United States District Court, S.D. Ohio, Eastern Division
Vascura Magistrate Judge.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Objection to
the Magistrate Judge's May 16, 2019 Order and Emergency
Motion to Stay Case Pending Resolution of Objections. (ECF
Nos. 70, 73). For the reasons set forth below,
Defendant's Motion to Stay is DENIED and
Defendant's Objections are OVERRULED.
Neil Rosenbohm sued Cellco Partnership, doing business as
Verizon Wireless, alleging violations of the Fair Labor
Standards Act (“FLSA”) and Ohio Minimum Fair Wage
Standards Act (“OMFWSA”). (ECF No. 8 at ¶
1). This Court granted conditional certification of the FLSA
collective action on September 17, 2018, and the parties have
sent notice to potential collective action members. (ECF No.
35). No. action has been taken on the Rule 23 class action
for violations of Ohio law.
April 17, 2019, Magistrate Judge Vascura entered a Scheduling
Order establishing the scope of discovery in the FLSA
collective action. (ECF No. 63). The Magistrate Judge limited
discovery to ninety-four randomly selected opt-in Plaintiffs
in addition to Rosenbohm. (ECF No. 63). In this April 17
order, the Magistrate Judge ordered that Defendant shall
serve a uniform questionnaire on the ninety-four
randomly-selected opt-in Plaintiffs no later than May 30,
2019 with responses due within 30 days. (ECF No. 63).
Additionally, the Magistrate Judge ordered that written
discovery of the ninety-four randomly selected opt-in
Plaintiffs be completed no later than September 13, 2019 and
that responses were due within 60 days. (ECF No. 63). The
Magistrate Judge also limited potential trial or other
testimony to these ninety-four randomly selected opt-in
Plaintiffs. (ECF No. 63).
1, 2019, Defendant timely objected to the Magistrate
Judge's order on the basis of the scheduling order's
trial-stage limitation on available trial witnesses and the
limitation of discovery to 94 randomly selected opt-in
Plaintiffs. (ECF No. 64). The Magistrate Judge then held a
telephonic conference with the parties on May 15, 2019. On
May 16, 2019 the Magistrate Judge issued a new scheduling
order vacating the April 17 scheduling order and eliminating
the trial-stage limitations found in the original order. (ECF
No. 69). Defendant timely objected to the new scheduling
order. This second objection was based on the court's
discovery restrictions and to the Magistrate Judge vacating
her own order before this Court had reviewed Defendant's
May 1, 2019 objections in accordance with Rule 72 of the
Federal Rules of Civil Procedure. (ECF No. 70). Defendant
then filed an Emergency Motion to Stay Case Pending
Resolution of Objections.
STANDARD OF REVIEW
district court reviews a magistrate judge's order on
nondispositive matters under the “clearly erroneous or
contrary to law” standard. 28 U.S.C. §631(b)(1)(A)
(2000). See also U.S. v. Raddatz, 447 U.S. 667, 673
(1980). In determining whether a factual finding is clearly
erroneous, this Court looks to “whether there is
evidence in the record to support the [magistrate
judge's] finding, and whether its construction of that
evidence is a reasonable one.” Geiger Bros.
Mechanical Contractors v. Lockheed Martin Utility Services,
Inc., No. C-2-98-109, 2000 WL 1456916, *1-2 (S.D.Ohio
2000) (quoting Heights Community Congress v. Hilltop
Realty Corp., 774 F.2d 135, 140 (6th Cir.1985)). The
“contrary to law” standard is “more
lenient, ” Gandee v. Glaser, 785 F.Supp. 684,
686 (S.D.Ohio 1992) (citing Fogel v. Chestnutt, 668
F.2d 100, 116 (2d Cir. 1981) and asks whether “any
conclusions of law contradict or ignore applicable precepts
of law, as found in the Constitution, statutes, or case
precedent.” Gandee, 785 F.Supp. 684 at 686
(quoting Adolph Coors Co. v. Wallace, 570 F.Supp.
202, 205 (N.D. Cal. 1983)).
have broad discretion to determine the scope and method of
discovery based upon the circumstances of each case.
Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402
(6th Cir.1998). Specifically, a court must limit discovery if
it determines that “the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive ... [or if] the burden or
expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in
controversy, the parties' resources, the importance of
the issues at stake in the action, and the importance of the
discovery in resolving the issues.” Fed.R.Civ.P.
LAW AND ANALYSIS
Fair Labor Standards Act (FLSA) authorizes collective actions
“by any one or more employees for and on behalf of
himself or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). To participate in
an FLSA collective action case, “all plaintiffs must
signal in writing their affirmative consent to participate in
the action.” Comer v. Wal-Mart Stores, Inc.,
454 F.3d 544, 546 (6th Cir. 2006). Generally, FLSA collective
action certification proceeds in two stages. Monroe v.
FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017) (citing
Comer, 454 F.3d at 546)). The first stage is
conditional certification, commonly referred to as the notice
stage. At the conditional certification stage, courts apply a
lenient standard that requires “a modest factual
showing” that the proposed co-plaintiffs are similarly
situated. Comer v. Wal-Mart Stores, Inc., 454 F.3d
544, 547 (6th Cir. 2006). At the second stage of
certification, which occurs after discovery has concluded,
courts rely on the additional information obtained during
discovery to look more closely at “whether particular
members of the class are, in fact, similarly situated.”
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547
(6th Cir. 2006).
determining whether plaintiffs are similarly situated, courts
look to three non-exhaustive factors: (1) the “factual
and employment settings of the individual[ ]
plaintiffs”; (2) “the different defenses to which
the plaintiffs may be subject on an individual basis”;
and (3) “the degree of fairness and procedural impact
of certifying the action as a collective action.”
Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir.
2017) (citing O'Brien v. Ed Donnelly Enterprises
Inc., 575 F.3d 567 (6th Cir. 2009). Plaintiffs are
similarly situated if they “suffer from a single,
FLSA-violating policy” or have “claims [that are]
unified by common theories of defendants' statutory
violations, even if the proofs of these theories are
inevitably individualized and distinct.”
Monroe, 860 F.3d at 398 (quoting O'Brien v.
Ed Donnelly Enterprises, Inc., 575 F.3d 567, 585 (6th
present case, Defendant objects to the Magistrate Judge's
Order on discovery matters and to the Magistrate Judge's
vacating the Order before this Court ruled on Defendant's
first objections. Defendant's discovery objections are
two-fold: (1) the sample size should be larger with a smaller
margin of error or (2) discovery should be based on a
stratified random sample rather than a simple random sample.
Defendant contends that these discovery decisions infringe
its due process rights by restricting their ability to
develop defenses and highlight differences in the conditional
class. (ECF No. 70 at 8). Defendant requests the use of a
five percent margin of error, which would require performing
discovery on 350 opt-in Plaintiffs as opposed to the
ninety-four opt-in Plaintiffs established in the Magistrate
Judge's scheduling order. Additionally, Defendant
requests that discovery be conducted using stratified random
sampling, as opposed to simple random sampling. Defendant
contends that this would allow for “opt-in
sub-groups” such as “those who claim they were
required to perform closing tasks off-the-clock; those who
claim they were required to wait for others to perform
closing tasks without compensation; ...