Nance v. May Trucking Company et al, No. 3:2011cv00537 - Document 42 (S.D. Cal. 2012)
Court Description: ORDER granting plaintiffs' motion to lift stay and compel pre-certification discovery regarding putative California classes ( 39 , 40 ). Signed by Magistrate Judge David H. Bartick on 5/7/12. (kaj)
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Nance v. May Trucking Company et al Doc. 42 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SCOTT NANCE and FREDERICK FREEDMAN, on behalf of themselves, all others similarly situated, and the general public, ORDER GRANTING PLAINTIFFS’ MOTION TO LIFT STAY AND COMPEL PRE-CERTIFICATION DISCOVERY REGARDING PUTATIVE CALIFORNIA CLASSES v. 15 16 17 11-cv-0537-LAB (DHB) Plaintiffs, 13 14 Civil No. MAY TRUCKING COMPANY, an Idaho corporation; DOES 1 through 100, inclusive, [ECF Nos. 39 and 40] Defendants. 18 19 20 21 22 23 24 25 On April 10, 2012, the parties filed a Joint Discovery Conference Statement. (ECF No. 39.) Additionally, the parties filed separate memoranda concerning their respective positions regarding the instant discovery dispute. (ECF Nos. 39-1, 40.) On April 20, 2012, the Court held a Discovery Conference during which the parties’ discussed their dispute concerning the Court’s prior finding that Plaintiffs’ requested pre-certification discovery was premature in light of Defendant’s pending Motion to Dismiss and the Court’s stay of pre-certification discovery pending the District Judge’s ruling on the Motion to Dismiss. Plaintiffs now seek to have the January 24, 2012 stay on pre-certification discovery 26 27 28 -1- 11cv537-LAB (DHB) Dockets.Justia.com 1 lifted as to the proposed California classes.1 Plaintiffs also seek the production of information and 2 documents concerning the proposed California classes. 3 Based on a careful review of the parties’ papers and arguments made before the Court, and for 4 the reasons discussed below, Plaintiffs’ motion to lift the stay of discovery as to the proposed California 5 classes is GRANTED. Furthermore, Plaintiffs’ motion to compel pre-certification discovery relating 6 to the proposed California classes is hereby GRANTED consistent with this Order. 7 I. BACKGROUND 8 This is a putative class action in which Plaintiffs allege that Defendant violated federal, Oregon 9 and California wage and hour laws. On behalf of several classes of persons who work for Defendant 10 as truck drivers, Plaintiffs assert causes of action under the Fair Labor Standards Act (“FLSA”), 29 11 U.S.C. § 206; the Oregon Minimum Wage Law, Or. Rev. Stat. §§ 653.025, 653.055, 652.610 and 12 652.150; and Cal. Labor Code §§ 203, 226.7, 1182.12, 1194, 2699, et seq. and 2802. Plaintiffs also 13 assert a cause of action for unfair competition under Cal. Business & Professions Code § 17200, et seq. 14 Plaintiffs filed their First Amended Complaint (“FAC”) on October 10, 2011. (ECF No. 17.) 15 On October 27, 2011, Defendant filed a Rule 12(b)(6) Motion to Dismiss the causes of action brought 16 under the FLSA and two of four causes of action brought under Oregon law. (ECF No. 19.) On October 17 27, 2011, Defendants also filed a motion seeking to transfer this action to the District of Oregon 18 pursuant to 28 U.S.C. § 1404(a). (ECF No. 21.) Defendant’s motions are presently pending before the 19 Honorable Larry A. Burns. 20 On January 24, 2012, the Court denied Plaintiffs’ prior motion to compel pre-certification 21 discovery on grounds that such discovery was premature in light of the pending Motion to Dismiss. 22 (ECF No. 34.) The Court also stayed pre-certification discovery until Defendant’s Motion to Dismiss 23 is decided. (Id.) II. DISCOVERY DISPUTE 24 25 Presently before the Court is Plaintiffs’ request that the Court lift the stay on pre-certification 26 discovery only as to the proposed California classes. Should the Court grant this request, Plaintiffs also 27 1 28 Plaintiffs have agreed to limit their request to the proposed California classes until the District Judge issues a ruling on Defendant’s Motion to Dismiss regarding the proposed Oregon and FLSA classes. -2- 11cv537-LAB (DHB) 1 request that Defendant be ordered to produce the following information concerning the proposed 2 California classes: (1) the name, address, telephone number, hire date, and termination date (if 3 applicable) of a representative sample of putative class members; (b) any record of hours worked by a 4 representative sample of putative class members; and (c) payroll records and driving logs of a 5 representative sample of putative class members. 6 A. Plaintiffs’ Position 7 Plaintiffs contend the information requested is relevant to their motion for class certification and 8 the merits of their claims concerning the proposed California classes. Plaintiffs also contend that no 9 party requested that a discovery stay be imposed, that a discovery stay should not automatically occur 10 upon the filing of a motion to dismiss, and that Defendant has not met its burden under Rule 26 of the 11 Federal Rules of Civil Procedure for seeking a protective order to limit discovery pending resolution 12 of its Motion to Dismiss. Moreover, Plaintiffs contend that Defendant’s Motion to Dismiss only 13 challenges the claims Plaintiffs bring under the FLSA and Oregon wage and hour laws and that 14 Plaintiffs should not be precluded from seeking discovery regarding claims that are not at issue on 15 Defendant’s Motion to Dismiss, i.e., discovery regarding the proposed California classes. Lastly, 16 Plaintiffs contend that the stay is highly prejudicial to Plaintiffs. 17 Regarding appropriate sample size, Plaintiffs argue that Defendant should produce information 18 regarding all 153 drivers (100%) in the proposed California training subclass and 116 of 580 drivers 19 (20%) in the proposed California class. 20 “representative” and that the parties’ evidence in support of or in opposition to class certification should 21 be limited to those persons within the sample produced. Plaintiffs also maintain that the sampling should be 22 B. Defendant’s Position 23 Defendant seeks to have the stay on discovery remain in effect. Defendant contends that pre- 24 certification discovery should not occur until after the Court rules on Defendant’s Motion to Dismiss 25 because, if that motion is granted, a substantial number of putative class members will no longer be a 26 part of this action. Defendant also argues that the discovery at issue is irrelevant and not reasonably 27 calculated to lead to the discovery of admissible evidence because Plaintiffs’ requests relate to issues 28 not plead in the operative FAC. Specifically, Defendant states that Plaintiffs intend to take the -3- 11cv537-LAB (DHB) 1 deposition of three of Defendant’s employees but that these employees only have knowledge of claims 2 not plead in the FAC. Furthermore, Defendant contends that even if the discovery is limited to the 3 proposed California classes, there are additional pleading deficiencies in the FAC and Defendant will 4 seek dismissal of multiple claims regarding the proposed California classes after the pending Motion 5 to Dismiss is heard. 6 Regarding appropriate sample size, Defendant contends that Plaintiffs are improperly seeking 7 documents relating to every member of the proposed California classes and thus Plaintiffs’ request for 8 pre-certification discovery is not narrowly tailored. Defendant proposes that any production of 9 documents should be limited to a random sampling of 10% of the putative California class members. 10 Defendant maintains that it cannot stipulate that the sampled documents it produces is representative 11 of other putative class members. Rather, Defendant states that whether the sampling is representative 12 of the putative class is a legal determination that the Court must make at the class certification stage. 13 III. DISCUSSION 14 A. Lifting Stay on Pre-Certification Discovery Regarding Proposed California Classes 15 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 16 claim or defense.” Fed. R. Civ. P. 26(b)(1). In addition, “[f]or good cause, the court may order 17 discovery of any matter relevant to the subject matter involved in the action. Relevant information need 18 not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of 19 admissible evidence.” Id. 20 Here, Plaintiffs seek to have the Court’s stay on pre-certification discovery lifted so that they 21 may pursue information related only to the proposed California classes. Given that Defendant’s pending 22 Motion to Dismiss does not seek dismissal of the causes of action brought under California law, the 23 Court finds that discovery relating to these claims is relevant and appropriate under the circumstances 24 to allow Plaintiffs to prepare their class certification motion. See Twin City Fire Ins. Co. v. Emp’rs Ins. 25 of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989) (“[A] pending Motion to Dismiss is not ordinarily a 26 situation that in and of itself would warrant a stay of discovery.”). 27 Defendant contends that even if the requested documents are relevant, their production should 28 not be ordered because the California claims contained in the FAC (and a purported proposed Second -4- 11cv537-LAB (DHB) 1 Amended Complaint) contain various fatal pleading deficiencies. (ECF. No. 40 at 6:22-8:4.) Defendant 2 maintains that it intends to file a dispositive motion addressing these purported deficiencies after the 3 ruling on the pending Motion to Dismiss. However, Defendant did not raise these purported 4 deficiencies in its pending Motion to Dismiss. Moreover, the Court cannot stay discovery indefinitely 5 based on representations that a future dispositive motion will be filed. Whether the FAC’s claims 6 concerning the proposed California classes are deficient or not is not presently at issue. Those claims, 7 however, are the operative claims, and Plaintiffs are entitled to obtain discovery relevant to their 8 operative claims. 9 Accordingly, the Court finds that pre-certification discovery relative to the proposed California 10 classes is appropriate under the circumstances. The Court next turns to the scope of such discovery and 11 the appropriate sample size to be used. 12 B. Scope of Permitted Pre-Certification Discovery 13 As an initial matter, the Court notes that during the April 20, 2012 Discovery Conference, 14 counsel for Plaintiffs indicated that in lieu of seeking the contact information of the putative California 15 class members, Plaintiffs would be satisfied if Defendant provided the requested records using unique 16 identifiers with the personal information of Defendant’s employees redacted. The Court finds that this 17 approach is preferable to the “opt-out” notice procedure discussed in the parties’ papers. Although an 18 “opt-out” notice procedure is appropriate in many cases involving pre-certification discovery (see, e.g., 19 Murphy v. Target Corp., No. 09cv1436-AJB(WMC), 2011 U.S. Dist. LEXIS 62458, at *8-12 (S.D. Cal. 20 June 14, 2011)), under the facts and circumstances of this case, including the relatively small size of the 21 proposed California classes, the Court finds that it will be more efficient for Defendant to produce 22 records of hours worked, payroll records and driving logs using unique identifiers. Defendant shall 23 ensure that all names, contact information and other private personal information shall be redacted from 24 the production. As such, this Order does not address the parties’ arguments concerning the privacy 25 interests of putative class members or the “opt-out” notice procedure. 26 Next, Defendant contends that Plaintiffs seek to conduct discovery regarding claims not asserted 27 in the FAC. Specifically, Defendant contends that if the stay is lifted Plaintiffs will seek information 28 related to “orientation sessions” which are not encompassed in the operative claims. However, -5- 11cv537-LAB (DHB) 1 Plaintiffs’ instant request makes no mention of discovery related to “orientation sessions.” (See ECF 2 No. 39-1 at 1:22-2:2.) Rather, Plaintiffs have limited their request to documents regarding hours 3 worked, payroll records and driving logs. These documents are relevant to the operative claims and the 4 Court’s Order lifting the stay is limited to production of records relating to the proposed California 5 classes. 6 As noted above, the parties disagree on the appropriate sample size of the production. Plaintiffs 7 seek information regarding all 153 drivers (100%) in the proposed California training subclass and 116 8 of 580 drivers (20%) in the proposed California class. Defendant contends that any production of 9 documents should be limited to a random sampling of 10% of the putative California class members. 10 With respect to the proposed California training subclass, the Court finds that Plaintiffs’ proposal for 11 20% of the putative class is reasonable. Defendant has made no showing of any burden imposed by 12 such a sampling. With respect to the proposed California class, the Court finds that Plaintiffs’ proposal 13 for 100% of the putative class is unreasonable. Although the relatively small proposed class size (153 14 drivers) suggests a need for a larger sampling, the Court finds that a production of responsive documents 15 concerning one-third (51 drivers) of the proposed California class is appropriate. Defendant’s 16 production shall be comprised of a random sampling. 17 Finally, the Court declines to impose any limits on what evidence the parties may introduce in 18 support of or in opposition to class certification as the Court views this issue as premature. If Plaintiffs 19 desire that such a restriction be imposed they are not precluded from moving for such relief at the 20 appropriate time. 21 IV. CONCLUSION AND ORDER 22 Based on the foregoing, the Court orders as follows: 23 1. The Court’s January 24, 2012 stay on pre-certification relating to the proposed California 24 classes is hereby VACATED. Pre-certification discovery relating to the proposed FLSA 25 and Oregon classes shall remain stayed. 26 2. Plaintiffs’ motion to compel pre-certification discovery regarding the proposed 27 California classes is hereby GRANTED consistent with this Order. On or before June 28 11, 2012, Defendant shall produce to Plaintiffs the following: -6- 11cv537-LAB (DHB) 1 a. 2 putative California class; 3 b. 4 All payroll records of a random sample of 20% (116 drivers) of the putative California class; 5 c. 6 All driving logs of a random sample of 20% (116 drivers) of the putative California class; 7 d. 8 All records of hours worked of a random sample of 33% (51 drivers) of the putative California training subclass; 9 e. 10 All payroll records of a random sample of 33% (51 drivers) of the putative California training subclass; and 11 f. 12 13 All records of hours worked of a random sample of 20% (116 drivers) of the All driving logs of a random sample of 33% (51 drivers) of the putative California training subclass. 3. Defendant’s document production shall utilize unique identifiers in lieu of private 14 information. Defendant shall ensure that all names, contact information and other 15 private personal information shall be redacted from the production. 16 17 IT IS SO ORDERED. DATED: May 7, 2012 18 19 DAVID H. BARTICK United States Magistrate Judge 20 21 22 23 24 25 26 27 28 -7- 11cv537-LAB (DHB)
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