Amaraut v. Sprint/United Management Company

Opinion

1 2 3 4 5 6 7 10 11 VLADIMIR AMARAUT, on behalf of Case No.: 3:19-cv-411-WQH-AHG himself and all others similarly situated, 12 et al., ORDER GRANTING IN PART AND 13 DENYING IN PART PLAINTIFFS’ Plaintiffs, MOTION FOR SANCTIONS 14 v. 15 [ECF No. 64] SPRINT/UNITED MANAGEMENT 17 Defendant. 18 19 20 21 22 23 Before the Court is Plaintiffs Vladimir Amaraut, Katherine Almonte, Corbin Beltz, 24 Kristopher Fox, Dylan McCollum, and Quinn Myers’s (collectively “Plaintiffs”) Motion 25 for Sanctions and Corrective Measures pursuant to Federal Rules of Civil Procedure 11 26 and 16 and Local Rule 83.1. ECF No. 64. This matter was referred to the undersigned by 27 District Judge William Q. Hayes. ECF No. 86. For the reasons set forth below, the Court 28 GRANTS IN PART and DENIES IN PART Plaintiffs’ motion. 2 On November 1, 2019, Plaintiffs filed their First Amended Collective and Class 3 Action Complaint against Defendant Sprint/United Management Company (“Defendant”). 4 ECF No. 45-1. There, Plaintiffs brought a hybrid collective and class action: an “opt-in” 5 collective action for FLSA claims and an “opt-out” state-specific class action for state law 6 wage and hour claims. Id. The same day, the parties filed a Joint Motion to Conditionally 7 Certify the Collective and Facilitate Notice Pursuant to 29 U.S.C. § 216(b). ECF No. 46. 8 On November 4, 2019, the Court issued an Order granting the Parties’ Joint Motion. ECF 9 No. 48 (hereinafter, “Court’s November 4th Order”). On November 14, 2019, Plaintiffs 10 filed their Notice of the Proposed Notice Administrator Selection. ECF No. 49. On 11 November 18, 2019, the Court issued an Order appointing Heffler Claims Group for the 12 purpose of facilitating notice to the conditionally-certified Collective. ECF No. 51. 13 On December 17, 2019, Plaintiffs filed the instant Motion for Sanctions and 14 Corrective Measures. ECF No. 64. Defendant filed a timely Opposition on 15 December 27, 2019, and Plaintiffs filed a timely Reply on January 3, 2020. ECF Nos. 72, 16 80. On January 23, 2020, Plaintiffs filed a Supplemental Declaration in support of their 17 motion for sanctions (ECF No. 98), and on January 24, 2020, Defendant likewise filed its 18 own Supplemental Declaration in support of its opposition (ECF No. 101). This order 19 follows. 21 “[T]he district court has a broad array of sanctions options at its disposal,” including 22 Rules 11 and 16 of the Federal Rules of Civil Procedure and the Court’s inherent authority. 23 Christian v. Mattel, Inc., 286 F.3d 1118, 1131 (9th Cir. 2002) (citing Fink v. Gomez, 239 24 F.3d 989, 991–92 (9th Cir. 2001) (holding that sanctions may be imposed under the court’s 25 inherent authority for “bad faith” actions by counsel, “which includes a broad range of 26 willful improper conduct”)). 27 By signing, filing, submitting, or later advocating a pleading or motion, an attorney 28 has certified that it was not presented for an improper purpose, such as to harass, cause 1 unnecessary delay, or needlessly increase the cost of litigation. FED R. CIV. P. 11(b)(1). If 2 the Court determines that Rule 11 has been violated, the Court “may impose an appropriate 3 sanction on any attorney, law firm, or party that violated the rule or is responsible for the 4 violation.” FED R. CIV. P. 11(c)(1). “[T]he central purpose of Rule 11 is to deter baseless 5 filings in district court.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990), 6 superseded by statute on other grounds. Rule 11 “imposes a duty on attorneys to certify 7 that they have conducted a reasonable inquiry and have determined that any papers filed 8 with the court are well grounded in fact, legally tenable, and not interposed for any 9 improper purpose.” Id. (quotation omitted). “Conduct in depositions, discovery meetings 10 of counsel, oral representations at hearings, and behavior in prior proceedings do not fall 11 within the ambit of Rule 11.” Christian, 286 F.3d at 1131. 12 Rule 11 places “stringent notice and filing requirements on parties seeking 13 sanctions.” Holgate v. Baldwin, 425 F. 3d 671, 677 (9th Cir. 2005). Rule 11 contains a 14 “safe harbor” provision, which requires a party seeking sanctions “to give the opposing 15 party 21 days to withdraw or otherwise correct the offending paper” before filing the 16 motion for sanctions. Id. at 678 (internal quotations omitted); FED. R. CIV. P. 11(c)(1)(A). 17 The Ninth Circuit has warned that “[w]e enforce this safe harbor provision strictly.” 18 Holgate, 425 F. 3d at 677; see Barber v. Miller, 146 F.3d 707, 710–11 (9th Cir. 1998); 19 Davis v. San Diego Cty. Sheriff Dep’t, No. 18cv866-WQH-JLB, 2018 WL 3861910, at *4 20 (S.D. Cal. Aug. 14, 2018) (denying motion for sanctions and explaining that “[t]he Court 21 of Appeals for the Ninth Circuit enforces the safe harbor provision strictly, and must 22 reverse the award of sanctions when the challenging party fails to comply with the safe 23 harbor provisions”) (internal quotations and brackets omitted). 24 Rule 16 of the Federal Rules of Civil Procedure provides, in relevant part, that “[o]n 25 motion or on its own, the court may issue any just orders, including those authorized by 26 Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: . . . fails to obey a scheduling or other 27 pretrial order.” FED. R. CIV. P. 16(f)(1)(C). The court “must order” the party “to pay the 28 reasonable expenses—including attorney’s fees—incurred because of any noncompliance 1 with this rule, unless the noncompliance was substantially justified or other circumstances 2 make an award of expenses unjust.” FED. R. CIV. P. 16(f)(2). Rule 16(f) does not apply to 3 all court orders; it applies only to a scheduling order or an order issued after a pretrial 4 conference that “recit[es] the action taken [and] controls the course of the action.” FED. R. 5 CIV. P. 16(d); see Canon Solutions Am. v. Gungap, No. SACV 14-1990-JLS-RNBx, 2016 6 U.S. Dist. LEXIS 190647, at *11 (C.D. Cal. Feb. 8, 2016) (explaining that a “pretrial order” 7 as defined in Rule 16 is “a specific type of order entered at the close of the pretrial 8 conference that defin[es] and clarif[ies] the issues to be tried, limit[s] the trial to those 9 contested issues, and limit[s] discovery”). 10 Under the Court’s inherent power, the court may levy sanctions for “‘willful 11 disobedience of a court order’” or when a party has “‘acted in bad faith, vexatiously, 12 wantonly, or for oppressive reasons.’” Fink, 239 F.3d at 991 (quoting Roadway Express, 13 Inc. v. Piper, 447 U.S. 752, 776 (1980)); see also CivLR 83.1(a) (“Failure of counsel or of 14 any party to comply with these rules, with the Federal Rules of Civil or Criminal Procedure, 15 or with any order of the court may be grounds for imposition by the court of any and all 16 sanctions authorized by statute or rule or within the inherent power of the court, including, 17 without limitation, dismissal of any actions, entry of default, finding of contempt, 18 imposition of monetary sanctions or attorneys’ fees and costs, and other lesser sanctions”). 19 The Court’s “authority to impose sanctions under its inherent powers is broad, but not 20 limitless.” Mendez v. County of San Bernardino, 540 F.3d 1109, 1132 (9th Cir. 2008). The 21 Court’s inherent power “is ‘both broader and narrower than other means of imposing 22 sanctions.’ [] On the one hand, the inherent power ‘extends to a full range of litigation 23 abuses.’ On the other, the litigant must have ‘engaged in bad faith or willful disobedience 24 of a court’s order.’” Fink, 239 F.3d at 992 (quoting Chambers v. NASCO, Inc., 501 U.S. 25 32, 46–47 (1991)). A “willful” violation of a court order “does not require proof of mental 26 intent such as bad faith or an improper motive, but rather, it is enough that a party acted 27 deliberately.” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012). 28 “Before awarding [monetary] sanctions under its inherent powers, however, the court must 1 make an explicit finding that counsel’s conduct ‘constituted or was tantamount to bad 2 faith.’” Primus Auto. Fin. Servs. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (quoting 3 Roadway Express, 447 U.S. at 767). An explicit finding of bad faith “is especially critical 4 when the court uses its inherent powers to engage in fee-shifting.” Primus Auto. Fin. Servs., 5 115 F.3d at 648 (noting that a “court’s inherent power to impose attorney’s fees as a 6 sanction [is limited] to cases in which a litigant has engaged in bad-faith conduct or willful 7 disobedience of a court’s orders.”). Bad faith can be established “by ‘delaying or disrupting 8 the litigation or hampering enforcement of a court order.’” Id. (quoting Hutto v. Finney, 9 437 U.S. 678, 689 n.14 (1978)). 11 On November 4, 2019, the Court granted the Parties’ Joint Motion to Conditionally 12 Certify the Collective and Facilitate Notice Pursuant to 29 U.S.C. § 216(b). ECF No. 48. 13 Since the parties’ interpretations of the Court’s November 4th Order are at issue in the 14 instant motion, the Court will set forth the relevant portions of the order here: 15 Within fourteen (14) days of this Order, Defendant shall provide the Notice 16 Administrator with a computer-readable data file containing the names, job titles, last known mailing addresses, personal e-mail addresses on file with the 17 company at sprint.com/careers (to the extent available), and social security 18 numbers (last four digits only) of all Collective members . . . . This information is subject to the Protective Order entered in this action . . . . 19 . . . 20 The Court will appoint a third-party notice administrator (“Administrator”) to mail and email the proposed Notice and Opt-In Consent Form to all persons 21 identified in Defendant’s list. Plaintiffs shall propose the Administrator to the 22 Court within five (5) days of the date of this Order and shall meet and confer with Defendant regarding the selection before then . . . . The Notice and Opt- 23 In Consent Form shall be sent by the Administrator via: (1) first class mail, 24 and (2) email . . . . . . . 25 The Notice and Opt-In Consent Form will not be sent to any individuals who 26 are otherwise within the proposed Collective definition set forth herein who (1) have opted into other FLSA actions encompassing the same claims and 27 time period as in this case; and/or (2) have fully released their FLSA claims 28 as part of class or collective action settlements (“excluded individuals”). 1 Defendant will identify to Plaintiffs each action in which excluded individuals have opted in and/or released claims, along with the number of excluded 2 individuals per each lawsuit identified. 3 Id. at 5–6. 4 A. Rule 11 Sanctions 5 Plaintiffs allege that, by certifying that “Defendant shall provide the Notice 6 Administrator with . . . personal e-mail addresses on file with the company at 7 sprint.com/careers (to the extent available)” in its Joint Motion for Conditional 8 Certification (ECF No. 46 at 4), Defendant presented a motion to the Court for an improper 9 purpose, in violation of Rule 11. ECF No. 80 at 11. However, the Court need not decide 10 the merits of Plaintiffs’ allegations because Plaintiffs have failed to show that they 11 complied with Rule 11’s safe harbor provision. See ECF No. 64-1 at 29 (certificate of 12 service indicating that the motion was served on Defendant on the same day it was filed). 13 On November 22, 2019, when Defendant had not yet provided the contact 14 information to the Notice Administrator, Plaintiffs’ counsel warned Defendant’s counsel: 15 “[i]f Sprint commits any additional violations of [the Court’s November 4th] Order, 16 Plaintiff will seek sanctions.” ECF No. 64-3 at 368. Plaintiffs’ counsel further warned: 17 “based on your email, Plaintiff anticipates seeking monetary and corrective sanctions.” Id. 18 On Tuesday, December 10, 2019, Plaintiffs’ counsel again emailed Defendant’s counsel: 19 “We are finalizing our moving papers in seeking corrective and monetary 20 sanctions for Sprint’s refusal to abide by the Parties’ stipulation on conditional 21 certification and the Court’s Order thereon. We expect to file by no later than close of business on Friday. Before we do, we would like to offer you one 22 final opportunity to resolve the matter informally and without the Court’s 23 intervention. By no later than close of business on Thursday, December 12, 2019, let us know whether you will agree to the following corrective 24 measures: . . .” 25 Id. at 402. These informal warnings do not satisfy Rule 11’s safe harbor provision. Barber, 26 146 F.3d at 710–11 (reversing an award of sanctions and concluding that, although a 27 defendant had given informal warnings to the plaintiffs threatening to seek Rule 11 28 1 sanctions, these warnings did not satisfy the strict requirement that a motion be served on 2 the opposing party twenty-one days prior to filing); see also Wild Game NG, LLC v. Wong’s 3 Int’l (USA) Corp., 329 Fed. App’x 131, 131 (9th Cir. 2009) (summarily reversing an award 4 of sanctions because “[i]nformal warnings threatening to seek Rule 11 sanctions are not 5 enough” to comply with Rule 11’s safe harbor provision); Heredia v. Allstate Indem. Co., 6 No. 15cv1642-WQH-RBB, 2015 WL 6828682, at *4 (S.D. Cal. Nov. 6, 2015) (denying 7 motion for sanctions filed on August 25 because, though the defendant’s counsel sent a 8 letter on August 13 stating that if plaintiff didn’t act by August 18, defendant could move 9 for Rule 11 sanctions, the twelve-day notice via informal letter did not meet the “strict” 21- 10 day safe harbor service requirement). 11 Thus, regardless of whether Defendant filed any paper with the Court that was 12 baseless or filed for an improper purpose, Rule 11 sanctions do not apply. See, e.g., 13 Holgate, 425 F. 3d at 677 (reversing an award of sanctions because the movant failed to 14 comply with the safe harbor provision, even though the respondent’s filing was frivolous 15 and otherwise sanctionable); cf. Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 789 (9th 16 Cir. 2001) (reversing an award of sanctions because the movant failed to comply with the 17 safe harbor provision, and the fact that three months passed between the motion and the 18 Court’s Order was insufficient to provide the notice and opportunity to withdraw that Rule 19 11 requires). Accordingly, Plaintiffs’ motion for Rule 11 sanctions is DENIED. 20 B. Rule 16 Sanctions 21 Plaintiffs allege that Rule 16 sanctions are warranted because Defendant violated the 22 Court’s November 4th Order, which conditionally certified the collective. ECF No. 48. 23 That Order was issued in response to the Parties’ Joint Motion to Conditionally Certify the 24 Collective and Facilitate Notice Pursuant to 29 U.S.C. § 216(b). See ECF Nos. 46, 48. 25 Thus, it is not a scheduling order or pretrial order. See Canon Solutions Am., 2016 U.S. 26 Dist. LEXIS 190647, at *11 (explaining that a “pretrial order” as defined in Rule 16 is “a 27 specific type of order entered at the close of the pretrial conference”). Accordingly, Rule 28 1 16 does not apply and Plaintiffs’ motion for Rule 16 sanctions is DENIED. See FED. R. 2 CIV. P. 16(d) (applying to only scheduling orders or pretrial orders). 3 C. Inherent Authority to Issue Sanctions 4 Plaintiffs requests that the Court utilize its inherent authority to issue sanctions 5 because Defendants failed to comply with the Court’s November 4th Order in two ways: 6 (1) Defendants failed to comply with the timing requirements of the order in not producing 7 personal email addresses to the Notice Administrator by November 18, 2019; and (2) 8 Defendants failed to comply with the substantive requirements of the order and did not 9 produce the personal email addresses “to the extent available.” The Court will address these 10 in turn. 11 1. Failure to Comply with Timing Requirements of Court Order 12 Defendant produced personal email addresses to the Notice Administrator on 13 December 6, 2019. ECF No. 72 at 17. Plaintiffs argue that this action alone warrants 14 sanctions because the email addresses were to be produced to the Notice Administrator by 15 November 18, 2019. ECF No. 64-1 at 17–18. The Court disagrees. 16 Both Plaintiffs and Defendant failed to comply with the Court’s November 4th 17 Order. The first step in the notice-dissemination process, after the Court issued its 18 November 4th Order, was for Plaintiffs to meet and confer with Defendant regarding 19 selection of the notice administrator and to propose the notice administrator to the Court 20 by November 9, 2019. ECF No. 48 at 6. Plaintiffs failed to comply. Plaintiffs did not 21 propose the notice administrator to the Court until November 14, 2019. ECF No. 49. With 22 no opposition from Defendant, the Court approved Heffler Claims Group as notice 23 administrator on November 18, 2019 (ECF No. 51), the same day the Defendant was 24 required to provide personal email addresses of Collective members, among other contact 25 information, to the Notice Administrator. ECF No. 48 at 5. Defendant failed to comply, 26 and did not provide any contact information to the Notice Administrator until 27 December 4, 2019, and did not provide email addresses until December 6, 2019. ECF 28 No. 72 at 17. 1 Defendant argues that it did not violate the Court’s November 4th Order. Defendant 2 contends that the Court’s November 4th Order required Defendants to produce the contact 3 information to the Notice Administrator within fourteen days after two conditions 4 precedent had been satisfied: (1) appointment of the Notice Administrator, and (2) entry of 5 a protective order. ECF No. 72 at 13–17. Defendants argue that, since the Notice 6 Administrator was appointed on November 18, 2020 (ECF No. 51), and the protective 7 order was entered on November 26, 2019 (ECF No. 54), its production of contact 8 information on December 6, 2019, ten days after the protective order was entered, was well 9 within the Court’s deadline.1 ECF No. 72 at 15–17. The Court disagrees. The issuance of 10 a protective order was not a precondition to Defendant providing the Notice Administrator 11 with the Collective data. ECF No. 48 at 5 (implementing requirements of how, not when, 12 the Collective data would be used, i.e., pursuant to a protective order and used only by the 13 Notice Administrator for dissemination of notice). 14 15

16 17 1 The Court notes that Defendant has held inconsistent positions on this issue. In a November 20, 2019 email to Plaintiffs’ counsel, Defendant’s counsel stated: 18

19 Based on the Joint Motion [for conditional certification] the parties filed, it was our understanding that the 14‐days to produce the collective list would be 20 triggered from the day the Court appoints an Order assigning the Notice 21 Administrator. The term “Order” was not defined, and due to the structure of the paragraphs, we scheduled our timeline based on this understanding. This 22 logically makes sense, as we can’t produce a collective list to a Notice 23 Administrator if there is no Notice Administrator assigned. Accordingly, we are operating on a production deadline of December 2, 2019 (e.g., 14 days 24 from the November 18 order date). 25 ECF No. 64-3 at 369 (emphasis added). Defendant later noted that it “will need [a 26 protective order] filed and granted by the Court before anything is produced.” Id. at 370. 27 That protective order was entered on November 26, 2019, well before their envisioned deadline. See ECF No. 54. 28 1 However, based on Plaintiffs’ delay in proposing the notice administrator to the 2 Court, and Defendant’s production of the Collective data shortly after the protective order 3 was in place, the Court cannot determine that Defendant acted with “bad faith” in providing 4 the Collective data to the Notice Administrator on December 4 and 6, 2019. Accordingly, 5 Plaintiffs’ motion for sanctions regarding Defendant’s delayed production of personal 6 email addresses to the Notice Administrator is DENIED. 7 2. Failure to Comply with Substantive Requirements of Court Order 8 By ordering Defendant2 to produce personal email addresses “to the extent 9 available,” the Court required Defendant to produce personal email addresses in its 10 possession, custody, or control, not just those that were readily accessible. To have 11 possession, custody, or control does not require actual possession, custody, or control. See 12 TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., No. 14cv2021-W-BLM, 2017 WL 13 1008788, at *2 (S.D. Cal. Mar. 15, 2017); Soto v. City of Concord, 162 F.R.D. 603, 619– 14 20 (N.D. Cal. 1995). “Property is deemed within a party’s possession, custody, or control 15 if the party has . . . the legal right to obtain the property on demand.” Stone v. Vasquez, No. 16 05cv1377-JAT, 2009 WL 2581338, at *1–*2 (E.D. Cal. Aug. 20, 2009) (quoting Thomas 17 v. Hickman, No. 06cv215-AWI-SMS, 2007 WL 4302974, at *13–*14 (E.D. Cal. 2007)); 18 see United States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 19 1452 (9th Cir. 1989) (“Control is defined as the legal right to obtain documents on 20 demand”); Goolsby v. County of San Diego, No. 17cv564-WQH-NLS, 2019 WL 3891128, 21

22 23 2 The Court notes that in its November 4th Order, it ordered production of personal email addresses “to the extent available” to Defendant, not to Defendant’s counsel. ECF No. 48. 24 Thus, any argument that personal email addresses were unavailable because telephone 25 numbers were not provided to Defendant’s counsel will not be considered. See, e.g., ECF No. 101 at 2 (representing that “[p]rior to the production of telephone numbers [on January 26 16, 2020, in response to the Court’s order granting Plaintiffs’ motion to compel], 27 Defendant’s counsel only had employee ID numbers, names, and last known addresses from the Collective List to match personal emails from the sprint.com/career repository.”) 28 1 at *4 (S.D. Cal. Aug. 19, 2019) (same). For example, “[a] party may be ordered to produce 2 a document in the possession of a non-party entity if that party has a legal right to obtain 3 the document or has control over the entity who is in possession of the document.” 4 TetraVue, Inc., 2017 WL 1008788, at *2 (quoting Soto, 162 F.R.D. at 619–20). 5 Moreover, “the fact that Defendant may have to expend time and energy to retrieve 6 the documents does not make the documents inaccessible or outside of Defendant’s 7 control.” Nutrition Distrib. LLC v. PEP Research, LLC, No. 16cv2328-WQH-BLM, 2018 8 WL 1245052, at *6 (S.D. Cal. Mar. 9, 2018). A party “is under an affirmative duty to seek 9 that information reasonably available to [it] from [its] employees, agents, or others subject 10 to [its] control.” A. Farber & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006). 11 By December 6, 2019, Defendant provided the Notice Administrator personal email 12 addresses for 7,983 of the over 33,000 Collective members. ECF No. 98 at 3. Before the 13 Parties filed the Joint Motion to Conditionally Certify the Collective and Facilitate Notice 14 (ECF No. 46), counsel for Plaintiffs made clear that notice by either email or text message 15 is “non-negotiable.” ECF No. 64-3 at 243 (stating that “[i]f there are email addresses for 16 the Collective, we will agree to mail and email notice, and forego text message notice. If 17 there are not sufficient email addresses for the Collective as you say, or for some reason 18 Sprint will have difficulty obtaining this information, then notice must go out by mail and 19 text message. But we require either text or email notice”). Counsel for Defendant 20 confirmed “that [Defendant] can obtain personal emails from sprint.com/careers 21 repository,”3 and Defendant would “agree to produce those e-mails to the Notice 22

23 3 The Court notes that Defendant originally held a hardline position, now proven false, that 24 it did not have personal email addresses. On October 10, 2019, in negotiations over 25 conditional certification, counsel for Defendant told counsel for Plaintiffs that “Sprint does not ask for or have personal e-mail addresses.” ECF No. 64-3 at 143. On October 17, 2019, 26 counsel for Plaintiffs responded: “[w]e know this is incorrect. Sprint’s standard 27 employment application, available on Sprint’s main webpage, asks for [personal email addresses].” Id. at 156. In response, counsel for Defendant reiterated that, “[b]ased on our 28 1 Administrator.” Id. On December 3, 2019, however, counsel for Defendant told counsel 2 for Plaintiffs that Defendant would likely be able to produce personal email addresses for 3 a “severely limited” number of Collective members, for reasons including that “[t]he 4 sorting process has proven to be very cumbersome, as there is no unique identifier to match 5 the applicant with the putative collective member[.]” Id. at 391. Defendant represents that, 6 at the time of the November 4th Order, Defendant’s counsel only had access to employee 7 ID numbers, names, and last known addresses from the Collective List. ECF No. 101 at 2. 8 Since using names and last known addresses did not yield “certainty” in matching personal 9 email addresses to the appropriate individual, the “employee IDs were the only unique 10 identifier in both datasets that guaranteed the correct email address was being matched to 11 the appropriate individual.” ECF No. 101 at 3. Thus, in December 2019, Defendant’s data 12 analytics team prepared the personal email list for the Notice Administrator pursuant to the 13 Court’s November 4th Order, using employee ID numbers to match personal emails from 14 the sprint.com/careers repository. Id. at 2–3. 15 However, there was another way that Defendant could have matched the applicant 16 with the putative collective member: using employee ID numbers and telephone numbers. 17 Defendant represents that, in January 2020, by using telephone numbers in addition to 18 employee ID numbers, it was able to match an additional 18,962 personal email addresses. 19 Id. at 3. Defendant contends that the telephone numbers had not been pulled in December 20 because “they were not required to be provided to the Notice Administrator,” and the 21 corresponding personal email addresses found using those telephone numbers were 22 therefore “not available.” Id. at 2–3. The reason these telephone numbers were pulled in 23

24 25 218. However, a few days later, “[a]fter additional scrutiny regarding the issue, Sprint confirmed that it can obtain personal emails from sprint.com/careers repository. We will 26 agree to produce those e‐mails to the Notice Administrator.” Id. at 214. As discussed 27 below, this conduct, combined with its representations regarding its production of 26,945 personal email addresses in compliance with the Court’s order granting Plaintiff’s motion 28 1 January was because the Court granted Plaintiffs’ motion to compel and ordered Defendant 2 to produce them. Id. at 2; ECF No. 91. 3 The Court finds that the additional personal email addresses were, in fact, available 4 to Defendant. First, in ordering Defendant to produce personal email addresses to the 5 Notice Administrator “to the extent available,” the Court ordered Defendant to make a 6 reasonable inquiry to locate information in its possession, custody, or control. See A. 7 Farber & Ptnrs., Inc., 234 F.R.D. at 189 (concluding that the defendant had not made a 8 reasonable inquiry and therefore had not produced all documents in his possession, 9 custody, or control). It is clear that Defendant did not make a reasonable inquiry. The Court 10 ordered Defendant to provide the Notice Administrator with personal email addresses 11 within fourteen days. ECF No. 48. However, it only took two days to pull telephone 12 numbers for the entire Collective List, and another four days to use those telephone 13 numbers to match personal email addresses. ECF No. 101 at 2–3 (pulling telephone 14 numbers on January 16, 2020 after being ordered to on January 14, 2020, and matching 15 email addresses on January 21, 2020 after giving those telephone numbers to the data 16 analytics group on January 17, 2020). Therefore, it only took six days, less than half of the 17 fourteen days allowed by the Court, to match the personal email addresses. This shows that 18 the personal email addresses were reasonably accessible, relatively easy to locate, and fell 19 within the Court’s “to the extent available” caveat. 20 Second, Defendant’s argument that these additional personal email addresses were 21 “newly acquired” is unavailing. Because the telephone numbers had not been pulled as of 22 December 2019,4 does not make the matching personal email addresses unavailable. 23

24 25 4 Plaintiffs propounded discovery requests for, among other things, telephone numbers on June 25, 2019. ECF No. 69-1 at 3. In its order compelling production, finding that 26 Defendant had no legal basis to have withheld production, the Court stated that Defendant’s 27 failure to demonstrate how Williams was distinguishable from this case “le[ft] the Court with the distinct impression that Defendant’s objection was based on a desire to delay 28 1 Nutrition Distrib., 2018 WL 1245052, at *6 (“the fact that Defendant may have to expend 2 time and energy to retrieve the documents does not make the documents inaccessible or 3 outside of Defendant’s control”). Even had the Court not ordered Defendant to produce the 4 telephone numbers to Plaintiffs in its order granting Plaintiffs’ motion to compel, the 5 telephone numbers (and by proxy, the personal email addresses) were still available, and 6 were within Defendant’s possession, custody, or control. See Int'l Union of Petroleum & 7 Indus. Workers, AFL-CIO, 870 F.2d at 1452 (“Control is defined as the legal right to obtain 8 documents on demand.”). Here, Defendant’s January 21, 2020 production of 26,945 9 personal email addresses on from members of the Collective shows that these email 10 addresses were in its control. See, e.g., Nutrition Distrib., 2018 WL 1245052, at *6 11 (concluding that the defendant’s representation that it was “engaged in the process of 12 obtaining additional information it can from third parties” indicated “that there are 13 responsive documents over which Defendant has control or legal right to access”). Though, 14 at that time, Defendant had not been ordered to provide telephone numbers to the Notice 15 Administrator, it could have easily used them to provide the required email addresses. 16 Here, by failing to make a reasonable inquiry to find personal email addresses clearly 17 within its possession, custody, and control, Defendant failed to comply with that portion 18 of the Order. The next point in the Court’s analysis is whether Defendant’s failure is 19 sanctionable. 20 The “court has the inherent power to sanction for: (1) willful violation of a court 21 order; or (2) bad faith. A determination that a party was willfully disobedient is different 22 from a finding that a party acted in bad faith. Either supports the imposition of sanctions.” 23 Evon, 688 F.3d at 1035. 24 25

26 27 distinguished.” ECF No. 91 at 12, 15 n.5. Additionally, the Court notes that using the telephone numbers to obtain personal email addresses does not require production of those 28 1 Defendant cites Korff v. City of Phoenix for the proposition that “sanctions are 2 inappropriate where—as here—a party’s actions were based on a reasonable interpretation 3 of a court order.”5 ECF No. 72 at 26 (citing Korff v. City of Phoenix, No. 13cv2317-PHX- 4 ESW, 2016 WL 1242523, at *4 (D. Ariz. Mar. 29, 2016)). There, a party misinterpreted 5 the court’s scheduling order, which allowed for updating and supplementing expert reports, 6 and attempted to secure additional discovery from a non-party after the deadline to conduct 7 discovery had passed. Id. The Court gave the party “the benefit of the doubt as to her 8 interpretation of the Court’s Order[,]” and did not award attorney fees sanctions. Id. 9 However, Korff is distinguishable from the case at bar and thus is not persuasive to this 10 Court. First, and most importantly, the sanctions at issue in Korff were based on Rule 16, 11 the failure to comply with a scheduling order, and not the Court’s inherent authority, as is 12 the case here. Id. at *3–*4. Second, though Defendant’s late production may have been 13 based on a reasonable interpretation of the Court’s November 4th Order, its failure to 14 produce personal email addresses that were clearly available to Defendant via reasonable 15 inquiry was not. 16 Defendant also cites Gomez v. Vernon for the proposition that the Court’s “inherent 17 authority applies only in cases of ‘willful disobedience of a court order or when the losing 18

19 5 Similarly, Defendant cites SolarCity v. Doria for the proposition that “denying sanctions 20 where ‘Plaintiff failed to establish by clear and convincing evidence that Defendant Doria’s 21 disclosure was not based on a good faith interpretation of the Protective Order.’” ECF No. 72 at 26 (quoting SolarCity Corp. v. Doria, No. 16cv3085-JAH-RBB, 2018 WL 4204024, 22 at *10 (S.D. Cal. Sept. 4, 2018)) (emphasis added). Though terminating sanctions, Rule 11, 23 and Rule 30 sanctions were denied in that case, they were not denied because of the defendant’s good faith interpretation of a protective order. SolarCity Corp., 2018 WL 24 4204024, at *2–*6, *9–*10, *13. The quotation used by Defendant was instead taken from 25 the court’s denial to find the defendant in contempt of court, which requires satisfying three elements: (1) the contemnor violated a court order, (2) the contemnor did not substantially 26 comply with the order, and (3) the contemnor’s conduct was not the product of a good faith 27 or reasonable interpretation of the violated order. Id. at *9. As with Korff, the sanctions at issue in SolarCity are distinguishable from the sanctions based on the Court’s inherent 28 1 party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, as well as for 2 willful abuse of the judicial processes.’” ECF No. 72 at 26 (quoting Gomez v. Vernon, 255 3 F.3d 1118, 1133–34 (9th Cir. 2001)) (emphasis added). However, this is not entirely 4 correct. In Gomez, the Ninth Circuit affirmed the sanctions imposed by the district court 5 and went on to explain “that inherent-power sanctions [must] be preceded by a finding of 6 bad faith, or conduct tantamount to bad faith. [] Under this standard, although recklessness, 7 of itself, does not justify the imposition of sanctions, sanctions are available when 8 recklessness is ‘combined with an additional factor such as frivolousness, harassment, or 9 an improper purpose.’ [] Sanctions, then, are justified ‘when a party acts for an improper 10 purpose—even if the act consists of making a truthful statement or a non-frivolous 11 argument or objection.’” Gomez, 255 F.3d at 1134 (quoting Fink, 239 F.3d at 992–94). 12 Here, the Court finds that, in blatantly failing to comply with the Court’s November 4th 13 Order, Defendant acted recklessly. Further, the record indicates that Defendant’s failure to 14 make a reasonable inquiry and provide personal email addresses that were within its 15 possession and control was done for an improper purpose: to delay proceedings and gain a 16 tactical advantage over Plaintiffs with regard to the Navarette Settlement. For example, 17 Defendant’s misrepresentations regarding ability to produce personal email addresses (see 18 supra n.3), combined with its representations regarding its production of 26,945 personal 19 email addresses in compliance with the Court’s January order granting Plaintiff’s motion 20 to compel, demonstrates a desire to avoid or delay production of personal email addresses. 21 The Court finds that Defendant’s reckless disregard for the Court’s Order and improper 22 purpose are tantamount to bad faith. Therefore, sanctions are appropriate. 23 Alternatively, even if the Court had not found that Defendant’s actions were 24 tantamount to bad faith, sanctions would still be appropriate because Defendant violated 25 the Court’s November 4th Order willfully. “[I]t is clear that a ‘willful’ violation of a court 26 order does not require proof of mental intent such as bad faith or an improper motive, but 27 rather, it is enough that a party acted deliberately.” Evon, 688 F.3d at 1035 (finding that 28 sanctions were appropriate because the party acted willfully: “Dahlberg knew that the 1 protective order was in place . . . Dahlberg, himself, sought the protective order . . . 2 Dahlberg characterizes the failure to comply with the sanctions order as ‘inadvertent’ but 3 what he really means is that on the day of the filing, he realized that compliance with the 4 protective order would cause him additional time and work, and he chose not to comply”). 5 Here, as in Evon, Defendant negotiated with Plaintiffs to craft their joint motion for 6 conditional certification and thus the terms were of its own making. However, when faced 7 with difficulty, Defendant deliberately chose not to provide all the personal email addresses 8 in its possession, custody, or control by using telephone numbers it had access to. 9 Further, it is clear from the record that Plaintiffs held a hardline position that either 10 personal email notice or text message notice was mandatory, and in accepting Defendant’s 11 offer of providing personal email addresses, it would forgo requesting text message notice. 12 ECF No. 80 at 5. While negotiating the terms of the joint motion for conditional 13 certification, Defendant confirmed that it could obtain personal email addresses, so 14 Plaintiff withdrew their request for text message notice. ECF No. 64-3 at 214 (on October 15 23, 2019, Defendant’s counsel represented that, “[a]fter additional scrutiny regarding the 16 issue, Sprint confirmed that it can obtain personal emails from sprint.com/careers 17 repository. We will agree to produce those e‐mails to the Notice Administrator”). However, 18 after the Court conditionally certified the Collective based upon the parties’ negotiated 19 joint motion, Defendant willfully tried to delay notice dissemination by withholding 20 personal email addresses, which would force notice to be disseminated only by U.S. Mail. 21 For example, on December 3, 2019, counsel for Defendant explained to counsel for 22 Plaintiffs that the reason Defendant would only be able to produce personal email addresses 23 for a “severely limited” number of Collective members was because “there is no unique 24 identifier to match the applicant with the putative collective member[.]” ECF No. 64-3 at 25 391; see also ECF No. 64-3 at 377 (on November 20, 2019, Defendant’s counsel also 26 represented that “[d]ue to the repository not assigning a unique identifier to applicants 27 when they apply for a position, Sprint cannot use an EE ID# [] to pull personal e‐mails”). 28 This representation was false: there were at least two ways to match personal email 1 addresses with certainty. First, Defendant’s counsel’s own declaration to the Court states 2 that “employee IDs were the only unique identifier in both datasets that guaranteed the 3 correct e-mail address was being matched to the appropriate individual.” ECF No. 101 at 4 3. Second, Defendant’s counsel also declared that “by using both employee IDs and 5 telephone numbers, Defendant’s counsel was able to match . . . personal e-mails with 6 certainty.” Id. at 3. The Court finds that Defendant’s behavior was willful, and thus 7 sanctionable, but also as noted above, its actions were for an improper purpose of delaying 8 notice. 9 Therefore, the Plaintiffs’ motion for sanctions regarding Defendant’s failure to 10 produce personal email addresses “to the extent available” is GRANTED. 11 3. Sanctions and Corrective Measures 12 Since the Court has deemed that sanctions are appropriate regarding Defendant’s 13 willful defiance of a Court Order and failure to produce personal email addresses “to the 14 extent available,” the Court will next address the type of sanctions to be imposed. “Under 15 their inherent authority, courts have broad discretion to ‘fashion an appropriate sanction 16 for conduct which abuses the judicial process.’” Voskanyan v. L.A. Sheriffs Dep’t, No. 17 15cv62559-MWF-KES, 2019 U.S. Dist. LEXIS 108106, at *3 (C.D. Cal. June 27, 2019) 18 (quoting Chambers, 501 U.S. at 44–45). Though “it is important for courts to have 19 sufficient tools to control the behavior of litigants[,] . . . ‘[b]ecause inherent powers are 20 shielded from direct democratic controls, they must be exercised with restraint and 21 discretion.’” Mendez, 540 F.3d at 1133 (quoting Roadway Express, 447 U.S. at 764). 22 Therefore, the Court will narrowly tailor its corrective measures to the Defendant’s 23 sanctionable conduct. 24 Defendants argue that corrective or coercive measures are unnecessary. ECF No. 72 25 at 27. Plaintiffs request the Court order that (1) Defendant immediately provide the Notice 26 Administrator with all personal email addresses in its possession; (2) Defendant 27 immediately provide the notice administrator with work email addresses for current 28 employees for whom Defendant does not have personal email addresses; (3) all Collective 1 members receive text message notice, or that notice be given via text message to all 2 individuals that are not current employees and for whom Defendant does not have personal 3 email addresses; (4) the claims of Collective members are tolled from the date full notice 4 was to be disseminated, on November 25, 2019, until the date that email and/or text notice 5 is completed; (5) the opt-in period for Collective members does not begin until email and/or 6 text notice is completed; (6) Defendant is deemed to have waived any argument that any 7 Collective members should be excluded from receiving notice as a result of a prior 8 settlement and must immediately provide the notice administrator with contact information 9 for the 2,121 excluded individuals; (7) Defendant bear any additional costs of notice 10 administration authorized by the Court; and (8) monetary sanctions be imposed against 11 Defendant, comprised of attorney fees and costs. ECF No. 64-1 at 27–28. The Court will 12 address these in turn. 13 a. Plaintiffs’ Request that Defendant Immediately Provide the Notice Administrator with all Personal Email Addresses in its Possession 14 15 For the reasons set forth above, to facilitate complete compliance with the Court’s November 4th Order, the Court ORDERS Defendant to produce all personal email 16 addresses within its possession, custody, or control (including, but not limited to, the 17 26,945 personal email addresses produced to Plaintiff pursuant to the Court’s order 18 19 granting Plaintiffs’ motion to compel) to the Notice Administrator by April 6, 2020. In accordance with the Court’s November 4th Order, the Notice and Opt-In Consent Form 20 shall be sent by the Notice Administrator via these personal email addresses “within seven 21 (7) days of receipt of the [contact information], or as soon thereafter as practicable. The 22 Notice shall provide a website address where persons identified in Defendant’s list may 23 obtain an electronic version of the Notice and submit an electronic version of the Opt-In 24 Consent Form.” ECF No. 48 at 6. 25 / / 26 / / 27 28 1 b. Plaintiffs’ Request that Defendant Immediately Provide the Notice Administrator with Work Email Addresses for Current Employees 2 for whom Defendant does not have Personal Email Addresses 3 On December 20, 2019, days after the instant motion was filed, Defendant produced 4 work email addresses for current employees within the Collective to the Notice 5 Administrator. ECF No. 80 at 6. Therefore, Plaintiff’s request is DENIED AS MOOT. 6 On December 30, 2019, the Notice Administrator disseminated notice to 32,976 7 work email addresses provided by Defendant. ECF No. 98 at 4. However, of those 8 produced, 8,408 were delivered, while 24,568 were undeliverable. Id. Currently, Defendant 9 has produced 26,945 personal email addresses to Plaintiffs out of the 35,000-member 10 Collective, excluding 2,121. ECF No. 98 at 4; ECF No. 64-1 at 17. This leaves 11 approximately 5,934 Collective members for whom notice will potentially only be 12 achieved through U.S. Mail. Plaintiff failed to provide information with regard to whether 13 the 8,408 operating work email addresses gave notice to the 5,934 potentially-left-out 14 Collective members. Without more, the Court declines to grant this corrective measure, 15 and instead denies it as moot without prejudice. 16 c. Plaintiffs’ Request that all Collective Members Receive Text Message 17 Notice, or that Notice be Given via Text Message to All Individuals 18 that are not Current Employees and for whom Defendant does not 19 have Personal Email Addresses 20 “The FLSA requires the Court to provide potential class members ‘accurate and 21 timely notice concerning the pendency of the collective action, so that they can make 22 informed decisions about whether to participate[,]’” using “the best notice practicable 23 under the circumstances.” Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 492 24 (E.D. Cal. 2006) (quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)); 25 FED. R. CIV. P. 23(c)(2)(B). “The Court has authority and discretion to monitor the 26 preparation and distribution of the notice[.]” Cuevas v. ConAm Mgmt. Corp., No. 27 18cv1189-GPC-LL, 2019 WL 5320544, at *6 (S.D. Cal. Oct. 21, 2019) (quoting 28 Hoffmann-La Roche, Inc., 493 U.S. at 172). 1 “Now, email [is] regularly utilized by the masses, and may, in fact, be more reliable 2 than mailing addresses, particularly for former employees who may have moved 3 residences.” Knight v. Concentrix Corp., No. 18cv7101-KAW, 2019 WL 3503052, at *5 4 (N.D. Cal. Aug. 1, 2019). Accordingly, courts are increasingly requiring an alternative 5 method of notice to U.S. Mail. Id. at *5–*6 (ordering that notice “be disseminated using 6 both U.S. Mail and e-mail” and noting call center employees’ transient nature); Deatrick 7 v. Securitas Sec. Servs. USA, No. 13cv5016-JST, 2014 WL 5358723, at *5 (N.D. Cal. Oct. 8 20, 2014) (“The Court is persuaded that notice by mail, including the issuance of reminder 9 postcards and telephone numbers to facilitate tracing potential class members if mailings 10 are returned as undeliverable, is the most appropriate method to effectuate notice in this 11 case”); Benedict v. Hewlett-Packard Co., No. 13cv1119-LHK, 2014 U.S. Dist. LEXIS 12 18594, at *60, *63 (N.D. Cal. Feb. 13, 2014) (ordering that notice be disseminated “via 13 first-class mail and email,” rejecting the defendant’s argument that “anyone who wanted 14 to join or be contacted could have done so or could do so in response to a mailed notice”). 15 However, not all courts require email or alternative notice. See, e.g., Shaia v. Harvest 16 Mgmt. Sub LLC, 306 F.R.D. 268, 276 (N.D. Cal. 2015) (ordering that notice be provided 17 by U.S. Mail, and not via email, because “mailing addresses will provide the best means 18 of contact”); Hart v. U.S. Bank NA, No. CV 12-2471-PHX-JAT, 2013 WL 5965637, at *6 19 (D. Ariz. Nov. 8, 2013) (“the Court sees no reason why sending notice exclusively via U.S. 20 mail (and not also by email) would not be appropriate in this case. . . . Here, the best 21 practicable notice is first class mail. The Court sees no reason why such notice is 22 inadequate. . . . As a result, the Court does not authorize Plaintiff to send notice via email, 23 as Plaintiff requests”). 24 In light of the Court’s order above that at least 18,962 more Collective members be 25 notified via their personal email address (26,945 in total), the Court finds that sending text 26 messages to all Collective members would be duplicative and not narrowly tailored. The 27 standard is to provide “the best notice practicable under the circumstances,” and Plaintiff 28 does not argue that text messages are better than personal emails, in fact, Plaintiffs 1 considered them interchangeable. See, e.g., ECF No. 64-3 at 345 (stating that “[i]f Sprint 2 agrees to notice by e‐mail, we will not seek notice by text message”). Thus, Plaintiff’s 3 request all Collective members receive text message notice is DENIED. 4 The parties extensively negotiated their joint motion for conditional certification. 5 See ECF No. 64-3. Though email or text message notice was a “non-negotiable” for 6 Plaintiffs, they did not include any backups or alternatives in the joint motion should the 7 personal email addresses not be available. See e.g., Deatrick, 2014 WL 5358723, at *5 8 (fashioning notice to be “by mail, including the issuance of reminder postcards and 9 telephone numbers to facilitate tracing potential class members if mailings are returned as 10 undeliverable”). However, the Court appreciates Plaintiffs’ argument that “it would not 11 [have] ma[d]e the concessions it made with Defendant in the stipulation to conditional 12 certification if notice would not be given via either personal email or text message.” ECF 13 No. 64-1 at 21–22; see ECF No. 64-3 at 243 (stating that “[i]f there are email addresses for 14 the Collective, we will agree to mail and email notice, and forego text message notice. If 15 there are not sufficient email addresses for the Collective as you say, or for some reason 16 Sprint will have difficulty obtaining this information, then notice must go out by mail and 17 text message. But we require either text or email notice”). Given Defendant’s evasive 18 tactics regarding email notice (see, e.g., ECF No. 64-3 at 143, 156, 214, 218) and willful 19 behavior in withholding personal email addresses within its possession, custody, and 20 control, Plaintiffs’ request that notice be given via text message to all individuals that are 21 not current employees and for whom Defendant does not have personal email addresses is 22 GRANTED. The Court ORDERS Defendant to produce phone numbers of Collective 23 members who are both (1) not current employees and (2) for whom Defendant does not 24 have personal email addresses, to the Notice Administrator by April 6, 2020. In accordance 25 with the Court’s November 4th Order, the Notice and Opt-In Consent Form shall be sent 26 by the Notice Administrator via text message to these phone numbers “within seven (7) 27 days of receipt of the [contact information]. The Notice shall provide a website address 28 1 where persons identified in Defendant’s list may obtain an electronic version of the Notice 2 and submit an electronic version of the Opt-In Consent Form.” ECF No. 48 at 6. 3 d. Plaintiffs’ Request that the Claims of Collective Members are tolled from the Date Full Notice was to be Disseminated, on November 25, 4 2019, until the Date that Email and/or Text Notice is Completed 5 The FLSA provides for a two-year statute of limitations for FLSA violations, 6 “except that a cause of action arising out of a willful violation may be commenced within 7 three years after the cause of action accrued.” 29 U.S.C. § 255(a). In a FLSA collective 8 action, statute of limitations runs until a valid consent is filed. 29 U.S.C. § 256(b). 9 “Equitable tolling applies when the plaintiff is prevented from asserting a claim by 10 wrongful conduct on the part of the defendant, or when extraordinary circumstances 11 beyond the plaintiffs control made it impossible to file a claim on time.” Stoll v. Runyon, 12 165 F.3d 1238, 1242 (9th Cir. 1999). “Equitable tolling is extended sparingly[.]” Adams v. 13 Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 542 (N.D. Cal. 2007) (citing Irwin v. Dep’t of 14 Veterans Affairs, 498 U.S. 89, 96 (1990)). District courts are split on the issue of whether, 15 in the context of a FLSA collective-action, a defendant’s refusal to provide contact 16 information for potential plaintiffs is a sufficient reason to equitably toll the statute of 17 limitations. Compare, e.g., Adedapoidle-Tyehimba v. Crunch, LLC, No. 13-cv-00225- 18 WHO, 2013 WL 4082137, at *8 (N.D. Cal. Aug. 9, 2013) (finding that defendants’ refusal 19 to provide contact information for potential plaintiffs was not a basis for equitably tolling 20 the statute of limitations) with Ribot v. Farmers Ins. Group, No. CV 11-02404-DDP- 21 FMOx, 2013 WL 3778784, at *16–*17 (C.D. Cal. July 17, 2013) (finding equitable tolling 22 appropriate where the defendant refused to provide potential plaintiffs’ contact 23 information). “Applying equitable tolling . . . counters the advantage defendants would 24 otherwise gain by withholding potential plaintiffs’ contact information until the last 25 possible moment. Faultless potential plaintiffs should not be deprived of their legal rights 26 on the basis of a defendant’s delay, calculated or otherwise.” Ribot, 2013 WL 3778784, at 27 *17 (quoting Adams, 242 F.R.D. at 543). 28 1 “[T]hose courts that find equitable tolling is appropriate usually rely on the fact that 2 potential plaintiffs, through no fault of their own, did not receive notice of the pending 3 action as a result of the defendant’s refusal to provide contact information.” Margulies v. 4 Tri-County Metro. Transp. Dist. of Or., No. 13cv475-PK, 2013 WL 5593040, at *17 (D. 5 Or. Oct. 10, 2013). Here, though the majority of potential plaintiffs, through no fault of 6 their own, did not receive notice via their personal email addresses, they still received 7 notice via U.S. Mail, which was disseminated in December 2019. Thus, the justifications 8 that “[t]he potential plaintiffs in this case have yet to receive notice of the action due to 9 defendant’s refusal to supply potential plaintiffs’ contact information” do not apply here. 10 See Adams, 242 F.R.D. at 543. Accordingly, the Court DENIES Plaintiff’s request to toll 11 the statute of limitations until email or text notice is completed. 12 e. Plaintiffs’ Request that the Opt-In Period for Collective Members does not Begin until Email and/or Text Notice is Completed 13 In its November 4th Order, the Court ordered that “[e]ligible persons shall be given 14 15 sixty (60) days from the date on which the Notice and Opt-In Consent Form is sent via first class mail in which to return their Opt-In Consent Form.” ECF No. 48 at 6. Notice was 16 disseminated to the Collective by mail on December 13, 2019. Thus, the 60-day deadline 17 has since passed. 18 19 Since the Court is ordering that Defendant provide the Notice Administrator with all personal email addresses within its possession, custody, or control, and phone numbers of 20 Collective members who are not current employees and for whom Defendant does not have 21 personal email addresses, in the interests of justice, the Court GRANTS Plaintiffs’ request 22 and extends the Opt-In Period, but only for those Collective members whose personal 23 email addresses or phone numbers were produced to the Notice Administrator pursuant to 24 this Order. Given the possibility they were already served via U.S. Mail, the Court 25 ORDERS that eligible persons shall be given sixty (60) days from the date on which the 26 Notice and Opt-In Consent Form is sent via email or text in which to return their Opt-In 27 28 Consent Form. 1 f. Plaintiffs’ Requests that Defendant is Deemed to have Waived Any Argument that Any Collective Members should be Excluded from 2 Receiving Notice as a Result of a Prior Settlement and Must 3 Immediately Provide the Notice Administrator with Contact 4 Information for the 2,121 Excluded Individuals 5 In its November 4th Order, the Court required that notice would not be disseminated 6 to certain members of the collective that opted into certain FLSA actions or fully released 7 their FLSA claims. ECF No. 48 at 6. The Court ordered Defendant to “identify to Plaintiffs 8 each action in which excluded individuals have opted in and/or released claims, along with 9 the number of excluded individuals per each lawsuit identified.” ECF No. 48 at 6. Plaintiffs 10 concede that Defendant complied with this order by providing Plaintiffs with a list of the 11 names of 2,121 individuals that it excluded from the Collective roster, a list identifying the 12 actions the individuals opted into or fully released their claims, and the number of 13 individuals in each lawsuit. ECF No. 64-1 at 17, 17 n.1. Upon an in camera review of the 14 spreadsheet sent by Defendant, and a review of the record, the Court confirms that 15 Defendant adhered to the procedural requirements of the Court’s November 4th Order. See 16 Email to Chambers, March 9, 2020; ECF No. 64-3 at 381 (on December 4, 2019, 17 Defendant’s counsel emailed Plaintiff’s counsel the total number of excluded individuals 18 from four lawsuits and eleven individual settlements, including case name, court, and case 19 number); ECF No. 72 at 23–24. 20 However, Plaintiffs’ main contention is that Defendant did not adhere to the 21 substantive requirements of the Court’s order, and improperly excluded “a vast majority” 22 of the individuals listed. ECF No. 64-1 at 17 n.1. Plaintiffs surmise that Defendant excluded 23 every individual who may have released a portion of their claims, as opposed to their entire 24 claims. Id. Notably, Defendant does not dispute whether it properly or improperly excluded 25 individuals, and instead focuses its argument on whether its email to Plaintiffs complied 26 with the Court’s November 4th Order. ECF No. 72 at 24. However, Defendant does state 27 that it “is still waiting to meet and confer on this issue, so that the Parties could determine 28 the logistics of relaying the information[.]” Id. 1 Based on the contentions of both parties, the Court cannot determine whether 2 Defendant complied with the substantive requirements of the Court’s November 4th Order. 3 ECF No. 48 at 6 (requiring that notice would not be disseminated to certain members of 4 the collective that opted into certain FLSA actions or fully released their FLSA claims). 5 However, upon a review of the four lawsuits at issue,6 the Court has the impression that 6 Plaintiffs’ allegations are plausible. 7 The conditionally certified FLSA “class period” in the instant case spans from “three 8 years prior to the filing of the complaint [i.e., February 28, 2016] until resolution of this 9 action.” ECF No. 48 at 3, 5. Upon a cursory review of Drouillard,7 Oliphant,8 Rubio,9 and 10 Tharpe,10 the Court notes that the releases in the three settled cases do not include future 11

12 6 The four lawsuits from which Defendant seeks to exclude members from the Collective 13 are: (1) Drouillard v. Sprint/United Management Company, No. 16cv624-ADS-ATK 14 (E.D.N.Y) (hereinafter, “Drouillard”); (2) Oliphant v. Sprint/United Management Company, No. 18cv353-JMG-MDN (D. Neb.) (hereinafter, “Oliphant”); (3) Rubio v. 15 Sprint/United Management Company, No. 17cv2231-SVW-GJS (C.D. Cal.) (hereinafter, 16 “Rubio”); and (4) Tharpe v. Sprint/United Management Company, No. BC644645 (L.A. Super. Ct.) (hereinafter, “Tharpe”). 17 7 In Drouillard, where plaintiffs alleged FLSA wage-and-hour claims (e.g., failure by 18 Defendant to pay wages, minimum wages, or overtime), the lawsuit commenced on 19 February 5, 2016, and the class period lasted from February 5, 2010 to March 28, 2019. Drouillard ECF No. 114 at 2. 20 8 In Oliphant, plaintiffs allege FLSA wage-and-hour claims (e.g., unpaid wages and 21 overtime pay). Oliphant ECF No. 25 at 3–4. On May 20, 2019, the FLSA collective was conditionally certified, to include employees who worked for Defendant beginning in May 22 20, 2016. Oliphant ECF No. 46 at 7; Oliphant ECF No. 51. 23 9 In Rubio, where plaintiffs alleged FLSA wage-and-hour claims (e.g., failure to pay wages, 24 minimum wages, or overtime, and off-the-clock work), the lawsuit commenced on December 9, 2016, and the class period lasted from December 9, 2012 to March 3, 2017. 25 Rubio ECF No. 34 at 3; Rubio ECF No. 27-2 at 34, 37. 26 10 In Tharpe, the class action complaint, filed in the state court, does not allege any FLSA 27 claims; instead it alleges a variety of California Labor Code violations and PAGA claims. Tharpe ECF No. 20. The lawsuit commenced on December 22, 2016, and the Class 28 1 claims, and only include claims during their respective “class periods.” See, e.g, Rubio ECF 2 No. 34 at 6; Drouillard ECF No. 114 at 2. As an example, the class period in Rubio only 3 overlaps with the instant case for approximately one year. Compare ECF No. 48 at 3, 5 4 (February 28, 2016 to present) with Rubio ECF No. 27-2 at 34 (December 9, 2012 to March 5 3, 2017). Thus, an employee who released her claim in Rubio but continued to work for 6 Defendant would not be excluded from the Collective in this case because she did not fully 7 release her FLSA claim. Additionally, the Court notes that the FLSA provides for a two- 8 year statute of limitations (three years for willful violations), which further narrows the 9 overlap of the claims here. See 29 U.S.C. § 255(a). Without more, the Court does not reach 10 the merits of whether Plaintiffs’ requested sanctions should be imposed. Therefore, 11 Plaintiffs’ requests are DENIED WITHOUT PREJUDICE. 12 Regarding whether Defendant properly excluded members from the Collective, the 13 parties shall meet and confer in an attempt to resolve this issue by March 30, 2020. Should 14 the parties not be able to resolve their dispute, they must jointly e-mail chambers at 15 efile_goddard@casd.uscourts.gov by April 1, 2020 to schedule a telephonic conference, 16 including short, neutral summaries of each party’s position and at least three proposed 17 times mutually agreed upon by the parties for the telephonic conference. 18 g. Plaintiffs’ Request that Defendant Bear Any Additional Costs of Notice Administration Authorized by the Court 19 In its November 4th Order, the Court stated that “Plaintiffs shall pay the costs of the 20 [Notice] Administrator, subject to claiming the costs as a reimbursable litigation expense.” 21 ECF No. 48 at 6. Had Defendant produced the personal email addresses during the first 22 round of notice administration, the costs of notice administration would have been borne 23 by Plaintiffs. Thus, the Court finds that ordering the Defendant to bear additional notice 24 administrations costs is unnecessary. Accordingly, Plaintiff’s request is DENIED. 25 26

27 whether a non-FLSA settlement would include terms releasing Defendants from FLSA 28 1 h. Plaintiffs’ Request that Monetary Sanctions be Imposed Against Defendant 2 In light of the corrective measures imposed above, the Court declines to issue 3 monetary sanctions at this time. Thus, Plaintiff’s request is DENIED. See, e.g., Mendez, 4 540 F.3d at 1133 (noting that a court’s inherent powers “must be exercised with restraint 5 and discretion”). 6 8 For the reasons set forth above, the Court orders as follows: 9 1. Plaintiffs’ motion for Rule 11 sanctions is DENIED. 10 2. Plaintiffs’ motion for Rule 16 sanctions is DENIED 11 3. Plaintiffs’ motion for sanctions pursuant to the Court’s inherent authority, 12 regarding Defendant’s delayed production of personal email addresses to the 13 Notice Administrator, is DENIED. 14 4. Plaintiffs’ motion for sanctions pursuant to the Court’s inherent authority, 15 regarding Defendant’s failure to produce personal email addresses “to the 16 extent available,” is GRANTED. 17 5. The Court ORDERS Defendant to produce all personal email addresses 18 within its possession, custody, or control (including, but not limited to, the 19 26,945 personal email addresses produced to Plaintiff pursuant to the Court’s 20 order granting Plaintiffs’ motion to compel) to the Notice Administrator by 21 April 6, 2020. The Notice and Opt-In Consent Form shall be sent by the 22 Notice Administrator via these personal email addresses within seven (7) days 23 of receipt of the contact information, or as soon thereafter as practicable. The 24 Notice shall provide a website address where persons identified in 25 Defendant’s list may obtain an electronic version of the Notice and submit an 26 electronic version of the Opt-In Consent Form. 27 6. The Court ORDERS Defendant to produce phone numbers of Collective 28 members who are both (1) not current employees and (2) for whom Defendant 1 does not have personal email addresses, to the Notice Administrator by 2 April 6, 2020. The Notice and Opt-In Consent Form shall be sent by the 3 Notice Administrator via these personal email address within seven (7) days 4 of receipt of the contact information, or as soon thereafter as practicable. The 5 Notice shall provide a website address where persons identified in 6 Defendant’s list may obtain an electronic version of the Notice and submit an 7 electronic version of the Opt-In Consent Form. 8 7. The Court ORDERS that eligible persons (those Collective members whose 9 personal email addresses or phone numbers were produced to the Notice 10 Administrator pursuant to this Order) shall be given sixty (60) days from the 11 date on which the Notice and Opt-In Consent Form is sent via email or text in 12 which to return their Opt-In Consent Form. 13 8. The Court ORDERS the parties to meet and confer regarding whether 14 Defendant properly excluded members from the Collective by 15 March 30, 2020. Should the parties not be able to resolve their dispute, they 16 must jointly e-mail chambers at efile goddard@casd.uscourts.gov by 17 April 1, 2020 to schedule a telephonic conference, including short, neutral 18 summaries of each party’s position and at least three proposed times mutually 19 agreed upon by the parties for the telephonic conference. 20 22 Dated: March 23, 2020 _ Siow. Xion Honorable Allison H. Goddard 24 United States Magistrate Judge 25 26 27 28