United States District Court, S.D. Ohio, Western Division
THOMAS BRANDENBURG, et al., On behalf of themselves and those similarly situated, Plaintiffs,
COUSIN VINNY'S PIZZA, LLC, et al., Defendants.
MICHAEL J. NEWMAN MAGISTRATE JUDGE
AND ENTRY OVERRULING DEFENDANTS' MOTION FOR PROTECTIVE
ORDER (DOC. #126); DEFENDANTS SHALL PROVIDE TO
PLAINTIFFS' COUNSEL NAMES AND CONTACT INFORMATION OF ALL
REMAINING PUTATIVE COLLECTIVE MEMBERS WITHIN FIFTEEN DAYS OF
THIS ENTRY; TELEPHONIC STATUS CONFERENCE TO BE HELD ON
JANUARY 8, 2018, AT 5:15 P.M.; NEW SCHEDULING ORDER TO ISSUE
SUBSEQUENT TO STATUS CONFERENCE
H. RICE UNITED STATES DISTRICT JUDGE
August 15, 2017, the Court sustained the Motion to
Conditionally Certify Collective Action under the Fair Labor
Standards Act of 1938 ("FLSA") and Authorize Notice
("Motion for Conditional Certification"), brought
by Plaintiffs, on behalf of themselves and others similarly
situated (collectively "Plaintiffs"). Doc. #55
(citing Doc. #5). The Court conditionally certified the
following collective: "ah of Defendants' current and
former delivery drivers who were employed in such a capacity
at some point during or after February 23, 2014[.]" Doc.
#55, PAGEID #758 (emphasis added). The Court ordered
Defendants Cousin Vinny's Pizza, LLC, Mo Rashad, and
numerous limited liability corporations that operated Cousin
Vinny's Pizza locations (collectively
"Defendants" or "Cousin Vinny's") to
"provide to Plaintiffs' counsel a computer-readable
list of the names and contact information of all putative
collective members within fifteen days of this Entry."
Id. (emphasis added). While Defendants provided the
requested information for drivers who work or worked at the
approximately fifteen Cousin Vinny's locations in Ohio,
they refused to do so for those drivers who work or worked at
Cousin Vinny's locations in Indiana or Virginia. On
November 27, 2017, Defendants filed a Motion for Protective
Order pursuant to Federal Rule of Civil Procedure 26(c)(1),
seeking to shield from discovery the contact information of
the drivers who are or were employed at its locations in
Indiana or Virginia. Doc. #126. For the reasons set forth
below, Defendants' Motion for Protective Order is
raise several arguments in their Motion for Protective Order,
including that: (1) Cousin Vinny's locations in Indiana
and Virginia are not part of a single integrated enterprise
with Cousin Vinny's Ohio locations; (2) the addition of
drivers from Indiana and Virginia could implicate claims
arising under their respective state laws, causing confusion
of issues, undue expense for the parties and inefficiency of
judicial resources; (3) for some of the years at issue,
revenues at the Virginia location are less than the amount
necessary to subject that location to FLSA's minimum wage
requirements; and (4) the Virginia drivers are not subject to
FLSA as individual employees. Doc. #126, PAGEID #1058-59;
Doc. #134, PAGEID #1099-1102. Defendants argue that, in light
of the above, Cousin Vinny's drivers in Indiana and
Virginia are not similarly situated to the Ohio drivers.
Consequently, Defendants claim, Indiana and Virginia drivers
should not be permitted to join the conditionally certified
collective, and Defendants need not disclose to Plaintiffs
the names and contact information of those drivers. Doc.
#134, PAGEID #1099-1102.
their memorandum in opposition, Plaintiffs argue that this
Court has already ruled on the suitability of including the
Indiana and Virginia drivers in the conditional collective,
and that the Motion for Protective Order is an impermissible
attempt to relitigate the matter. Doc. #129, PAGEID #1074-75
(citing Doc. #5, PAGEID #61, 63; Doc. #55; Castillo v.
Morales, Inc., 302 F.R.D. 480, 483 (S.D. Ohio 2014)
(Marbley, J.)). The Court agrees. Both the original Complaint
and Amended Complaint contained the following allegations:
"Defendants operate seventeen Cousin Vinny's Pizza
restaurants as a single integrated enterprise!, ]" Doc.
#1, ¶ 2, PAGEID #2; Doc. 28, ¶ 2, PAGEID #412; and
"Defendants' restaurants are primarily in the
Dayton, Ohio area, but they have also operated restaurants in
the Columbus area, the Cincinnati area, Indiana, and Virginia
during the relevant time period." Doc. #1, ¶ 3,
PAGEID #2; Doc. #28, ¶ 3, PAGEID #412. In Answers to
both the original and Amended Complaints, Defendants denied
the allegation that they operated all Cousin Vinny's
locations as an integrated enterprise, but admitted that
Cousin Vinny's locations existed in Indiana and Virginia
during the time period covered by the lawsuit. Doc. #11,
¶¶ 2-3, PAGEID #232; Doc. #33, ¶¶ 2-3,
PAGEID #466. Finally, in their Motion for Conditional
Certification, Plaintiffs stated that their proposed
collective "consists of all delivery drivers who worked
at any of the approximately seventeen Cousin Vinny's
Pizza restaurants nationwideM" Doc. #5, PAGEID
#63 (emphasis added).
Defendants, from the outset, knew or should have known that
Plaintiffs purported to bring FLSA claims on behalf of Cousin
Vinny's Indiana and Virginia drivers. Accordingly, all of
the arguments Defendants raise in their Motion for Protective
Order were available to them at the time Plaintiffs filed
their Motion for Conditional Certification. Yet, Defendants
raised none of those arguments in their memorandum in
opposition; indeed, they did not articulate any difference
between Ohio drivers and Indiana or Virginia drivers, such
that drivers from the latter two states would not be
similarly situated to Ohio drivers. Moreover, Defendants did
not seek reconsideration or otherwise object to the
Court's August 15, 2017, Entry, in which this Court
certified a conditional collective that unambiguously
includes Indiana and Virginia drivers. If Defendants wish to
exclude Indiana and Virginia drivers from the collective,
then they may do so at the close of discovery through a
motion to decertify. Swigart v. Fifth Third Bank,
276 F.R.D. 210, 213 (S.D. Ohio 2011) (Dlott, C.J.). However,
Plaintiffs would suffer immense prejudice if the Court, four
months after its Entry, were to narrow the conditional
collective, and Defendants have not shown good cause that
would justify such action.
in their Motion for Protective Order, Defendants argue that,
due to the differences in minimum wages, length of trips, and
other factors across the seventeen locations, "[t]here
is no common, quantifiable impact that applies to every
[collective] member." Doc. #126, PAGEID #1058. As
Plaintiffs correctly note, "quantifiable impact" is
a damages issue that is not relevant at this stage of
litigation. Rather, it is sufficient that Plaintiffs'
theories of statutory violation-not being reimbursed for job
related expenses incurred, and being paid at the tipped
minimum wage rate for time spent doing non-tipped work, Doc.
#28, ¶¶ 271-74, PAGEID #445-apply toall drivers at
aN Cousin Vinny's locations during the relevant time
period. Doc. #129, PAGEID #1078-79 (citing Swigart,
276 F.R.D. at 213). Only after notice and discovery are
complete may Defendants "file a motion to decertify the
[collective] if appropriate to do so based on the
individualized nature of the plaintiff[s1] claims."
Swigart, 276 F.R.D. at 213.
foregoing reasons, Defendants' Motion for Protective
Order, Doc. #126, is OVERRULED. Within fifteen days of this
Entry, Defendants must provide to Plaintiffs' counsel a
computer-readable list of the names and contact information
of all putative collective members who worked at Cousin
Vinny's Indiana or Virginia locations.
for Plaintiffs and Defendants shall participate in a
telephonic status conference with the Court on Monday,
January 8, 2018, at 5:15 p.m., to schedule discovery, class
certification and other dates. The Court will issue a new
scheduling order shortly thereafter.
Defendants devoted a substantial
portion of their Motion for Protective Order to arguing that
it was inappropriate to include Indiana and Virginia drivers
as part of Plaintiffs' proposed class action.
Doc. #126, PAGEID #1058, 1059-60 (citing Fed.R.Civ.P.
23(b)(3)). After Plaintiffs stated that they were only
seeking to include those drivers in their FLSA collective
action. Doc. #129, PAGEID #1073 (citing Doc. #28,
¶¶ 271, 282, PAGEID #445, 446), Defendants
abandoned that argument in their reply brief.
 If Defendants have not yet provided
the names and contact information of any putative collective
members who worked at Cousin Vinny's Ohio locations, then
they must also provide such information in a
computer-readable list to ...