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Blank v. Tomorrow PCS, LLC

United States District Court, E.D. Louisiana

June 19, 2018

LYNDSAY BLANK
v.
TOMORROW PCS, LLC AND JONG PARK

         SECTION: "S" (3)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE

         IT IS HEREBY ORDERED that Plaintiffs' Motion to Proceed as a Collective Action and for Judicial Notice to Potential Opt-In Plaintiffs (Doc. #119) is DENIED.

         IT 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.

         IT IS FURTHER ORDERED that Defendants' Motion to Strike Declarations (Doc. #135) is DENIED.

         IT IS FURTHER ORDERED that Plaintiffs' Motion to Continue Trial and Discovery Deadline (Doc. #120) is DENIED.

         BACKGROUND

         This 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.

         In 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.

         On June 21, 2016, plaintiffs filed this action alleging that TPCS[1] 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.

         In the 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.

         In the 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[2]; 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.

         On May 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 consisting of:

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.

         Plaintiffs 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.

         Plaintiffs 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.

         Several 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 Tomorrow Personnel.
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 ...

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