Tucker v. Labor Leasing, Inc.

155 F.R.D. 687, 2 Wage & Hour Cas.2d (BNA) 570, 1994 U.S. Dist. LEXIS 12329, 1994 WL 289241

• Court: District Court, M.D. Florida
• Decided: April 15, 1994
• Docket: No. 93-1259-Civ-J-10
• Status: Published

Opinion

ORDER

SNYDER, United States Magistrate Judge.

This cause came to be heard on April 14, 1994, on Plaintiffs’ Motion to Compel Discovery (Doc. # 14), filed on January 10, 1994 (hereinafter Motion). Plaintiffs seek an order compelling each of the Defendants to answer six interrogatories to which the Defendants have objected. See Plaintiffs’ Response to Defendants’ Objections to Interrogatories (Doc. # 15), filed on January 10, 1994 (hereinafter Plaintiffs’ Response); Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Compel Discovery (Doe. #22), filed on February 7, 1994.

Background

Plaintiff David S. Tucker initiated this action on behalf of himself and, pursuant to 29 U.S.C. § 216(b), all other employees of the Defendants who were or are not exempt from the provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. His complaint alleges that each of the Defendants employed him and others similarly situated to him for periods longer than forty hours per week without paying them at a rate of at least one and one-half times their regular pay rate, contrary to the requirements of 29 U.S.C. § 207. Sometime after the complaint was filed, Plaintiff Tucker settled his individual claim with the Defendants. See Stipulation of Dismissal With Prejudice of Plaintiff Tucker’s Individual Claims (Doc. #26), filed on February 16, 1994. However, two former employees of the Defendants have consented to join the action in both an individual and representative capacity. Moreover, Defendants’ motion to dismiss the “class action” allegations of Plaintiffs’ complaint was denied by the District Court by Order (Doc. # 9) entered on November 1, 1993.

Discussion

Interrogatories 1, 2, and 3 seek information regarding prior civil, criminal or regulatory actions involving overtime compensation. This information is clearly discoverable to show whether the failure to pay overtime compensation alleged in this case was willful. See, e.g., Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 967 (6th Cir.1991) (finding proof of earlier violations conclusive of issue of •willfulness).

Interrogatories 4, 5, and 6, however, are more difficult. Interrogatory 4 seeks names of all employees of the Defendants who are “not exempt pursuant to the terms of the Fair Labor Standards Act.” Plaintiffs’ Response at 8. Interrogatories 5 and 6 seek names and addresses of employees of the Defendants who were due overtime compensation but did not receive it. Plaintiffs seek this information, among other things, for the purpose of facilitating Court-supervised notice to other employees of the Defendants who may wish to join this action. Id. at 12. Generally speaking, discovery for such a purpose is proper. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 486, 107 L.Ed.2d 480 (1989).

There are legitimate concerns, however, about the scope of the requests, and whether Plaintiffs or their counsel should be permitted to contact any of the employees so listed without Court permission. Initially, the Court notes interrogatory 4 contains no time limits; however, Plaintiff's represented at the hearing they were seeking only the names and addresses of current employees. Further, interrogatory 4 requests information regarding all employees not exempt from the terms of the Fair Labor Standards Act, and interrogatories 5 and 6 seek information regarding any employees not paid overtime pay when it was due. It appears only those employees who are “‘similarly situated’ with respect to their job requirements and with regard to their pay provisions” to the Plaintiffs may properly be notified of this action and their right to “opt-in.” Dybach v. State of Florida Dep’t of Corrections, 942 F.2d 1562, 1567-68 (11th Cir.1991).

Thus, although interrogatory 4, for example, asks Defendants to identify “all employees ... employed in the position of rater, biller, non-management office staff or other position not exempt pursuant to the terms of the Fair Labor Standards Act,” Plaintiffs’ Response at 8, it, along with interrogatories 5 and 6, will be limited to individuals employed as rater, biller, or non-management office staff. Whether “non-management office staff” are similarly situated to the current Plaintiffs in their job duties will be further addressed at the hearing on Plaintiffs’ Motion to Approve Notice to Potential Class Members (Doc. # 12), filed on January 10, 1994 (hereinafter Motion to Approve Notice).¹

Interrogatories 4, 5, and 6 are also unlimited as to the geographical area they are intended to cover. Defendants represent the current Plaintiffs each worked at the Defendants’ Jacksonville, Florida, terminal between the years 1990 and 1993. However, a Michigan corporation and an Ohio corporation, Defendants Regal Express, Inc., and R 6 L Transfer, Inc., respectively, are still parties to this ease. Moreover, according to the allegations of the complaint, the Defendants are effectively a single entity doing business in several states, and each of them failed to pay overtime compensation when it was due. Hence, while a showing will have to be made that employees of the Defendants located elsewhere are similarly situated to the current Plaintiffs before a notice can properly issue to employees outside of the Jacksonville, Florida, terminal, it appears Plaintiffs are at least entitled to discovery of these employees so that they might make such a showing.

Finally, regarding whether Plaintiffs should be able to contact any of the employees identified in Defendants’ answers who are not already parties to this case, Defendants correctly note that, in class actions governed by Rule 23, Federal Rules of Civil Procedure, the Local Rules provide:

In every ease sought to be maintained by any party as a class action, all parties thereto and their counsel are hereby forbidden, directly or indirectly, orally or in writing, to communicate concerning such action with any potential or actual class member, not a formal party to the case, without approval by order of the Court.

Rule 4.04(e), Local Rules, United States District Court, Middle District of Florida. Although this rule appears to govern class actions asserted under Rule 28, the concerns embodied in the rule about the possibility of improper solicitation and other dangers would appear to be equally applicable to collective actions, like this one, asserted under 29 U.S.C. § 216(b).

If applied in § 216(b) collective actions, however, Rule 4.04 would seemingly collide with the duty imposed on Plaintiffs, under Dybach, to show, to the satisfaction of the district court, that there are employees of the Defendants who are not only “similarly situated,” but who desire to “opt-in” to the pending action. 942 F.2d at 1567. In other words, Plaintiffs would be hard pressed to prove there are similarly situated employees who desire to join this lawsuit if they can have no contact with any of these employees to inquire about their desires one way or the other.

After careful evaluation of the competing concerns expressed in Dybach and Rule 4.04, the Court finds these concerns may be reconciled by adopting the approach taken in Gamer v. G.D. Searle Pharmaceuticals & Co., 802 F.Supp. 418 (M.D.AIa.1991). In that case, the court, in evaluating the plaintiffs’ showing in light of the standard outlined in Dybach, concluded it was sufficient for them to show “that there are other ‘similarly situated’ [employees] who may decide to opt-in if notified of this action.” Id. at 422 (emphasis added).² The Court reasoned “[t]o impose a strict standard of proof on the plaintiffs at this stage would unnecessarily hinder the development of collective actions and would undermine the ‘broad remedial goals’ ... of the FLSA.” Id. Following this approach harmonizes the standard outlined in Dybach with the salient policies behind Rule 4.04(e).

Accordingly, the Motion is GRANTED as to interrogatories 1, 2, and 3; further GRANTED as to interrogatory 4 with the understanding it is limited to current employees, and further limited to those individuals employed in the position of rater, biller, or other non-management office staff; and GRANTED as to interrogatories 5 and 6 limited to employees employed in the position of rater, biller, or other non-management office staff; otherwise DENIED. Each of the Defendants shall serve answers to their respective interrogatories, as limited herein, within thirty (30) days of the date of this Order.

Plaintiffs and their counsel shall have no contact with any of the employees, other than those already parties to this case, disclosed by Defendants’ answers to Plaintiffs’ interrogatories without prior leave of court. Finally, the parties are advised the hearing on the Motion to Approve Notice and Defendants’ Motion for Sanctions (Doc. # 19), filed on February 7, 1994, will be set by separate notice.

DONE AND ORDERED.

1 . To facilitate such an inquiry, Defendants should identify in their answers to Plaintiffs' interrogatories the type of position, in general terms, each employee held. The identification could be as simple as the title of the position each employee held and the dates he or she held the position.

2 . The plaintiffs in Gamer filed an action to enforce the provisions of the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and were attempting to bring a collective action for that purpose under § 216(b). The Court found sufficient for purposes of court-approved class notification the fact they had “identified 40 female sales representatives hired into Searle’s Southern Region since 1976 who could each point to at least one male hired for the same position and pay grade in the same year who received a higher salary.” 802 F.Supp. at 422.