are calculated;
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(2) whether Kellogg acted in good faith; and (3) whether Kellogg’s alleged violation of the
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FLSA was willful. However, in no event shall Kellogg seek discovery related to an opt-in
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plaintiff’s social media presence or medical history. Additionally, discovery shall be limited to
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the period of time covered by the applicable statute of limitations.
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C.
The Plaintiffs properly objected to Kellogg’s Request for Admissions.
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Finally, Kellogg attempts to persuade this Court to deem admitted each response to its
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Request for Admissions. Rule 36(a)(3) provides that:
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A matter is admitted unless, within 30 days after being served, the party to whom
the request is directed serves on the requesting party a written answer or objection
addressed to the matter and signed by the party or its attorney.
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ORDER ON DEFENDANTS’ MOTIONS TO COMPEL AND MOTION TO DEEM MATTERS ADMITTED - 5
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Fed. R. Civ. P. 36(a)(3). It is within the district court’s discretion to deem a matter admitted.
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Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981).
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Given this disputes nature, the Plaintiff’s June 12 letter clearly objecting to individualized
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discovery,2 and in the interest of providing the Plaintiffs an opportunity to pursue their claims on
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the merits, the matters in Kellogg’s Request for Admissions are not deemed admitted for the optin plaintiffs.
IV.
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CONCLUSION
Defendants’ Motion to compel interrogatories and document request is GRANTED in
part, and DENIED in part. Additionally, Defendants’ Motion to deem admitted is DENIED.
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IT IS SO ORDERED.
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Dated this 24th day of September, 2014.
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A
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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE
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Kellogg’s June 16, 2014 letter also characterizes the Plaintiffs’ letter as a “threshold
discovery objection.”
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ORDER ON DEFENDANTS’ MOTIONS TO COMPEL AND MOTION TO DEEM MATTERS ADMITTED - 6
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