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Slack v. Parball Newco LLC

United States District Court, D. Nevada

March 26, 2018

WILLIAM SLACK, et al., Plaintiffs,
PARBALL NEWCO, LLC, et al., Defendants.



         This matter is before the court on defendants Parball Newco LLC dba Bally's, Parball Corp., Parball LLC, and PHWLV, LLC dba Planet Hollywood Las Vegas Resort and Casino's Motion to Compel Responses to Discovery Requests (ECF No. 53), filed on July 28, 2017. Plaintiffs filed a response (ECF No. 57) on August 15, 2017. Defendants filed a reply (ECF No. 59), supported by a request for judicial notice (ECF No. 60), on August 22, 2017.

         I. BACKGROUND

         This is a Fair Labor Standards Act (“FLSA”) action against defendants who own and operate Bally's Hotel and Casino, Paris Hotel and Casino, and Planet Hollywood Las Vegas Resort and Casino in Las Vegas, Nevada. (Am. Compl. (ECF No. 11) at 1-3.) The amended complaint alleges that defendants misclassified table games supervisors (also called casino floor supervisors) as exempt from overtime under federal and Nevada state law. (Id. at 5-10.) For instance, table games supervisors who supposedly were salaried employees were sometimes sent home early due to casino floor overstaffing, but received only partial day pay, unless those employees used accumulated paid time off. (Id. at 5.) As a result of the misclassification, plaintiffs allege they were denied overtime for hours they worked over 40 each workweek for pre-shift meetings, quarterly training, and online training and testing/certification. (Id. at 6-7.)

         In March 2017, the court approved the parties' stipulation to conditionally certify the federal claim. (Order (ECF No. 46).) The notice that potential opt-in plaintiffs received regarding their right to join the lawsuit stated “[y]ou may or may not be required to provide information about your work for the defendants or give evidence as part of this lawsuit if you want your claim for overtime wages to be decided as part of this lawsuit.” (Order (ECF No. 46) at 8.) The parties stipulated to conduct discovery in a single phase. (Scheduling Order (ECF No. 51).) The parties' discovery plan stated that they did not agree regarding the scope of opt-in discovery, but they would “confer and attempt to resolve the scope of opt-in plaintiff discovery following the conclusion of the opt-in period, once the number and identity of opt-in plaintiffs are determined.” (Id.) Three named plaintiffs and 80 opt-in plaintiffs submitted consent forms. (See ECF Nos. 7-10, 14-16, 20-21, 28-30, 39, 61.)

         Defendants served written interrogatories and requests for production on all plaintiffs, including the opt-in plaintiffs. (Papadopoulos Decl. (ECF No. 53-1).) Plaintiffs served written objections and no responses to the requests. (Id.) The parties participated in a meet-and-confer conference in which plaintiffs stated that opt-in plaintiffs were not required to respond to individual discovery as a matter of law. (Id.) Defendants state that as an attempt to compromise, they subsequently withdrew certain interrogatories and requests for production, leaving three interrogatories and eight document requests for each plaintiff who is still employed by defendants, and five interrogatories and eight document requests for each plaintiff who was terminated. (Id.) Defendants represent that plaintiffs have not responded to those requests. (Id.) Defendants now move to compel individualized discovery from the three named plaintiffs and all opt-in plaintiffs.

         II. ANALYSIS

         Defendants move to compel responses to their written discovery requests, arguing that the named plaintiffs have improperly refused to respond until a resolution is reached on the scope of discovery on the opt-in plaintiffs. Defendants further argue they are entitled to individualized discovery from all opt-in plaintiffs because they are ordinary party plaintiffs who are subject to the full range of discovery. Defendants contend that individualized discovery regarding how each opt-in plaintiff spent his or her time is required to analyze the overtime exemption and to assess whether plaintiffs are similarly situated and their defenses to individual plaintiffs. Defendants argue that the opt-in class is relatively small, that nearly all opt-in plaintiffs live and work in Las Vegas, that plaintiffs' counsel have been provided with all opt-in plaintiffs' contact information, and that the parties agreed to conditional certification and to conduct discovery in a single phase. In support of their motion, defendants cite various FLSA cases where individualized discovery of all of the opt-in plaintiffs was allowed.

         Plaintiffs respond that they will provide full discovery as to the three named plaintiffs, but that discovery on all opt-in plaintiffs is burdensome, unnecessary, and undermines the purpose of conditionally certifying a collective action. Plaintiffs contend that courts routinely deny individualized discovery of opt-in plaintiffs in FLSA classes and argue the class-wide discovery principles of Rule 23 (class actions) should apply to this collective action.

         According to plaintiffs, the two crucial factual issues in this case are the plaintiffs' job duties and their hours of work. Plaintiffs argue that individualized discovery on the opt-in plaintiffs is unnecessary unless defendants first provide limited discovery indicating the opt-in plaintiffs' job duties differ. Plaintiffs further argue that if they accept the defendants' assertions on these two issues, there would be no need for discovery on the opt-in plaintiffs. Plaintiffs urge the court to require the parties to formulate a protocol for determining whether individualized discovery on all opt-in plaintiffs is required.

         Plaintiffs' response primarily focuses on the threshold issue of whether defendants are permitted to take individualized opt-in discovery. Plaintiffs do not provide specific objections to the discovery that defendants move to compel. However, Plaintiffs argue the discovery requests do not relate to the actual tasks, responsibilities, and duties assigned to and performed by the opt-in plaintiffs. Plaintiffs also contend that the discovery requests do not relate to decertifying the conditionally-certified class. To the extent discovery on the opt-in plaintiffs is allowed, plaintiffs argue it should be limited to a 10 percent sample and that the scope of the requests should be limited to information supporting a motion to decertify the conditionally-certified class.

         Defendants reply that they are not required to make any showing or prove their affirmative defenses before plaintiffs are required to respond to discovery. Defendants further reply that their liability depends on each plaintiff's actual job duties, which requires individualized discovery.

         Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that parties may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). Rule 37(a) provides that a party may move for an order compelling the requested discovery. Fed.R.Civ.P. 37(a)(1), (a)(3)(B). The party resisting discovery has the burden to show discovery should not be allowed. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). It is within the court's broad discretion to control discovery, “and its rulings will not be overturned in the absence of a clear abuse of discretion.” Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D. Nev. 2011) (citing Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).

         Courts have taken different approaches regarding the extent of allowable discovery from opt-in plaintiffs in collective actions: (1) individual discovery is allowed for all opt-in plaintiffs, who are party plaintiffs subject to the full range of discovery; (2) no individualized discovery is allowed, on the grounds that it would undermine the purpose and usefulness of collective actions; and (3) individualized discovery is allowed, but only from a sample of opt-in plaintiffs. See, e.g., Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008) (recognizing in dicta that the law is unsettled regarding opt-in plaintiffs' duty to participate in individual discovery in FLSA cases); Smith v. Lowe's Home Centers, ...

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