United States District Court, D. Nevada
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiffs' Motion for Attorney's Fees and Costs (Doc. # 39),  which Plaintiffs filed pursuant to this court's Order granting Plaintiffs' motion to compel (Doc # 37). Defendant opposed (Doc. # 41) and Plaintiffs replied (Doc. # 42).
The relevant history of the case is set forth in this court's Order of April 23, 2014 (Doc. # 37) and will not be repeated in full at this point. Generally speaking, however, this court granted Plaintiffs' motion to compel with respect to plaintiffs' one interrogatory which was in dispute. The court directed Defendant to provide information of job duties and classifications, but denied, without prejudice, Plaintiffs' request for rate of pay information for the potential opt-in plaintiffs. Second, Plaintiffs' motion to compel with regard to the parties' disputes over the requests for production was granted as more specifically discussed in the Order. (Doc. # 37.)
Fed. R. Civ. P. 37(a) allows the prevailing party on a motion to compel to recover its reasonable expenses, including attorney's fees, incurred in preparing the motion. Because the motion to compel was granted, the court therefore directed the parties to address the reimbursement of Plaintiffs' reasonable expenses incurred in bringing the motion. (Doc. # 37 at 11.)
Rule 37 explicitly states that if a motion to compel is granted, "the court must, after giving an opportunity to be heard, require the party... whose conduct necessitated the motion... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees" unless the opposing party can demonstrate that its "nondisclosure, response, or objection was substantially justified" or "other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(a)(5)(A); emphasis added. Pursuant to this court's Order granting, in substantive part, Plaintiffs' motion to compel, the Plaintiffs filed their motion for reimbursement seeking an award of costs and fees in the total amount of $18, 881.94. (Doc. # 39-1 at 5.)
Plaintiffs' counsel outline their expertise and qualifications at Doc. # 39-1 (Jones); Doc. # 39-2 (Thierman); and Doc. # 39-3 (Buck). Plaintiffs' counsel are well qualified in the area of Labor and Employment law. Unfortunately, as experienced as they are, the court was not provided much meaningful assistance by Plaintiffs' counsel in their motion to compel with respect to the law pertaining to pre-certification/notice discovery in a Fair Labor and Standards Act (FLSA) (29 U.S.C. § 201) lawsuit.
More specifically, Plaintiffs' initial motion as to the parameters of discovery of both the Plaintiffs' and putative "class members" was based on a representation that Plaintiffs had filed a "Motion for Class Certification on October 24, 2013. See Doc. 18." (Doc. # 26 at 8.) However, Doc. # 18 was not a motion for class certification but rather was a Motion for Circulation of Notice Pursuant to 29 U.S.C. § 216(b), (Doc. # 18.) Additionally, all of the cases cited by Plaintiffs in their motion to compel discussed permissible pre-certification discovery in the context of class actions, not an FLSA collective action. See, e.g., Doc. # 26 at 11 (citing Currie-White v. Blockbuster, Inc ., for the proposition of discovery "in the class action context"); id. at 16, citing Kress v. PriceWaterhouse Coopers, for the proposition of discovery "to determine the existence of a class or set of subclasses").
Plaintiffs characterize this litigation as both a "class and collective action." (Doc. # 31 at 4, n. 1.) However, at the time of Plaintiffs' discovery and motion to compel, no motion for class certification had been (and still has not) been filed. As noted above, pending at the time of Plaintiffs' discovery motion was Plaintiffs' motion for circulation of notice which pertains to this case's status as a collective action, not a class action. ( See, Doc. # 18, Plaintiffs' Motion for Circulation of Notice, seeking leave of court to provide notice to Defendant's past or present employees of the pendency of the legal action to decide if they want to opt in.)
The Plaintiffs' reply memorandum also did not discuss the parameters of pre-certification discovery which is permissible in a "collective action." Instead, Plaintiffs claimed an entitlement "to conduct meaningful inquiry into the class allegations" which Plaintiffs claimed was being hampered by Defendant's opposition to Plaintiffs' discovery. (Doc. # 31 at 2.) For example, Plaintiff relied upon another class action lawsuit seeking discovery of potential class members. Putnam v. Eli Lilly Co., 508 F.Supp.2d 812 (C.D. CA 2007). (Doc. # 31 at 4.)
Thus, the problem the court encountered with regard to Plaintiffs' characterization of the case as both a class and collective action (Doc. #31 at 4, n. 1) is that while the complaint was indeed filed as a collective and class action case (Doc. # 26 at 7), at the time of Plaintiffs' discovery, Plaintiffs had not filed any motion for class certification and had only sought leave to circulate notice of this matter as a collective action. (Doc. # 18.) The criteria for evaluating class certification differ from whether the court will authorize a matter to proceed as a collective action. Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); Small v University Medical Center of Southern Nevada, No. 2:13-cv-00298-APG-PAL, 2013 WL 3043454 at * 1 (D. Nev. 2013), citing McElmurry v. U.S. Bank Nat'l Ass'n, 495 F.3d 1136, 1139 (9th Cir. 2007).
With these distinctions in mind, this court's order regarding the discovery dispute stated as follows:
The line of authority relied on by Plaintiffs to support their argument that GSR should have to produce the information requested in the interrogatory involved a class action governed by Federal Rule of Civil Procedure 23. Neither Plaintiffs nor GSR addressed whether discovery of this information is permissible in a collective action brought under the FLSA. The parties also failed to address whether ...