Cowley v. Prudential Security, Inc.

• Court: District Court, E.D. California
• Decided: January 6, 2021
• Docket: 1:19-cv-01472
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JOSHUA COWLEY, on behalf of themselves ) Case No.: 1:19-cv-01472-NONE-JLT and all others similarly situated, ) 12 ) ORDER DENYING MOTION TO COMPEL Plaintiff, ) DISCOVERY RESPONSES 13 ) v. ) (Doc. 49) 14 ) 15 PRUDENTIAL SECURITY, INC., ) ) 16 Defendant. )

17 Plaintiff moves to compel Defendant to provide responses to Plaintiff’s Special Interrogatories 18 Nos. 1 and 2. (Doc. 49.) Specifically, in response to its Special Interrogatory Number 1, Plaintiff seeks 19 the names and contact information of putative class members, and in Special Interrogatory Number 2, 20 Plaintiff seeks the names and contact information of putative collective members. (Id.) The parties 21 filed a joint statement regarding the discovery disagreement on November 23, 2020. (Doc. 64.) For the 22 reasons set forth below, Plaintiff’s motion to compel is DENIED. 23 I. Relevant Background 24 Plaintiff brings this class and collective action under the Fair Labor Standards Act, 29 U.S.C. § 25 201 et seq. and Rule 23 of the Federal Rules of Civil Procedure for violations of the FLSA and of 26 California wage and hour laws. (Doc. 64 at 2.) Plaintiff alleges that Defendant has failed to pay its 27 employees for all hours worked under both federal and state law, including at minimum wage and 28 overtime rates. (Id.) On behalf of the nationwide putative collective, Plaintiff alleges that Defendant 1 does not pay all required overtime or minimum wages. (Doc. 1.) Under California law, Plaintiff 2 alleges that Defendant has failed to provide bona fide meal and rest breaks, has failed to reimburse 3 employees for business expenses, has failed to provide compliant wage statements, and has failed to 4 pay final wages as required by law. (Id.) The parties have propounded discovery in the case, but no 5 documents have been exchanged in response to formal discovery. (Doc. 64 at 2.) The Court has 6 recommended that the motion to change venue to the Eastern District of Michigan be granted, and a 7 decision on the motion for conditional certification in pending. (Docs. 57, 67.) The motion for class 8 certification is due later this year. (Doc. 62 at 2) 9 The subjects of Plaintiff’s Motion to Compel are Defendant’s responses to Plaintiff’s Special 10 Interrogatories Nos. 1 and 2, related to information about putative Class and Collective Members, 11 respectively. (Doc. 64 at 2.) On April 9, 2020, Plaintiff served his Special Interrogatories, Set One: 12 (Gordan Decl. ¶ 2, Doc. 64-2 at 2.) 13 INTERROGATORY NO. 1: 14 Identify all Putative Class Members, stating each individual’s (a) full name; (b) title and dates of employment with Defendant; (c) employment location(s) at which the individual 15 worked for Defendant; (d) last known residence, telephone number, and cellular phone number; and (e) last known personal email address. 16

17 INTERROGATORY NO. 2: 18 Identify all Putative Collective Members, stating each individual’s (a) full name; (b) title and dates of employment with Defendant; (c) employment location(s) at which the 19 individual worked for Defendant; (d) last known residence, telephone number, and cellular phone number; and (e) last known personal email address. 20

21 (Doc. 64-3 at 7.) 22 On May 4, 2020, Defendant e-mailed Plaintiff to request an extension of the deadline in which 23 to serve responses. (Gordan Decl. ¶ 3.) In this email, Defendant’s counsel stated that COVID had 24 inflicted a heavy toll on Defendant’s key personnel, including management that would be responsible 25 for responding to Plaintiff’s discovery. (Id.) The email also stated that Michigan, where Defendant’s 26 documents are located, was under one of the strictest quarantines in the county. (Id.) On May 6, 2020, 27 Plaintiff sent an e-mail granting Defendant’s request and extending Defendant’s deadline to serve 28 responses to June 19, 2020. (Id.) 1 On June 19, 2020, Defendant served its Responses to Plaintiff’s Special Interrogatories, Set 2 One. (Gordon Decl. ¶ 4.) On July 9, 2020, Defendant served Supplemental Responses to Plaintiff’s 3 Special Interrogatories, Set One. (Id. at ¶ 5.) In response to Plaintiff’s Special Interrogatory No. 1, 4 Defendant agreed to provide names and last-known contact information for putative class members to 5 a Third-party administrator as part of a Belaire-West process and stated that “[o]nce the Belaire-West 6 opt out period has expired and upon confirmation from the Third-party administrator and the Court, 7 Defendant will confirm which names it can provide to Plaintiff.” (Id.) In response to Plaintiff’s Special 8 Interrogatory No. 2, Defendant cited a new line of cases not previously cited in its initial response to 9 No. 2 and added an additional undue burden objection. (Id.) Defendant represented that it would 10 provide the names and last-known contact information of putative collective members to a Third-Party 11 Administrator as part of the Belaire-West process and that upon its completion, Defendant would 12 confirm which names it can provide to Plaintiff. (Id.) 13 The parties finalized the Belaire-West notice and the third-party administrator completed the 14 mailing of the notice to putative class and collective members on July 10, 2020. (Gordon Decl. ¶ 6.) 15 On August 11, 2020, Defendant served its Second Supplemental Reponses to Plaintiff’s Special 16 Interrogatories, Set One. (Id.) In its response to Plaintiff’s Special Interrogatory No. 2, Defendant 17 stated that after conditional certification has been granted, Defendant will allow Plaintiff to inspect its 18 business records pursuant to Federal Rule of Civil Procedure 33(d). (Id.) On August 20 and 31, 2020, 19 Plaintiff’s counsel received class lists, less timely opt-outs, from the third-party administrator and sent 20 those lists to Defendant’s counsel. (Id.) These class lists contained the names and mailing addresses of 21 putative class and collective members. (Id.) 22 On July 2, 2020, Plaintiff sent Defendant a meet and confer letter, detailing the issues with 23 respect to Defendant’s Responses to Plaintiff’s Discovery Requests. (Gordon Decl. ¶ 7.) On July 8, 24 2020, Defendant responded to Plaintiff’s meet and confer letter. (Id. at ¶ 8.) On July 30, 2020, Plaintiff 25 sent Defendant a second meet-and-confer letter. (Id. at ¶ 9.) On August 6, 2020, Defendant responded 26 to Plaintiff’s meet-and-confer letter of July 30, 2020, via e-mail. (Id. at ¶ 10.) On August 17, 2020, 27 Plaintiff sent Defendant an e-mail attempting to confirm that the parties were at an impasse with 28 regards to Defendant’s Responses to Plaintiff’s Special Interrogatories Nos. 1 and 2. (Id. at ¶ 11.) On 1 August 18, 2020, Defendant responded to Plaintiff’s e-mail of August 17, 2020, seeking further 2 clarification of Plaintiff’s position. (Id. at ¶ 12.) On August 21, 2020, Plaintiff sent Defendant a 3 detailed e-mail further outlining its positions with regards to Special Interrogatories Nos. 1 and 2 and 4 inquired about Defendant’s availability for a phone call to discuss same. (Id. at ¶ 13.) On August 24, 5 2020, Defendant responded to Plaintiff’s e-mail of August 21, 2020, responding to several of 6 Plaintiff’s concerns and outlining Defendant’s position. (Id. at ¶ 14.) Defense counsel also provided 7 his availability for a phone call to discuss Plaintiff’s concerns. (Id.) 8 On August 25, 2020, counsel for the parties conferred telephonically to resolve the outstanding 9 issues with regards to the Special Interrogatories Nos. 1 and 2. (Gordon Decl. ¶ 15.) Several issues 10 were discussed, including Defendant’s suggestion that Plaintiff send a copy service to copy documents 11 at Defendant’s headquarters. (Id.) Despite these efforts, the parties were unable to reach agreement as 12 to whether Defendant was required to produce the telephone numbers for putative class and collective 13 members and whether Defendant’s offer to make available business records pursuant to Rule 33(d) of 14 the Rules of Federal Civil Procedure was sufficient to satisfy its discovery obligations. (Id.) 15 On August 28, 2020, Plaintiff sent Defendant an e-mail affirming his position as outlined 16 during the phone call of August 25, 2020, and stating that, if a resolution could not be reached, 17 Plaintiff would seek the Court’s intervention via Informal Discovery Conference. (Gordon Decl. ¶ 16.) 18 On August 31, 2020, Defendant responded to Plaintiff’s e-mail of August 28, 2020, confirming that 19 the parties were unable to reach a resolution, and expressed its willingness to reengage in compromise 20 discussions but offered no alternative compromise. (Id. at ¶ 17.) On September 1, 2020, recognizing 21 impasse was reached based on Defendant’s insistence on only making records available for inspection 22 as its sole meet and confer offer, Plaintiff sent an e-mail to Defendant confirming his intention to seek 23 the Court’s intervention with regards to this dispute and requesting defense counsel’s availability for 24 the Informal Discovery Conference. (Id. at ¶ 18.) Based on the parties’ availability, the Court set the 25 Informal Discovery Conference for September 17, 2020. (Id.) 26 Despite the parties’ meet and confer efforts, the parties were unable to reach agreement as to 27 the nature of Defendant’s obligations in responding to Plaintiff’s Special Interrogatories Nos. 1 and 2. 28 (Gordon Decl. ¶ 19.) On September 17, 2020, the parties participated in an informal discovery 1 conference with the Court. (Id.) The conference did not yield a resolution of the dispute. (Id.) The 2 Court issued an order after informal telephonic conference regarding discovery dispute, providing that 3 the plaintiff may file a motion to compel the telephone numbers and/or the defense may file a motion 4 for protective order. (Doc. 47.) On October 2, 2020, Plaintiff filed a motion to compel discovery 5 responses to Special Interrogatories Nos. 1 and 2. (Doc. 49.) At the hearing, however, plaintiff’s 6 counsel clarified that he was seeking only the last known telephone numbers—including both landline 7 and cell numbers—for the employees. 8 II. Legal Standards 9 A. Scope of Discovery 10 Under the Federal Rules, “[a] party seeking discovery may move for an order compelling an 11 answer, designation, production or inspection” when “a party fails to answer an interrogatory 12 submitted under Rule 33; or . . . a party fails to respond that inspection will be permitted – or fails to 13 permit inspection – as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). 14 The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure 15 and Evidence. Fed. R. Civ. P. 26(b) states: 16 Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged manner that is relevant to any party’s claim or defense – including the 17 existence, description, nature, custody, condition, and location of any documents or other tangible things…For good cause, the court may order discovery of any matter relevant to 18 the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of 19 admissible evidence.

20 Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that 21 is of consequence to the determination of the action more probable or less probable than it would be 22 without the evidence.” Fed. R. Evid. 401. Relevancy to a subject matter is interpreted “broadly to 23 encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, 24 any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). 25 B. Interrogatories 26 A party may propound interrogatories relating to any matter that may be inquired to under Rule 27 26(b). Fed. R. Civ. P. 33(a). A responding party must respond to the fullest extent possible, and any 28 objections must be stated with specificity. Fed. R. Civ. P. 33(b)(3)-(4). In general, a responding party 1 is not required “to conduct extensive research in order to answer an interrogatory, but a reasonable 2 effort to respond must be made.” Haney v. Saldana, 2010 U.S. Dist. LEXIS 93447, at *9 (E.D. Cal. 3 Aug. 24, 2010) (citing L.H. v. Schwarzenegger, 2007 U.S. Dist. LEXIS 73753 (E.D. Cal. Sep. 21, 4 2007)). Further, the responding party must supplement a response if the information sought is later 5 obtained or the previous response requires a correction. Fed. R. Civ. P. 26(e)(1)(A). 6 C. Class Actions 7 Precertification discovery lies entirely within the court's discretion. See Fed.R.Civ.P. 23; see, 8 e.g., Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011) (citing Vinole v. Countrywide Home 9 Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009)). The Ninth Circuit states that the "advisable practice" 10 for district courts on precertification discovery, "is to afford the litigants an opportunity to present 11 evidence as to whether a class action was maintainable. And, the necessary antecedent to the 12 presentation of evidence is, in most cases, enough discovery to obtain the material, especially when 13 the information is within the sole possession of the defendant." Doninger v. Pac. Northwest Bell, Inc., 14 564 F.2d 1304, 1313 (9th Cir. 1977); see also Artis, 276 F.R.D. at 351. 15 As such, discovery is likely warranted where it will resolve factual issues necessary for the 16 determination of whether the action may be maintained as a class action, such as whether a class or set 17 of subclasses exist. Kamm v. California City Development Co., 509 F.2d 205, 210 (9th Cir. 18 1975); Vinole, 571 F.3d at 942 ("Our cases stand for the unremarkable proposition that often the 19 pleadings alone will not resolve the question of class certification and that some discovery will be 20 warranted," citing Kamm, Doninger and Mantolete). It has long been the case in this circuit that: 21 [t]he propriety of a class action cannot be determined in some cases without discovery, as, for example, where discovery is necessary to determine the existence of a class or set 22 of subclasses. To deny discovery in a case of that nature would be an abuse of discretion. Where the necessary factual issues may be resolved without discovery, it is 23 not required.

24 Id.; see also Doninger, 564 F.2d at 1312 (finding that to deny discovery where it is necessary to 25 determine the existence of a class or set of subclasses would be an abuse of discretion). Doninger, 564 26 F.2d at 1313 (citing Kamm, 509 F.2d at 210). Whether to allow precertification discovery is based on 27 "need, the time required, and the probability of discovery resolving any factual issue necessary for the 28 determination" of whether a class action is maintainable. Kamm, 509 F.2d at 210. 1 In seeking such discovery, "the plaintiff bears the burden of advancing a prima facie showing 2 that the class action requirements [i.e., numerosity, commonality, typicality and adequacy of 3 representation] of Fed.R.Civ.P. 23 are satisfied or that discovery is likely to produce substantiation of 4 the class allegations. Absent such a showing, a trial court's refusal to allow class discovery is not an 5 abuse of discretion."). Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). Pursuant to Rule 23 6 of the Federal Rules of Civil Procedure, a member of a class of individuals may sue on behalf of all 7 class members only if: 8 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the 9 representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 10

11 Fed. R. Civ. P. 23(a). 12 The defense has submitted evidence that there are only 36 putative class members. Of these, 13 the defense reports that it has settled the case with 27 of the members. Though the plaintiff asserts that 14 these settlements may not be valid, even if they are not, in general, a putative class of 36 members will 15 not meet the numerosity element to form a class. Carlino v. CHG Med. Staffing, Inc., 2019 WL 16 1005070, at *3 (E.D. Cal. Feb. 28, 2019) [“A proposed class must be “so numerous that joinder of all 17 members is impracticable.” Fed. R. Civ. P. 23(a)(1). While there is no strict number requirement for 18 numerosity, courts have routinely held that classes comprised of more than forty members will satisfy 19 this prerequisite. See Ikonen v. Hartz Mt. Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988) (“As a general 20 rule, classes of 20 are too small, classes of 20–40 may or may not be big enough depending on the 21 circumstances of each case, and classes of 40 or more are numerous enough.”); see also Dunakin v. 22 Quigley, 99 F. Supp. 3d 1297, 1327 (W.D. Wash. 2015) (“Generally, 40 or more members will satisfy 23 the numerosity requirement.”) (quoting Garrison v. Asotin County, 251 F.R.D. 566, 569 (E.D. Wash. 24 2008)); McMillon v. Hawaii, 261 F.R.D. 536, 542 (D. Haw. 2009).”] 25 The plaintiff does not address the evidence submitted by the defense and, instead, points to its 26 complaint. On this topic, the complaint reads, “Defendant has employed potentially hundreds of non- 27 exempt, hourly security guards during the applicable statutory period. The number of putative Class 28 Members are therefore far too numerous to be individually joined in this lawsuit.” The insertion of the 1 word “potentially” makes the allegation as to numerosity, ambiguous. See Alberto v. GMRI, Inc., 252 2 F.R.D. 652, 660 (E.D. Cal. 2008) ("Although plaintiff has not provided the court with any form of 3 official documentation supporting this approximation, a court may rely on common sense assumptions 4 to support findings of numerosity.") (collecting cases). With this ambiguous allegation and the lack of 5 anything further addressing the evidence submitted by the defendant, it appears the prima facie case as 6 to numerosity is not met. See Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007) 7 ("[C]ourts generally find that the numerosity factor is satisfied if the class comprises 40 or more 8 members and will find that it has not been satisfied when the class comprises 21 or fewer."); see also 9 Rubenstein, Newberg on Class Actions § 3:13 (indicating that "a good-faith estimate of the class size 10 is sufficient" to establish numerosity where it is supported by "enough evidence of the class's size to 11 enable the court to make commonsense assumptions regarding the number of putative class 12 members"). Thus, the Court DENIES the motion to compel the telephone numbers of the putative 13 class members at this time. 14 D. FLSA Collective Action 15 The FLSA requires employees in interstate commerce to be paid overtime at the rate of one 16 and one-half times their regular hourly rate for hours worked over forty in a workweek. 29 U.S.C. § 17 207(a)(1). An aggrieved employee may bring a collective action on behalf of himself and others 18 "similarly situated" based on an employer's failure to adequately pay overtime wages. 29 U.S.C. § 19 216(b). To participate in the collective action, employees must opt-in to the litigation. Id. This means, 20 of course, employees must be given notice of the action to evaluate whether to do so. "Determining 21 whether a collective action is appropriate is within the discretion of the district court." Leuthold v. 22 Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). 23 It is settled that at the "notice" stage, district courts have the discretion under § 216(b) of the 24 FLSA to direct a defendant employer to disclose the names and addresses of potential class members. 25 Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170 (1989) (approving district court's order permitting 26 discovery of names and addresses of employees who had not yet opted in to the action in order to 27 facilitate notice). Discovery of contact information thus facilitates the issuance of a notice informing 28 potential "opt-in" plaintiffs of the collective action. 1 Courts in the Ninth Circuit often require the court to first determine whether it will 2 conditionally certify the class prior to giving notice and, therefore, routinely deny pre-certification 3 disclosure of contact information as premature. See, e.g., Prentice v. Fund for Pub. Interest Research, 4 Inc., No. C-06-7776 SC, 2007 WL 2729187, at *3 (N.D. Cal., Sept. 18, 2007) (holding that "the 5 FLSA, however, does not require Defendants to provide contact information for potential plaintiffs 6 until after the court certifies the collective action"); see also Adams v. Inter- Con Sec. Sys., Inc., 242 7 F.R.D. 530, 543 (N.D. Cal. 2007) (citing Hoffman-La Roche, 493 U.S. at 170) (recognizing that under 8 the FLSA "defendant is only required to provide potential plaintiffs' contact information after 9 conditional certification"). 10 Other courts in this and other circuits have ordered discovery of contact 11 information after determining notice to putative class members is appropriate. These courts tend to 12 view the discovery of contact information in actions under the FLSA as facilitating the issuance of a 13 notice informing potential "opt-in" plaintiffs of the collective action once conditional certification has 14 been granted. See, e.g., Carter v. Anderson Merch., LP, EDCV 08-25-VAP (OPx); 2008 WL 2783193, 15 at *7 (C.D. Cal. July 10, 2008); see also Patton v. Thomson Corp., 364 F. Supp. 2d 263, 266-67 (E.D. 16 N.Y. 2005) (after determining the threshold issue of whether putative FLSA class members are 17 "similarly situated," court may order notification and order employer to disclose names and addresses 18 of potential class members to facilitate notice); Stephens v. Erosion Containment Mgmt., Inc., No. 19 8:07-CV-1995-T-30MAP, 2008 WL 2157095, at *1 (M.D. Fla. May 21, 2008) (discovery of contact 20 information prior to conditional certification is premature); Barton v. Pantry, Inc., No. 1:04CV00748, 21 2006 WL 2568462, at *2 (M.D.N.C. Aug. 31, 2006) (contact information not due until court rules on 22 motion for conditional certification); Crawford v. Dothan City Bd. of Educ., 214 F.R.D. 694, 695 23 (M.D. Ala. 2003) (discovery of contact information should only be allowed after a collective action 24 has been conditionally certified). 25 In contrast, some courts, primarily in the Southern District of New York, have found that 26 conditional certification is not a prerequisite to the discovery of information concerning the identity of 27 potential class members. See, e.g., Fei v. WestLB AG, No. 07 Civ. 8785(HB)(FM), 2008 WL 7863592, 28 at *2 (S.D. N.Y. Apr. 23, 2008) (citations omitted) (although acknowledging that courts often grant 1 such motions to compel in tandem with the decision to grant conditional certification); see 2 also Whitehorn v. Wolfgang's Steakhouse, Inc., No. 09 Civ. 1148(LBS), 2010 WL 2362981 at *2 (S.D. 3 N.Y. June 14, 2010) (pre-certification discovery of employee contact information will enable a 4 plaintiff to make a fuller showing at the conditional certification stage or reveal that the collective 5 action is not suitable for certification; early access may allow a plaintiff to move for conditional 6 certification earlier and potentially permit putative class members to opt-in earlier). 7 In short, though there is no blanket prohibition against permitting disclosure of contact 8 information prior to certification in an opt-in collective action, the weight of authority in this Circuit 9 and others, finds such discovery premature unless conditional certification has been granted. Pending 10 before the Court is Plaintiff’s motion for conditional certification (see Doc. 57), and notably, the 11 Defendant previously provided Plaintiff the names and mailing addresses of putative class and 12 collective members, leaving only the issue of whether Plaintiff is also entitled to employee phone 13 numbers. (Doc. 64 at 21; Doc. 64-2 at 3.) Trial courts have broad discretion in granting or denying 14 discovery. Santos ex rel. Santos v. City of Culver City, 228 Fed. App'x 655, 657 (9th Cir. 2007) 15 ("broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny 16 discovery will not be disturbed except upon the clearest showing that denial of discovery results in 17 actual and substantial prejudice to the complaining litigant.") (citations omitted). Accordingly, the 18 Court finds that discovery of employee phone numbers for the FLSA action is premature. Thus, the 19 denial of Plaintiff’s motion to compel with respect to Interrogatory No. 2 is warranted. 20 IV. Conclusion and Order 21 Based upon the foregoing, the Court ORDERS that Plaintiff’s motion to compel discovery 22 (Doc. 49) is DENIED. 23 24 IT IS SO ORDERED.

25 Dated: January 5, 2021 /s/ Jennifer L. Thurston 26 UNITED STATES MAGISTRATE JUDGE

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