Ott v. Publix Super Markets, Inc.
Ott v. Publix Super Markets, Inc.
Opinion of the Court
ORDER
Pending before the Court is the plaintiffs motion to compel production of electronic mail (email) addresses and telephone numbers for potential class members in a collective action pursuant to 29 U.S.C. § 216(b) whose notices were returned as undeliverable (DE 194). The defendant has filed a response in opposition to the plaintiffs motion (DE 201) and a declaration of defendant’s counsel, also in opposition to the plaintiffs motion (DE 202). The plaintiff has filed a reply in support of their motion (DE 214). For the reasons explained herein, the plaintiffs motion will be GRANTED in part and DENIED in part. The use of telephone numbers will be limited.
I. Background
On May 15, 2012, the plaintiff filed her initial complaint on her behalf and on behalf of those similarly situated, against the defendant, “to recover overtime pay, liquidated damages, prejudgment interest, costs, and attorney’s fees,” pursuant to the Fair Labor Standards Act (FLSA) 29 U.S.C. § 201 et seq. (Docket Entry (DE) 1, p. 1). The plaintiff consented to joining the collective action as a representative plaintiff pursuant to 29 U.S.C. § 216(b) (DE 1-1).
On March 04, 2013, the plaintiff filed a motion requesting, inter-alia, that the Court order the defendant “to provide names and last known contact information” of potential class members (DE 50, pp. 2; 21). As “last known contact information,” the plaintiff requested the: (1) last known mailing address; (2) email address; and (3) telephone number for each potential class member (DE 50, pp. 2; 21).
On May 03, 2013, Judge Campbell ordered the defendant to “provide the names and last know[n] mailing address of the class described” and referred the case to me to “consider the [pjlaintiffs request for email address [es] and telephone numbers for class members.... ” (DE 112, pp. 1-2) (emphasis added).
On May 21, 2013, I ordered the defendant to provide email addresses for their employees if the plaintiff informed them that an employee’s mailing address was insufficient because a “Notice of Rights to Join Publix Overtime Lawsuit” (the Notice of Rights) was returned as undeliverable. (DE 123, p. 2; DE 194, p. 2). That order acknowledged that the defendant “estimated that they would have email addresses for less than one-third of their employees” and ordered the defendant to provide the email addresses that they did have (DE 123, p. 2). The order
On June 04, 2013, Judge Campbell referred the case to me “to set discovery deadlines and other deadlines specifically related to summary judgment, as well as for other customized ease management.” (DE 124, p. 1).
On June 06, 2013, Judge Campbell approved the Notice of Rights (DE 126, p. 1). On July 02, 2013, the plaintiffs mailed the Notice of Rights to potential class members at their U.S. postal addresses. The Notice of Rights informed the potential class members that the opt-in deadline was August 30, 2013 (DE 165, p. 2).
On January 22, 2014, during a case management telephone conference call with me, the plaintiff asserted that she anticipated filing a motion to request an order requiring that the defendant provide “telephone and email contact information, and an extended opt-in consent period, for all [Notices of Rights] returned as undeliverable by the U.S. Postal Service.” (DE 181, p. 4). The defendant asserted that they intended to oppose the motion (DE 181, p. 4). I ordered the plaintiff to file any such motion by February 10, 2014 (DE 181, p. 4).
On February 10, 2014, the plaintiff timely filed a motion to compel production of email addresses and telephone numbers for those potential class members whose Notices of Rights were returned as undeliverable (DE 194). The plaintiff asserts that on November 15, 2013, she provided the defendant with a spreadsheet of 747 potential class members “whose letters were returned ... by the U.S. Postal Service as undeliverable, and requesting [defendant's production of their last known telephone numbers and email addresses.” (DE 194-1). As of the date of filing the motion, the plaintiff asserts that the number of potential class members for whom the plaintiff requested contact information and an extended opt-in consent period was 754 (DE 194, p. 3). On February 19, 2014, the defendant filed an opposition to the plaintiffs motion (DE 194). Therein, the defendant asserted that: (1) the November 15, 2013 email from the plaintiff included 746 potential class members instead of 747 and that the plaintiff never provided the defendant with the names of the additional class members constituting the eight or nine additional members, (2) the plaintiffs motion to compel production of email addresses and telephone numbers for undeliverable Notices of Rights should be denied, and (3) the plaintiffs motion to extend the opt-in period should be denied.
II. Summary of the Issues
The plaintiff wants the Court to order that the defendant: (1) provide the plaintiff with the email addresses and telephone numbers of the 754 potential class members whose Notices of Rights were returned as undeliverable, and (2) extend the opt-in consent period 30 days for these individuals (DE 194, p. 3).
Under 29 U.S.C. § 216(b), there are two requirements for a collective action.
Individuals must know of a collective action in order to elect whether to “opt into” the action; a point which has raised the issue of whether “[District [C]ourts may play any role in prescribing the terms and conditions of communication from the named plaintiffs to the potential members of the class on whose behalf the collective action has been brought.”
On May 03, 2013, the Court granted the plaintiffs motion (DE 50) for conditional certification and issuance of the Notice of Rights (DE 112). As explained above,
III. Analysis
A. Email Addresses and Telephone Numbers
29 U.S.C. § 216(b) does not indicate the form of notice that the representative plain
The details of this Court’s discretion, therefore, turn on ease law and concerns addressed therein regarding: (1) whether the plaintiff argues that the U.S. mail is inadequate; (2) whether communication to potential class members will be controlled or could be distorted; (3) whether communication will be disruptive; and (4) whether communication will be intrusive upon privacy. Ultimately, in order for the Court to order a defendant to produce the email addresses or telephone numbers of their employees, these concerns must be considered.
Precedent on this issue is limited in the Middle District of Tennessee and, generally, in the Sixth Circuit. In Ware v. T-Mobile USA, the plaintiffs sought an order requiring that the defendant “provide the names, mailing addresses, and any known email addresses”
According to a culling of case law from this and other Courts, a plaintiff who files a motion to compel production of email addresses or telephone numbers must: (1) provide a rationale for the use of email or telephone numbers in addition to, not as a substitute for, U.S. mail and provide an explanation as to why use of the U.S. mail is inadequate; (2) distribute a pdf file version of the same Court approved Notice of Rights that was sent by U.S. mail; (3) avoid using defendant provided email addresses such as employment email addresses; and (4) avoid unnecessary intrusions into the privacy of potential class members.
In Fasanelli v. Heartland Brewery, Inc., the plaintiff requested the “names, last known mailing addresses, alternate addresses, telephone numbers, Social Security numbers, work locations and dates of employment” for all potential class members.
The Court in Hart also found, without elaborating, “that it would be disruptive to send notice to potential opt-in plaintiffs via their [defendant provided work email address and that utilizing personal email addresses would unduly invade the privacy of the potential plaintiffs.”
In Reab v. Elec. Arts, Inc. the Court declined to order the defendant to produce email addresses, explaining that “electronic communication inherently has the potential to be copied and forwarded to other people via the internet with commentary that could distort the notice approved by the Court.”
In Karvaly v. eBay, Inc. the Court noted, first, “that there are remarkably few cases addressing this issue,”
substantially reduced when first-class mail is used.”
However, the Court in the class action case of Krzesniak v. Cendant Corp. was critical of the concern in Reab, writing that “although the [C]ourt in Reab noted that messages in electronic format could ... easily be forwarded to nonclass members and posted to internet sites ..., the same can be said of messages sent by first class mail, which can easily be scanned and posted to websites.”
“Courts considering whether to compel the defendants in an FLSA collective action to allow plaintiffs’ counsel to provide notice by [telephone] have differed in their approaches. Many have ... [required] the defendants to provide telephone numbers along with the names and addresses of putative plaintiffs at the time of conditional certification.”
' In Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., the Court found that telephone numbers must be “provided for the sole purpose of running ‘reverse directory checks for putative members with outdated addresses and not to make calls to prospective class members.’ ”
Here, the plaintiff has provided that the U.S. mailing addresses were insufficient because 754 Notices of Rights were returned as undeliverable after not one, but two mailings through the U.S. mail (DE 165, n. 2; DE 194, p. 3; DE 214). The use of email addresses would be in addition to these mailings, not a substitute for these mailings. Therefore, the Magistrate Judge is persuaded that the plaintiff has provided the requisite rationale for receipt of email addresses.
The Magistrate Judge orders that the email communication consist of the same Court approved Notice of Rights, previously sent by U.S. mail, to be emailed in the form of a pdf, without wording in the body of the email beyond a direction to view the pdf file for information on the collective action, and with a conspicuous subject line to identify the nature of the email.
There is nothing in the record to indicate that the email addresses that the defendant shall provide are employment based email addresses, which carry the risk of causing disruption at the workplace if a Notice of Rights is sent to such email.
Finally, the Magistrate Judge is unconvinced that a discovery request for private telephone numbers “is routinely granted in collective actions.”
Of course nothing in this Order will preclude a potential class member who, for whatever reason, fails to receive notice, from proceeding with their own lawsuit.
B. Extended Opt-in Deadline
Under Fed.R.Civ.P. 16(b)(4), the Court’s “schedule may be modified only for good cause and with the judge’s consent.”
Here, the plaintiff is seeking the extension of 30 days to allow potential class members who receive a Notice of Rights to opt-into the collective action. The Magistrate Judge finds that the plaintiff was diligent in timely filing the instant motion (DE 194) and in filing the reply (DE 214) to the defendant’s response in opposition (DE 201). The Magistrate Judge recognizes that this extension could cause the defendant to suffer some prejudice because of timing constraints. However, the Magistrate Judge will amend the January 22, 2014 ease management order setting a post-notice discovery deadline of June 30, 2014 (DE 181, p. 6). The new deadline is July 30, 2014 which will coincide with the July 30, 2014 deadline for post-notice motions (DE 181, p. 6).
IV. Conclusion
For the reasons explained herein, the plaintiffs motion to compel the defendant to produce email addresses for the 754 identified individuals is GRANTED. The plaintiffs motion to compel the defendant to produce the telephone numbers for the 754 individuals is GRANTED IN PART. The plaintiffs use of the telephone numbers is limited to conducting telephone directory searches for better mailing or email addresses. The Plaintiff shall submit a copy of the proposed email notice to the defendants 5 days before sending it out. If the defendant has any objection to such notice the defendant will confer with plaintiffs counsel and if they are unable to work out the objections they will notify the court within 4 days of receipt of the proposed notice with their remaining specific objections.
The parties are cautioned that this is a 2012 case and at some point we have to go with what we have.
IT IS SO ORDERED.
. The Court takes notice of the defendant’s assertion that the Notice of Rights was mailed on July 01, 2013 instead of July 02, 2013 (DE 171, p. 2; DE 201, p. 3). There appears to be no contention about this mailing date, however, and no inconsistency regarding the opt-in deadline of August 30, 2013.
. Genesis Healthcare Corp. v. Symczyk, -U.S. -, 133 S.Ct. 1523, 1527, 185 L.Ed.2d 636 (2013) (citing Hoffmann-La Roche Inc. v. Sper-ling, 493 U.S. 165, 169-170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)) ("A suit brought on behalf of other employees is known as a ‘collective action.’ ”); See also Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (citing 29 U.S.C. § 216(b); Hoffmann-La Roche, Inc., 493 U.S. at 167-68, 110 S.Ct. 482).
. Comer, 454 F.3d at 546.
. Id.
. Genesis Healthcare Corp., 133 S.Ct. at 1530 (citing Hoffmann-La Roche, Inc., 493 U.S. at 171-72, 110 S.Ct. 482).
. Hoffmann-La Roche, Inc., 493 U.S. at 169, 110 S.Ct. 482 (An Age Discrimination in Employment (ADEA) case, in which the Court explained that 29 U.S.C. § 626(b), pertaining to the ADEA, incorporates 29 U.S.C. § 216(b), pertaining to, inter-alia, the right to bring an action or become a party to a collective action.).
. Hoffmann-La Roche, Inc., 493 U.S. at 169, 110 S.Ct. 482.
. See Supra Part. I.
. Hoffmann-La Roche, Inc., 493 U.S. at 170, 110 S.Ct. 482.
. Ware v. T-Mobile USA, 828 F.Supp.2d 948, 950 (M.D.Tenn. 2011).
. Id. at 956.
. Id.
. Miller v. Jackson, 3:10-1078, 2011 WL 1060737, at *8 (M.D.Tenn. Mar. 21, 2011).
. Id.
. Motley v. W.M. Barr & Co., Inc., 12-CV-2447 JDB/TMP, 2013 WL 1966444, at *9 (W.D.Tenn. Mar. 7, 2013) report and recommendation adopted in part, rejected in part, L12-CV-02447-JDB, 2013 WL 1966442 (W.D.Tenn. May 10, 2013).
. Dallas v. Alcatel-Lucent USA, Inc., 09-14596, 2012 WL 424878, at *8 (E.D.Mich. Feb. 9, 2012); See also Parr v. Hico Concrete, Inc., 3:10-1091, 2011 WL 5512239, at *2 (M.D.Tenn. Nov. 10, 2011).
. Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 324 (S.D.N.Y. 2007).
. Id.
. Id.
. Id.
. Hart v. U.S. Bank NA, CV 12-2471-PHX-JAT, 2013 WL 5965637, at *6 (D.Ariz. Nov. 8, 2013).
. Id.
. Vargas v. Gen. Nutrition Centers, Inc., 2:10-CV-867, 2012 WL 5336166, at *13 (W.D.Pa. Oct. 26, 2012).
. Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 630 (D.Colo. 2002).
. Karvaly v. eBay, Inc., 245 F.R.D. 71, 91 (E.D.N.Y. 2007).
. Id.
. Id.
. Krzesniak v. Cendant Corp., C 05-05156 MEJ, 2007 WL 4468678, at *2 (N.D.Cal. Dec. 17, 2007).
. Lewis v. Huntington Nat. Bank, C2-11-CV-0058, 2011 WL 8960489, at *2 (S.D.Ohio June 20, 2011) (citing Reab, 214 F.R.D. at 630).
. Arevalo v. D.J.'s Underground, Inc., CIV.A DKC-09-3199, 2010 WL 4026112, at *2 (D.Md. Oct. 13, 2010) (citing Thompson v. World Alliance Financial Corp., Civ. No. 08-4951, 2010 WL 3394188, at *8 (E.D.N.Y. Aug. 20, 2010); Sala v. St. Petersburg Kennel Club, Inc., No. 09-cv-1304-T-17-TBM, 2010 WL 746703, at *3 (M.D.Fla. Mar. 2, 2010)); See also Miller, 2011 WL 1060737, at *8.
. Arevalo, 2010 WL 4026112, at *2 (citing Parks v. Eastwood Ins. Services, Inc., No. SA CV 02-507 GLT (MLGx), 2002 WL 34370244, at *5 (C.D.Cal. July 29, 2002); Stickle v. SCI Western Market Support Center, L.P., No. 08-083-PHX-MHM, 2009 WL 3241790, at *7 (D.Ariz. Sept. 30, 2009)).
. Arevalo, 2010 WL 4026112, at *2 (citing Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 11 (D.D.C. 2010)).
. Arevalo, 2010 WL 4026112, at *2.
. Fengler v. Crouse Health Found., Inc., 595 F.Supp.2d 189, 198 (N.D.N.Y. 2009).
. Id.
. Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., CIV. A. 09-CV-379, 2009 WL 1515175, at *6 (W.D.Pa. June 1, 2009) (citing Bishop v. AT & T Corp., 256 F.R.D. 503, 509 (W.D.Pa. 2009)).
. Bishop, 256 F.R.D. at 509.
. Id.
. Dallas, 2012 WL 424878, at *8.
. 29 U.S.C. § 216(b); (DE 125-1).
. Fed.R.Civ.P. 16(b)(4).
. Thompson v. Bruister & Associates, Inc., 3:07-00412, 2013 WL 1092218, at *4 (M.D.Tenn. Mar. 15, 2013) (citing Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003)).
. Thompson, 2013 WL 1092218, at *4 (citing Bentkowski v. Scene Magazine, 637 F.3d 689, 696 (6th Cir. 2011); Commerce Benefits Group, Inc. v. McKesson Corp., 326 Fed.Appx. 369, 377 (6th Cir. 2009)).
Reference
- Full Case Name
- Amanda L. OTT, individually, and on behalf of all others similarly situated v. PUBLIX SUPER MARKETS, INC.
- Status
- Published