1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 NATHAN BELL, individually and on behalf ) Case No.: 1:20-cv-0061- NONE JLT of members of the general public similarly ) 12 situated, ) ORDER GRANTING DEFENDANTS’ MOTION ) TO COMPEL PLAINTIFF TO SUPPLEMENT HIS 13 Plaintiff, ) INITIAL DISCLOSURES ) 14 v. ) (Doc. 14) ) 15 NUSIL TECHNOLOGY LLC, et al., ) ) 16 Defendants. ) ) 17
18 Nathan Bell is a former employee of Nusil Technology and Avantar Performance Materials and 19 asserts Defendants failed to compensate him—and other employees—for all hours worked and missed 20 meal periods and/or rest breaks. Plaintiff seeks to hold Defendants liable for wage and hour violations 21 under California law. (See Doc. 2-1) Defendants now seek to compel Plaintiff to supplement his initial 22 disclosures, particularly related to his claimed damages. (Doc. 14) For the reasons set forth below, 23 Defendants’ motion to compel is GRANTED. 24 I. Background 25 Plaintiff asserts he was employed by Defendants “as an hourly-paid, non-exempt employee, 26 from approximately May 2013 to approximately May 2018.” (Doc. 2-1 at 9, ¶ 19) He alleges, 27 “Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt 28 employees within the State of California.” (Id., ¶ 26) For example, he asserts Defendants failed to pay 1 him, and other employees, “for all regular and/or overtime wages earned and for missed meal periods 2 and rest breaks in violations of California law.” (Id.) In addition, Plaintiff contends “Defendants knew 3 or should have known that Plaintiff and the other class members were entitled to certain wages for 4 overtime compensation and that they were not receiving accurate overtime compensation for all hours 5 worked.” (Id. at 10, ¶ 27) Plaintiff also alleges that he and other employees did not receive “minimum 6 wages for all hours worked,” or all wages due upon discharge. (Id. at 10-11, ¶¶ 31-33) 7 On October 21, 2019, Plaintiff filed a class action in Kern County Superior Court, raising the 8 following causes of action: (1) unpaid overtime in violation of Cal. Labor Code §§ 510 and 1198; (2) 9 unpaid meal period premiums in violation of Cal. Labor Code §§ 226.7 and 512(a); (3) unpaid rest 10 period premiums in violation of Cal. Labor Code § 226.7; (4) unpaid minimum wages in violation of 11 Cal. Labor Code §§ 1194, 1197, and 1197.1; (5) failure to pay timely final wages in violation of 12 violation of Cal. Labor Code §§ 201 and 202; (6) untimely wages during employment in violation of 13 Cal. Labor Code § 204; (7) non-compliant wage statements in violation of Cal. Labor Code § 226(a); 14 (8) failure to keep requisite payroll records in violation of Cal. Labor Code § 1174(d); unreimbursed 15 business expenses in violation of Cal. Labor Code §§ 2800 and 2802; and (10) violation of Cal. Bus. & 16 Prof. §§ 17200, et. seq. (See Doc. 2-1 at 3) 17 On January 13, 2020, Defendants filed a Notice of Removal, thereby initiating the action in this 18 Court. (Doc. 1) Defendants assert the Court has diversity jurisdiction over the action, and pursuant to 19 the Class Action Fairness Act. (Id.) According to Defendants, “the amount in controversy, based on 20 the allegations in the Complaint[,] is conservatively a minimum of $5,284,259.47, not including 21 attorneys’ fees.” (Id. at 3) Further, Defendants assert that “if the Complaint is reasonably construed as 22 seeking one missed rest period and one missed meal period each day, the potential exposure increases 23 by $11,726,19540.” (Id.) Plaintiff filed a motion to remand on January 28, 2020, arguing in part that 24 the amount in controversy is not required for the Class Action Fairness Act. (See Doc. 4 at 2) 25 While the motion to remand remains under submission before the Court (see Doc. 8), Plaintiff 26 served his initial disclosures required by Rule 26 of the Federal Rules of Civil Procedure on July 8, 27 2020. (See Doc. 14 at 6; Doc. 14-1 at 1-5) On July 27, 2020, Defendants informed Plaintiff’s counsel 28 that his initial disclosures “were deficient” because he “did not provide a description of damages 1 claimed” and inquired whether Plaintiff would supplement the disclosures. (Id.) After Plaintiff did not 2 respond, Defendants again contacted Plaintiff’s counsel regarding the deficiencies on July 31, 2020, to 3 which there was no response. (Id.) Defendants report they contacted counsel for a third time on 4 August 3, 2020, “asking that Plaintiff respond to the letter and supplement his Initial Disclosures, and 5 also explained the need for a meet and confer conference.” (Id.) According to Defendants, “Plaintiff 6 provided an evasive response which did not respond to these questions.” (Id.) 7 On August 5 and 6, Defendants contacted Plaintiff’s counsel seeking a time to meet and confer 8 regarding the dispute. (Doc. 14 at 6-7) Plaintiff’s counsel responded, “They were not available for a 9 call until August 14,” and the parties had a conference on that date. (Id. at 7) Because the parties were 10 unable to come to an agreement, Defendants filed the motion to compel Plaintiff to supplement his 11 initial disclosures now pending before the Court on August 19, 2020. 12 The parties failed to file a joint written statement regarding the discovery dispute. On the date 13 of the filing deadline—September 2, 2020—Melissa Fassett, counsel for Defendants, filed a 14 declaration at 12:03 p.m. (Doc. 17) Ms. Fassett reported she sent a draft of the joint statement to 15 Plaintiff’s Counsel on August 19 and a followed up on August 20, 2020. (Id. at 2, Fassett Decl. ¶ 2) 16 She reported that as of the time of filing, Plaintiff “did not provide [her] with information to be 17 included.” (Id., ¶ 3) Approximately twenty minutes later, “Plaintiff’s counsel transmitted Plaintiff’s 18 portion of the proposed joint statement to Defendants’ counsel and requested that Defendants’ counsel 19 provide her consent for Plaintiff’s counsel to file the statement.” (Doc. 18 at 2-3) After Defendants 20 did not agree to the portions prepared by Plaintiff, Ms. Younger filed a declaration attaching Plaintiff’s 21 portion to the statement at 6:09 p.m. (See id. at 41-55) 22 II. Standards Governing Initial Disclosures 23 Rule 26 of the Federal Rules of Civil Procedure governs initial disclosures by the parties, who 24 must disclose information such as “the name and, if known, the address and telephone number of each 25 individual likely to have discoverable information--along with the subjects of that information--that 26 the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). The 27 parties must disclose “a computation of each category of damages claimed by the disclosing party-- 28 who must also make available for inspection and copying as under Rule 34 the documents or other 1 evidentiary material, unless privileged or protected from disclosures, on which each computation is 2 based, including materials bearing on the nature and extent of injuries suffered.” Id. Fed. R. Civ. P. 3 26(a)(1)(A)(iii).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 NATHAN BELL, individually and on behalf ) Case No.: 1:20-cv-0061- NONE JLT of members of the general public similarly ) 12 situated, ) ORDER GRANTING DEFENDANTS’ MOTION ) TO COMPEL PLAINTIFF TO SUPPLEMENT HIS 13 Plaintiff, ) INITIAL DISCLOSURES ) 14 v. ) (Doc. 14) ) 15 NUSIL TECHNOLOGY LLC, et al., ) ) 16 Defendants. ) ) 17
18 Nathan Bell is a former employee of Nusil Technology and Avantar Performance Materials and 19 asserts Defendants failed to compensate him—and other employees—for all hours worked and missed 20 meal periods and/or rest breaks. Plaintiff seeks to hold Defendants liable for wage and hour violations 21 under California law. (See Doc. 2-1) Defendants now seek to compel Plaintiff to supplement his initial 22 disclosures, particularly related to his claimed damages. (Doc. 14) For the reasons set forth below, 23 Defendants’ motion to compel is GRANTED. 24 I. Background 25 Plaintiff asserts he was employed by Defendants “as an hourly-paid, non-exempt employee, 26 from approximately May 2013 to approximately May 2018.” (Doc. 2-1 at 9, ¶ 19) He alleges, 27 “Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt 28 employees within the State of California.” (Id., ¶ 26) For example, he asserts Defendants failed to pay 1 him, and other employees, “for all regular and/or overtime wages earned and for missed meal periods 2 and rest breaks in violations of California law.” (Id.) In addition, Plaintiff contends “Defendants knew 3 or should have known that Plaintiff and the other class members were entitled to certain wages for 4 overtime compensation and that they were not receiving accurate overtime compensation for all hours 5 worked.” (Id. at 10, ¶ 27) Plaintiff also alleges that he and other employees did not receive “minimum 6 wages for all hours worked,” or all wages due upon discharge. (Id. at 10-11, ¶¶ 31-33) 7 On October 21, 2019, Plaintiff filed a class action in Kern County Superior Court, raising the 8 following causes of action: (1) unpaid overtime in violation of Cal. Labor Code §§ 510 and 1198; (2) 9 unpaid meal period premiums in violation of Cal. Labor Code §§ 226.7 and 512(a); (3) unpaid rest 10 period premiums in violation of Cal. Labor Code § 226.7; (4) unpaid minimum wages in violation of 11 Cal. Labor Code §§ 1194, 1197, and 1197.1; (5) failure to pay timely final wages in violation of 12 violation of Cal. Labor Code §§ 201 and 202; (6) untimely wages during employment in violation of 13 Cal. Labor Code § 204; (7) non-compliant wage statements in violation of Cal. Labor Code § 226(a); 14 (8) failure to keep requisite payroll records in violation of Cal. Labor Code § 1174(d); unreimbursed 15 business expenses in violation of Cal. Labor Code §§ 2800 and 2802; and (10) violation of Cal. Bus. & 16 Prof. §§ 17200, et. seq. (See Doc. 2-1 at 3) 17 On January 13, 2020, Defendants filed a Notice of Removal, thereby initiating the action in this 18 Court. (Doc. 1) Defendants assert the Court has diversity jurisdiction over the action, and pursuant to 19 the Class Action Fairness Act. (Id.) According to Defendants, “the amount in controversy, based on 20 the allegations in the Complaint[,] is conservatively a minimum of $5,284,259.47, not including 21 attorneys’ fees.” (Id. at 3) Further, Defendants assert that “if the Complaint is reasonably construed as 22 seeking one missed rest period and one missed meal period each day, the potential exposure increases 23 by $11,726,19540.” (Id.) Plaintiff filed a motion to remand on January 28, 2020, arguing in part that 24 the amount in controversy is not required for the Class Action Fairness Act. (See Doc. 4 at 2) 25 While the motion to remand remains under submission before the Court (see Doc. 8), Plaintiff 26 served his initial disclosures required by Rule 26 of the Federal Rules of Civil Procedure on July 8, 27 2020. (See Doc. 14 at 6; Doc. 14-1 at 1-5) On July 27, 2020, Defendants informed Plaintiff’s counsel 28 that his initial disclosures “were deficient” because he “did not provide a description of damages 1 claimed” and inquired whether Plaintiff would supplement the disclosures. (Id.) After Plaintiff did not 2 respond, Defendants again contacted Plaintiff’s counsel regarding the deficiencies on July 31, 2020, to 3 which there was no response. (Id.) Defendants report they contacted counsel for a third time on 4 August 3, 2020, “asking that Plaintiff respond to the letter and supplement his Initial Disclosures, and 5 also explained the need for a meet and confer conference.” (Id.) According to Defendants, “Plaintiff 6 provided an evasive response which did not respond to these questions.” (Id.) 7 On August 5 and 6, Defendants contacted Plaintiff’s counsel seeking a time to meet and confer 8 regarding the dispute. (Doc. 14 at 6-7) Plaintiff’s counsel responded, “They were not available for a 9 call until August 14,” and the parties had a conference on that date. (Id. at 7) Because the parties were 10 unable to come to an agreement, Defendants filed the motion to compel Plaintiff to supplement his 11 initial disclosures now pending before the Court on August 19, 2020. 12 The parties failed to file a joint written statement regarding the discovery dispute. On the date 13 of the filing deadline—September 2, 2020—Melissa Fassett, counsel for Defendants, filed a 14 declaration at 12:03 p.m. (Doc. 17) Ms. Fassett reported she sent a draft of the joint statement to 15 Plaintiff’s Counsel on August 19 and a followed up on August 20, 2020. (Id. at 2, Fassett Decl. ¶ 2) 16 She reported that as of the time of filing, Plaintiff “did not provide [her] with information to be 17 included.” (Id., ¶ 3) Approximately twenty minutes later, “Plaintiff’s counsel transmitted Plaintiff’s 18 portion of the proposed joint statement to Defendants’ counsel and requested that Defendants’ counsel 19 provide her consent for Plaintiff’s counsel to file the statement.” (Doc. 18 at 2-3) After Defendants 20 did not agree to the portions prepared by Plaintiff, Ms. Younger filed a declaration attaching Plaintiff’s 21 portion to the statement at 6:09 p.m. (See id. at 41-55) 22 II. Standards Governing Initial Disclosures 23 Rule 26 of the Federal Rules of Civil Procedure governs initial disclosures by the parties, who 24 must disclose information such as “the name and, if known, the address and telephone number of each 25 individual likely to have discoverable information--along with the subjects of that information--that 26 the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). The 27 parties must disclose “a computation of each category of damages claimed by the disclosing party-- 28 who must also make available for inspection and copying as under Rule 34 the documents or other 1 evidentiary material, unless privileged or protected from disclosures, on which each computation is 2 based, including materials bearing on the nature and extent of injuries suffered.” Id. Fed. R. Civ. P. 3 26(a)(1)(A)(iii). 4 Further, parties have a duty to supplement or correct their initial disclosures “in a timely 5 manner if the party learns that in some material respect the disclosure or response is incomplete or 6 incorrect, and if the additional or corrective information has not otherwise been made known to the 7 other parties during the discovery or in writing.” Fed. R. Civ. P. 26(e)(1)(A). If a party fails to make 8 any disclosures required by Rule 26(a), another party “may move to compel disclosures and for 9 appropriate sanctions.” Fed. R. Civ. P. 37(a)(3)(A). 10 III. Discussion and Analysis 11 In Plaintiff’s initial disclosures, Plaintiff stated that he “on behalf of himself, and all others 12 similarly situated, is seeking damages, including unpaid minimum and overtime wages; premium 13 wages; liquidated damages; actual, consequential, and incidental losses and damages, according to 14 proof; restitution; interest; and reasonable attorneys’ fees and litigation costs.” (Doc. 14-1 at 4) 15 Plaintiff indicated also: 16 Plaintiff is currently unable to access the full extent of Defendants’ wrongful conduct at this early state of litigation. The amount controversy for Plaintiff, including but no 17 limited to claims to compensatory damages, restitution, penalties, wages, premium pay, and pro rata share of attorneys’ fees is less than $75,000. Plaintiff reserves the 18 right to supplement this disclosure when Plaintiff discovers facts and/or documents relevant to the computation of damages. 19
20 (Id. at 4-5) 21 Defendants contend this disclosure fails to comply with the requirements of Rule 26, because 22 Plaintiff did “nothing to quantify the damages he claims to have incurred in each of the claims he has 23 asserted.” (Doc. 14 at 8) Defendants observe, “FRCP 26(a)(1)(A)(iii) expressly obligates a plaintiff 24 to provide a computation of each category of damages claimed, accompanied by the documents 25 supporting that claim.” (Id.) Defendants note that in the complaint, Plaintiff “alleged specific 26 statutory violations,” including: 27 • Labor Code sections 510 and 1198 – unpaid overtime 28 • Labor Code sections 226.7 and 512(a) – failure to provide meals, breaks 1 • Labor Code sections 1194, 1197, 1197.1 – failure to pay minimum wage 2 • Labor Code sections 201, 202, 203, 204 – failure to timely pay wages 3 • Labor Code section 226(a) – failure to provide wage statements 4 • Labor Code section 1174(d) – failure to keep accurate payroll records 5 • Labor Code sections 2800, 2802 – failure to reimburse expenses 6 (See Doc. 14 at 8-9) Because Plaintiff “alleged that he suffered damage as a result of each of these 7 alleged violations,” Defendants assert he “must provide information about what he believes his 8 damages in each category may be…” (Id. at 9) Thus, Defendants seek an order “compelling Plaintiff 9 to supplement his Initial Disclosures by providing the calculations of damages he is asserting on his 10 own behalf, under each claim asserted, and provide the documents on which his claims are based.” 11 (Id. at 11) 12 Plaintiff contends he is not obligated to provide a calculation of damages “early in the case 13 before all relevant documents or evidence has been obtained by the plaintiff.” (Doc. 8 at 47, quoting 14 Cardoza v. Bloomin’ Brands, Inc., 2015 WL 3875916, at *2 (D. Nev. June 22, 2015). Plaintiff 15 observes that in Cardoza, the plaintiff brought “a wage and hour case brought under the Fair Labor 16 Standards Act, [and] the court found that it was sufficient for the wage and hour plaintiff to provide the 17 formula by which damages would be calculated by way of the initial disclosures.” (Id.) According to 18 Plaintiff, he “offered to provide a damages formula” during the meet and confer process, with which “ 19 Defendants can easily determine their exposure using their own records, for purposes of understanding 20 the contours of their potential exposure and make informed decisions as to settlement and discovery, 21 thereby satisfying the essential purpose of the initial disclosure requirements.” (Id. at 53-54) 22 Plaintiff claims he plans to “rely upon surveys of class members, expert testimony, and 23 statistical sampling of the defendants-employers’ s records to establish damages.” (Doc. 8 at 47) 24 However, the “pay records and time cards of all class members… are within the sole control and 25 custody of the Defendants in this case.” (Id.) Plaintiff maintains that “[w]ithout access to exact 26 frequency of the violations of wage and hour law, Plaintiff cannot provide a meaningful estimate of 27 damages.” (Id. at 48) Further, Plaintiff asserts “the identities of the witnesses and the documents upon 28 which the putative Class will provide damages are within the exclusive control and custody of the 1 Defendants.” (Id. at 52) Therefore, Plaintiff concludes he should not be compelled to supplement his 2 Initial Disclosures. 3 Plaintiff fails to recognize that Defendants are seeking to compel him to identify his personal 4 damages, rather than the damages of the putative class. As Defendants observe, Plaintiff asserted in 5 his Initial Disclosures that his damages—including “compensatory damages, restitution, penalties, 6 wages, [and] premium pay—well has his expected share of attorneys fees, are “less than $75,000.00. 7 (See Doc. 14-1 at 4-5) However, Plaintiff failed to identify his damages for any of the causes of action 8 identified in the complaint. For example, Plaintiff fails to identify the amount of lost wages he 9 believes are due, or any unreimbursed business expenses that he incurred while employed by 10 Defendants. There is no explanation as to why Plaintiff is unable to provide such information, and 11 payroll records for putative class members are not necessary for Plaintiff to calculate his personal 12 damages as required under Rule 26. 13 As courts in the Ninth Circuit have observed, “the ‘computation’ of damages required by Rule 14 26(a)(1)(C) contemplates some analysis; for instance, in a claim for lost wages, there should be some 15 information relating to hours worked and pay rate.” City & County of San Francisco v. Tutor-Saliba 16 Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003) (citing, e.g., Bullard v. Roadway Exp., 3 Fed. Appx. 418, 17 420 (6th Cir. 2001); Burnett v. United States, at 2016 WL 3392263 (C.D. Cal. June 14, 2016) (granting 18 the defendant’s motion to compel the plaintiff to supplement the initial disclosures with “a computation 19 of Plaintiff’s wage loss damages”). Further, where a plaintiff identifies several causes of action in a 20 complaint, the plaintiff “should disclose a computation of each category of damages attributable to each 21 cause of action.” See Frontline Med. Assocs. v. Coventry, 263 F.R.D. 567, 569 (C.D. Cal. 2009) 22 (noting the plaintiff sought damages for three causes of action in his complaint—breach of contract, 23 violation of fair practice, and interference with prospective economic advantage— and needed to 24 disclose his damages under each cause of action). 25 Because Plaintiff has identified ten causes of action in his complaint and asserts he personally 26 is seeking damages for these causes of action, he is obligated under Rule 26 to identify the damages 27 claimed for each cause of action. See Tutor-Saliba Corp., 218 F.R.D. at 221; Frontline Med. Assocs., 28 263 F.R.D. at 569. For example, he must identify his hourly rates for purposes of calculating lost 1 wages, or meal and rest period premiums, and his own unreimbursed business expenses. Such 2 information is within the knowledge of Plaintiff and does not require class payroll data for calculation. 3 IV. Conclusion and Order 4 Based on the foregoing, the Court concludes Plaintiff's initial disclosures fail to provide the 5 information required by Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure. Accordingly, the 6 Court ORDERS: 7 1. Defendants’ motion to compel Plaintiff to supplement his Initial Disclosures (Doc. 14) 8 is GRANTED; 9 2. Within two weeks of the date of service of this order, Plaintiff SHALL provide the 10 calculations of damages he is asserting on his own behalf, for each claim asserted. 11 12 IT IS SO ORDERED.
13 Dated: September 8, 2020 /s/ Jennifer L. Thurston 14 UNITED STATES MAGISTRATE JUDGE
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