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Quinn F. Scott, et al. v. Bimbo Bakeries

December 11, 2012


The opinion of the court was delivered by: Goldberg, J.


The current dispute in this Fair Labor Standards Act ("FLSA") case involves the vastly different proposals the parties have submitted regarding the appropriate amount of discovery on the issue of final certification of the proposed class. Defendants suggest that in order to properly prepare their opposition to final certification, they must serve discovery on every opt-in Plaintiff. Because discovery of this scope would be incredibly time consuming and costly, we have taken the time to carefully examine Defendants' position and the precedent it suggests supports such expansive discovery on what we view to be a fairly straightforward and narrow issue.


On September 20, 2012, Plaintiffs, Quinn F. Scott, Ronald Sochacki, William J. Davenport, III, Robert Dando, Sr., Kevin Kazarnowicz, on behalf of themselves and all others similarly situated ("Plaintiffs"), filed an amended complaint against Defendants, Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries, Inc. ("Defendants"), alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. and the Pennsylvania Minimum Wage Act ("PMWA"), 43 PA. CON. STAT. §§ 333.101 et seq.*fn1

Plaintiffs deliver fresh baked goods for Defendants nationwide, pursuant to Distribution Agreements that identify Plaintiffs as "independent contractors." Plaintiffs claim that, although they are classified as "independent contractors," Defendants control and manage their work and thereby treat them as their "employees." Plaintiffs contend that under Defendants' alleged "nationwide policy" of mis-classifying their drivers in this manner, they were denied certain rights, privileges, and benefits owed to "employees" under the law. (Am. Compl. ¶¶ 21, 28-48.)

This case has a contentious history, necessitating frequent court intervention to resolve a variety of disputes, with both parties seeking sanctions against the other. In November 2010, the parties submitted a proposed discovery plan regarding Plaintiffs' motion for conditional certification, and after much discussion, a limited scheduling order was put in place. (Doc. Nos. 22, 36.) At the conclusion of this discovery period, Plaintiffs filed a motion for conditional certification on their FLSA claim, which was granted. (Doc. No. 83). In conditionally certifying the collective action, we found that Plaintiffs had established the "modest factual showing" of a "factual nexus between the manner in which the employer's alleged policy affected [them] and the manner in which it affected other employees." Defendants promptly filed for reconsideration of this ruling and after oral argument, Defendants' motion to reconsider was denied on April 24, 2012. The parties subsequently submitted joint proposed "Notice" and "Consent" forms, which the Court approved. (See Doc. No. 101.) The notice period for opt-in Plaintiffs ended on October 15, 2012. Currently there are at least 650 opt-in Plaintiffs.*fn2

The class of Plaintiffs, as set forth in the Notice of Lawsuit sent to potential opt-in Plaintiffs, is defined as follows: "All Independent Operators [ ] who have or have had a distribution agreement with Bimbo Foods Bakeries Distribution, Inc., Bimbo Bakeries Distribution Company, Ltd., Arnold Sales Company, Inc., or Bimbo Bakeries USA, Inc., at any time within the last three years." (Doc. No. 100 Ex. A.) As set out more fully infra, the scope of discovery at issue involves whether the Plaintiffs are "similarly situated" under the meaning of 29 U.S.C. § 216(b). The parties were ordered to meet and confer on this issue and present a proposed discovery plan to the Court, a draft of which was submitted on September 18, 2012. (Doc. No. 120) (hereinafter "Plan.") The parties' submissions regarding the proper amount of discovery differ in almost every respect, including topics of inquiry, the amount of written discovery and the number of depositions.

Regarding the topics or issues to be covered, Plaintiffs suggest that the next discovery phase be limited to the issue of decertification. In reviewing the Joint Proposed Discovery Plan, Defendants' position is not as clear and it is difficult to discern whether Defendants recommend that the next phase of discovery involve only the issue of decertification or more expansive merits discovery. For instance, Defendants suggest a discovery deadline for "all fact discovery preceding Defendants' motion to deny final certification of the collective action, subject to an additional period of pre-trial merits discovery," but earlier in its submission Defendants request discovery on a "non-exhaustive list of subjects" which includes "the allegations contained in Plaintiffs' Amended Complaint." (Plan, pp. 2-3.) In any event, defense counsel agreed during a subsequent phone conference that the next phase of discovery should be limited to the issue of final certification.

Regarding written discovery, Plaintiffs agree that "written discovery may be served on each named Plaintiff," but seek to limit written discovery to "a representative number of opt-ins, not to exceed 10% of the final total of opt-ins," allowing for a sixty-day response period. Defendants, on the other hand, seek to "serve each named and opt-in Plaintiff with written discovery demands during the discovery period preceding a ruling on final certification," allowing thirty days for Plaintiffs to respond. (Id., pp. 4-5.) Thus, in terms of raw numbers, and using Defense counsel's representation regarding the number of opt-ins, Defendants urge that service of interrogatories to 650 separate optins is appropriate, while only allowing Plaintiffs thirty days to respond.

With regard to depositions, Plaintiffs agree that all named Plaintiffs may be deposed, but seek to limit Defendants to "no more than 15 additional depositions, with such deponents to be selected by agreement by the parties from the representative sample." Defendants disagree and seek to depose each named Plaintiff, and "no more than 40% of the opt-in Plaintiffs in order to develop a record for the Court to address final certification." The parties agree that depositions shall be limited to five hours of testimony. (Id., pp. 5-6.) Thus, Defendants take the position that they can only obtain a fair representation of whether the opt-in Plaintiffs are similarly situated through the taking of 260 depositions. If Plaintiffs' counsel is correct and the number of opt-ins is 710, defense counsel urges that 284 depositions are necessary.

Given these differences, and what initially appeared to the Court to be entirely unreasonable requests by Defendants, a telephone conference was held on October 3, 2012. During this conference we expressed our concern that Defendants' discovery strategy seemed designed to overwhelm Plaintiffs' counsel rather than to fairly obtain necessary information for a very focused and discrete issue. Defense counsel disagreed and took the position that most courts who had considered this issue had allowed discovery exactly as Defendants have proposed.

Upon careful review of the cases cited by defense counsel, we find his position to be incorrect and the discovery plan suggested by Defendants to be excessive, and designed to overburden Plaintiffs rather than a genuine attempt to obtain full and fair discovery. For the reasons discussed infra, we will adopt Plaintiffs' proposed limitations on the scope of discovery, written discovery and depositions.


A. General Scope of ...

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