United States District Court, W.D. Pennsylvania
JOSEPH A. BONDS, individually and on behalf of all others similarly situated, Plaintiff,
GMS MINE REPAIR & MAINTENANCE, INC., Defendant.
MEMORANDUM OPINION AND ORDER OF COURT
TERRENCE F. McVERRY, District Judge.
Before the Court are the Letter Briefs and Supplemental Proposed Discovery Plans filed by Plaintiff Joseph A. Bonds, individually and on behalf of all other similarly situated (ECF No. 75); and Defendant GMS Mine Repair and Maintenance, Inc. ("GMS" or "Defendant") (ECF No. 76) in which they set forth their respective positions on the size and scope of written and oral discovery. The issue is ripe for disposition.
Bonds initiated this case at Civil Action No. 13-1217 on August 23, 2012, on behalf of himself and all others similarly situated, by filing a two-count Complaint in which he alleges that GMS violated the Fair Labor Standards Act ("FLSA"), the Pennsylvania Wage Payment and Collection Act, and the Pennsylvania Minimum Wage Act. On October 11, 2013, Bonds filed another Complaint against GMS at Civil Action No. 13-1480 in which he avers that it violated the anti-retaliation provision of the FLSA. The Court consolidated the two actions on October 16, 2013.
A motion for conditional certification followed. On July 1, 2014, the Court conditionally certified a collective action comprised of: "[a]ll current and former non-exempt employees of Defendant, GMS Mine Repair & Maintenance, Inc., who were assigned to work at the Pleasant Grove Portal (entry point) of the Enlow Fork Mine (the "Enlow Fork Mine Employees") from February 1, 2012 to the present."
The Court ultimately approved the parties joint proposed notice and consent form after it initially found that the parties' separate proposals were not adequate. Relevant here, the notice and consent form states that "[w]hile this case is proceeding, you [the opt-in] may be required to provide information, answer written questions, appear for a deposition or otherwise participate in the case." (ECF No. 50 at 3).
During the pendency of the opt-in period, the Court issued an Order in which it directed the parties to file a joint proposed discovery plan for the next phase(s) of discovery in which they were to address the length and sequence of discovery, the use of representative sampling, the parameters of written and oral discovery, and the timing of and/or deadlines for filing dispositive motions and final certification/decertification motions. In that Order, the Court also included a footnote in which it directed the parties to two examples of joint discovery plans which have previously been approved: Bland v. Calfrac Well Services, Corp., 2:12-cv-01407-TFM, ECF No. 53 (W.D. Pa. Dec. 23, 2013); Vargas v. General Nutrition Centers, Inc., 2:10-cv-867-TFM, ECF No. 142 (W.D. Pa. Nov. 26, 2013). On October 29, 2014, the parties filed their "Joint Proposed Discovery Plan" which hardly complied with this Court's earlier Order.
Nevertheless, on November 6, 2014, Plaintiffs filed one-hundred-and-fifty-seven (157) Opt-in Consent to Join Forms (ECF Nos. 63-70). The Court held a telephonic status conference on November 7, 2014 during which it instructed the parties to submit a supplemental joint proposed discovery plan or separate proposals if they were unable to agree. Based on the most-recent filings, the parties have reached an apparent impasse on this issue.
GMS seeks to subject each op-in Plaintiff to written discovery in the form of a questionnaire with five interrogatories and to select a representative sample of twenty-five individuals to whom an additional ten written interrogatories will be served and from whom depositions may be taken. In support of its position, GMS highlights that each opt-in has chosen to engage in this collective action as a "party-plaintiff, " contends that it needs limited written discovery to assist in its expected decertification argument that plaintiffs are not "similarly situated" and to assess whether each opt-in is properly included in the collective, and argues that denying at least some limited discovery deprives it of due process.
Plaintiffs seek to limit that approach. In their filing, Plaintiffs propose a representative sample size consisting of twenty-percent of the conditionally-certified collective. From those thirty-two individuals, Plaintiffs would serve ten interrogatories and eight document requests and notice sixteen of them for depositions.
The parties have not cited, and this Court has not found, any binding precedent in the Third Circuit that defines the proper scope of discovery in a conditionally-certified FLSA collective action. But this Court does not write on a blank slate as other district courts have weighed in on the issue. See Scott v. Bimbo Bakeries USA, Inc., No. CIV.A. 10-3154, 2012 WL 6151734, at *4 (E.D. Pa. Dec. 11, 2012); see also Craig v. Rite Aid Corp., No. 4:08-CV-2317, 2011 WL 9686065, at *3 (M.D. Pa. Feb. 7, 2011); Smith v. Lowe's Home Centers, Inc., 236 F.R.D. 354, 357 (S.D. Ohio 2006).
Generally speaking, "there are two lines of cases regarding individualized discovery in opt-in class actions:' one allowing all opt-in plaintiffs to be subject to discovery and one allowing only a sample of opt-in plaintiffs to be subject to discovery." Forauer v. Vermont Country Store, Inc., No. 5:12-CV-276, 2014 WL 2612044, at *2 (D. Vt. June 11, 2014) (quoting Coldiron v. Pizza Hut, Inc., 2004 WL 2601180, at *2 (C.D. Cal. Oct. 25, 2004)). Those district courts which have concluded that large-scale individualized discovery is not appropriate in FLSA collective actions have held that they should apply the same standards as are used in Rule 23 class actions. See id. (collecting cases). Often times, those courts have "authorized a defendant to depose only a statistically significant representative sampling' of the plaintiffs, particularly when the opt-in plaintiffs are numerous." Id. (quoting Smith, 236 F.R.D. at 357-58).
Other district courts have treated "opt-in plaintiffs in a [FLSA] collective action as ordinary party plaintiffs subject to the full range of discovery permitted by the Federal Rules of Civil Procedure.'" Id. (quoting Khadera v. ABM Indus. Inc., 2011 WL 3651031, at *2 (W.D. Wash. Aug. 18, 2011)). Those decisions focus on the two-part framework used in FLSA collective actions-the second step of which requires the Court to "make[ ] a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff.'" Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013) (quoting Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 193 (3d Cir.2011), rev'd on other grounds, 133 S.Ct. 1523 (2013). And "[b]ecause of this second step in which a defendant can seek de-certification, numerous' courts have held that it is ...