United States District Court, W.D. Pennsylvania
ERIC BOYINGTON, on behalf of himself and all others similarly situated, Plaintiffs,
PERCHERON FIELD SERVICES, LLC, Defendant.
GIBSON UNITED STATES DISTRICT JUDGE
case arises out of Eric Boyington's employment by
Percheron Field Services, LLC. Boyington filed this case in
this Court on May 7, 2014, alleging that Percheron improperly
classified him and his co-workers as exempt employees under
the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C.
§§ 201-19, and the Pennsylvania Minimum Wage Act
(PMWA), 43 Pa. Cons. Stat. §§ 333.101-15. (ECF No.
1 ¶ 1.) Boyington seeks damages for non-payment of
overtime wages for himself and all others similarly situated,
as well as liquidated damages and reasonable attorneys'
fees and costs under the FLSA. (Id. ¶ 75.)
December 15, 2016, Plaintiffs filed a motion to compel
Percheron to produce certain documents for two purported
opt-in plaintiffs, Jeremy Scott Riley and John Stewart. (ECF
No. 213.) In response, Percheron filed a motion to dismiss
Riley and Stewart from the case (ECF No. 214), arguing that
they should be dismissed because their opt-in consent forms
were filed approximately seven and one-half months after the
court-ordered opt-in deadline.
reasons that follow, Percheron's motion to dismiss (ECF
No. 214) is DENIED and Plaintiffs' motion to compel (ECF
No. 213) is GRANTED.
16, 2015, this Court granted Boyington's motion to
conditionally certify a class under the FLSA in this
case. (ECF No. 97, Boyington v. Percheron
Field Servs., LLC, No. 14-cv-90, 2015 WL 3756330, at *3
(W.D. Pa. June 16, 2015).) In support of his
conditional-certification motion, Boyington argued that the
class should be given notice by both regular mail and email
“[b]ecause the Proposed FLSA Notice Group includes many
persons who[m] are no longer employed by Percheron, and for
whom Percheron may not have an accurate mailing
address.” (ECF No. 46 at 16.) Percheron opposed notice
by email, and argued that Boyington had failed to show a
compelling reason why notice by email was necessary. (ECF No.
66 at 12-14.)
Court determined that Percheron was correct on the
email-notice issue, and found that “requiring the
provision of email addresses of the members of the
conditionally certified class [would be] overly
intrusive.” Boyington, 2015 WL 3756330, at *3.
The Court instructed Boyington to notify class members via
first-class mail, but noted that it was “willing to
revisit the issue should notification via first-class mail
prove to be insufficient.” Id. The Court
further instructed the parties to meet to reach an agreement
on the logistics of contacting the class. Id. That
instruction resulted in the parties filing a joint motion for
approval of court-facilitated notice (ECF No. 110), which
included a proposed opt-in consent form. The proposed opt-in
consent form gave recipients sixty days from the date on
which the notice was mailed out to opt into the class by
returning the consent form to the notice administrator. (ECF
No. 110-1.) The Court approved the parties' proposed
notice and opt-in consent form on August 26, 2015 (ECF No.
115), and the notices and forms were mailed out on September
1, 2015 (ECF No. 215-1). Thus, the deadline for class members
to opt into the class was October 31, 2015. (E.g.,
ECF No. 116.)
opt-in notices were filed during September, October, and
November 2015. (See ECF Nos. 115-16, 119, 121-28.)
Most of the notices filed during those months were signed and
dated before the October 31, 2015 deadline. (See ECF
Nos. 115-16, 119, 121-26.) Some were not: the opt-in notice
for Christina Kibel (ECF No. 127) was dated November 9, 2015,
and the opt-in notices for Barbara and Lowell Parlow (ECF No.
128) were dated November 18, 2015.Then, on June 13 and 16,
2016, two more belated opt-in notices were filed: one on
behalf of Jeremy Scott Riley (ECF No. 160) dated June 10,
2016, and one on behalf of John Stewart (ECF No. 161) dated
June 15, 2016. Until now, no party raised any issue or
offered any explanation regarding the opt-in notices signed
and filed after October 31, 2015.
parties were actively engaged in discovery while
conditional-certification briefing was taking place. On
October 6, 2014, Plaintiffs served Percheron with their first
request for production of documents (ECF No. 213-2). That
request sought, among other things, several categories of
class members' work records. (Id. at 7.)
Percheron responded to Plaintiffs' first request for
production of documents on December 22, 2015. (ECF No.
213-3.) Percheron's response thus predates the opt-in
notices for Riley and Stewart. After noting some objections,
Percheron stated in its response that “to the extent
that Defendant has documents responsive to this request, they
have been produced herewith, including the personnel files,
pay records and work records of the plaintiffs who have opted
into this action.” (Id. at 3-4.)
in this case has been contentious. After extensive briefing
about a discovery dispute regarding Percheron's discovery
obligations, the Court on October 14, 2016, issued a
memorandum opinion and order resolving the dispute. (ECF No.
191, Boyington v. Percheron Field Servs., LLC, No.
14-cv-90, 2016 WL 6068813, at *1 (W.D. Pa. Oct. 14, 2016).)
The Court's opinion was based in part on an agreement
reached between the parties in March 2016. (See ECF
No. 191 at 20, Boyington, 2016 WL 6068813, at *10.)
Subject to some disclaimers, the substance of the March 2016
agreement was that neither side would promulgate new
discovery requests-though the parties remained free to pursue
perceived deficiencies in earlier discovery requests.
issuing the October 14, 2016 opinion, the Court held a
discovery status conference and issued a case-management
order (ECF No. 203) which established new deadlines and
defined the scope of discovery going forward. Regarding the
scope of discovery, the order provided that
[d]uring the remaining fact-discovery period, in accordance
with the parties' March 2016 agreement, the scope of
document discovery is limited strictly to information covered
by, and any alleged deficiencies in, discovery requests that
were propounded before March 2016. This scope includes
discovery produced pursuant to the Court's Memorandum
Opinion and Order dated October 14, 2016 (ECF No. 191).
No. 203 at 2.)
December 15, 2016, Plaintiffs filed the motion to compel
currently before the Court (ECF No. 213). In their motion,
Plaintiffs explain that Percheron has produced work records
for all opt-in plaintiffs except Riley and Stewart and state
that Percheron has refused to produce records for Riley and
Stewart on the basis that their opt-in forms were filed after
the opt-in deadline. (Id.) Plaintiffs seek an order
directing Percheron to produce the work records for Riley and
Stewart. Plaintiffs argue that Riley and Stewart are proper
plaintiffs and that ...