United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE
IS HEREBY ORDERED that Plaintiffs' Motion to
Proceed as a Collective Action and for Judicial Notice to
Potential Opt-In Plaintiffs (Doc. #119) is
IS FURTHER ORDERED that Plaintiffs' Motion to
Modify the United States Magistrate Judge's April 20,
2018, Order Pursuant to Rule 72(a) of the Federal Rules of
Civil Procedure (Doc. #117) is DENIED.
IS FURTHER ORDERED that Defendants' Motion to
Strike Declarations (Doc. #135) is DENIED.
IS FURTHER ORDERED that Plaintiffs' Motion to
Continue Trial and Discovery Deadline (Doc. #120) is
matter is before the court on plaintiffs' motion to
proceed as a collective action and for judicial notice to
potential opt-in plaintiffs, in which plaintiffs seek to
expand the class that was conditionally certified. It is also
before the court on defendants' motion to strike
declarations that plaintiffs offered in support of their
motion to expand the class, and plaintiffs' motion to
continue the discovery deadlines and trial in this matter,
which plaintiffs argue is necessary if the class is expanded.
Further, it is before the court on plaintiffs' motion to
modify the United States Magistrate Judge's April 20,
2018, Order pursuant to Rule 72(a) of the Federal Rules of
Civil Procedure. Plaintiffs argue that the Magistrate Judge
erred in restricting discovery to defendants' locations
in Texas and Louisiana.
March 2015, defendant, Tomorrow PCS, LLC ("TPCS"),
hired plaintiff, Lyndsay Blank, to work as a customer service
representative selling cellular telephones and service plans
at various TPCS stores in Jefferson Parish, Louisiana. TPCS
was formed under Louisiana law, and has an Exclusive Master
Dealer Contract with MetroPCS Michigan, LLC to sell MetroPCS
products exclusively in Louisiana. Plaintiffs allege that
they were paid $8.50 per hour, even for overtime hours in
excess of 40 hours per week.
21, 2016, plaintiffs filed this action alleging that
violated the overtime provisions of the Fair Labor Standards
Act ("FLSA"), codified at 29 U.S.C. § 207(a),
by failing to pay her and other similarly situated employees
one-and-one-half times of their regular rate for hours worked
in excess of 40 hours per week. Plaintiffs' complaint
stated that she sought to proceed as a collective action
under section 216(b) the FLSA. On April 19, 2017, this court
granted plaintiffs' motion for conditional class
certification of an opt-in class consisting of:
All individuals who worked or are working for Tomorrow PCS,
LLC as Sales Associates during the previous three years and
who are eligible for overtime pay pursuant to the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 207, and
who did not receive full overtime compensation.
On May 9, 2017, plaintiffs filed an opposed motion for leave
to file an amended complaint seeking to add Tomorrow Telecom
Incorporated as a defendant, remove Park as a defendant, add
allegations of money being unlawfully deducted from the class
members' paychecks in violation of state law, and add
class allegations regarding the alleged state law violations
pursuant to Rule 23 of the Federal Rules of Civil Procedure.
The United States Magistrate Judge granted plaintiffs'
motion for leave in the interest of judicial economy based on
plaintiffs' representation that they would file a
separate suit against Tomorrow Telecom if the motion for
leave were denied.
amended complaint, plaintiffs allege that Tomorrow Telecom
has a master dealer contract with MetroPCS that permits
Tomorrow Telecom to use sub-dealers to sell MetroPCS products
in various states. Plaintiffs allege that Tomorrow Telecom
sells MetroPCS products in Texas and TPCS is a sub-dealer of
Tomorrow Telecom that sells MetroPCS products in Louisiana.
Plaintiffs allege that Tomorrow Telecom's other
sub-dealers include: "Tomorrow Mobile, " which
operates in Missouri and Kansas, and "Tomorrow Comm,
" which operates in Tennessee and Kentucky. Plaintiffs
allege that Tomorrow Telecom and its sub-dealers have common
ownership and use the same computer software, and that
Tomorrow Telecom exercises managerial control over, and
issues the pay for, the sub-dealers' service
representatives. Plaintiffs allege that as a result of
Tomorrow Telecom's control over its sub-dealers, all
service representatives at all of Tomorrow Telecom's
sub-dealers in various states were subject to the same
policies, which violated the FLSA, in that the service
representatives were not paid overtime wages due and at times
worked for less than the minimum wage.
amended complaint, plaintiffs also seek to represent two
classes pursuant to Rule 23 of the Federal Rules of Civil
Procedure: (1) "The Louisiana Chargeback Class, "
which consists of "[s]ince May 10, 2007[, ] and
continuing until the present, all current and former
Louisiana Service Reps who had any amount of their wages
deducted in the form of a chargeback[, ]" in violation
of Louisiana Revised Statutes § 23:635; and (2)
"The Chargeback Class, " which consists of
"[s]ince May 10, 2007[, ] and continuing until the
present, all current and former Service Reps who had any
amount of their wages deducted in the form of a chargeback[,
]" in violation of the unjust enrichment laws of Texas,
Missouri, Kansas, Kentucky, Tennessee and Louisiana.
15, 2018, plaintiffs filed the instant motion to proceed as a
collective action and for judicial notice to potential opt-in
plaintiffs, seeking to expand the FLSA class to one
All sales associates who worked or are working for Tomorrow
Telecom Incorporated, either directly or indirectly through
any Sub-Dealers, during the previous three years and who are
eligible for overtime pay pursuant to FLSA, 29 U.S.C. §
207 and who did not receive full overtime pay.
argue that certification is appropriate because Tomorrow
Telecom exercises managerial control over the sub-dealers and
sets the hours and wages for the sales associate employees.
Defendants argue that certification is not warranted as there
is no proof that the putative class members were victims of a
single decision, policy or plan because each of Tomorrow
Telecom's alleged sub-dealers is actually an independent
company that implements its own policies. Defendants contend
that plaintiffs' motion is supported by the self-serving
declarations of opt-in plaintiffs Nelly Garcia and Oliska
Gray, which defendants have moved to strike.
argue that a continuance of the pre-trial deadlines and the
trial date will be necessary if her motion to expand the
class is granted because counsel will need time to notify the
potential opt-in class members. Defendants argue that a
continuance is not necessary and is prejudicial because the
motion to certify the class should be denied and this case
has been pending for more than two years.
discovery disputes have arisen in this case. On February 27,
2018, in ruling on plaintiffs' motion to compel discovery
responses, the Magistrate Judge limited the search terms for
the search of defendants' employees' emails to
eliminate "all locational words other than those
associated with Louisiana and Texas." On April 20, 2018,
the Magistrate Judge ruled on the defendants' motions for
protective orders. Defendants sought protective orders
related to certain issues and topics designated by plaintiffs
in the Notice of Deposition propounded in accordance with
Rule 30(b)(6) of the Federal Rules of Civil Procedure (the
"Notice"). The Notice defined "Tomorrow
Personnel" as "all workers earning an hourly wage,
including but not limited to sales representatives, at the
Metro PCS locations listed in Attachment A." Attachment
A listed 154 locations in 8 states, namely, Louisiana, Texas,
Missouri, Kansas, North Carolina, New Mexico, Tennessee, and
Kentucky. Sixty-six of the locations are outside of Louisiana
and Texas. The Notice included the following areas of inquiry
that pertained to "Tomorrow Personnel" or stores
located outside of Louisiana and Texas:
1. The existence, location, maintenance, and generation of
all documents relative to chargebacks assessed against
2. The existence, location, maintenance, and generation of
all documents relative to the hours worked by Tomorrow
Personnel during the last three years.
3. The existence, location, maintenance, and generation of
all documents relative to Tomorrow Personnel payroll ...