United States District Court, N.D. Illinois, Eastern Division
MICHELLE GUNN, MARTINEZ HAYMER, and CARL THOMAS, individually and on behalf of others similarly situated, Plaintiffs,
STEVENS SECURITY & TRAINING SERVICES, INC. and AL STEVENS, Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
plaintiffs have moved for an order compelling the defendant
to produce documents responsive to plaintiffs' requests
for production 1-4. [Dkt. # 42]. Their complaint charges the
defendant with failing to pay proper overtime wages in
violation of the Fair Labor Standards Act, the Illinois
Minimum Wage Law, and the Chicago Minimum Wage Ordinance.
Early on, the plaintiff moved for conditional certification
of their FLSA claims as a collective action under 29 U.S.C.
§216(b), and Judge Coleman granted that motion on
January 8, 2018. [Dkt. #38]. The FLSA, of course, expressly
provides for collective actions, but unlike such actions
under Fed.R.Civ.P. 23, class members must opt in to be part
of the class and bound by judgment or settlement.
Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771
(7th Cir. 2013); Vanskike v. Peters, 974 F.2d 806,
812-13 (7th Cir. 1992). Since Judge Coleman's ruling,
only one additional plaintiff out of a possible 53 has chosen
to opt in. And so, the discovery at issue here - payroll
records for individuals who worked as security guards for the
defendant and were paid by the hour - has to do with
plaintiffs' state law and city ordinance claims.
Plaintiffs hope to make a class action out of these claims
under Fed.R.Civ.P. 23(b)(3). [Dkt. # 42, at 3].
objects to the production requests at issue on a couple of
grounds. First, and primarily, it submits that plaintiffs are
seeking to circumvent the FLSA's opt-in requirement by
way of their state and city claims and Fed.R.Civ.P. 23. In
other words, given that almost no one opted in for their FLSA
claim, plaintiff hopes to drive up the stakes with a state
and city law class claim where individuals have to opt out.
Citing a trio of case where the court has refused to certify
a Fed.R.Civ.P. 23 class in addition to a §216(b) class,
see McClain v. Leona's Pizzeria, Inc., 222
F.R.D. 574, 577-78 (N.D. Ill. 2004); Muecke v. A-Reliable
Auto Parts and Wreckers, Inc., No. 01 C 2361, 2002 WL
1359411, at *2, n.1 (N.D. Ill. June 21, 2002); Rodriguez
v. The Texan, Inc., No. 01 C 1478, 2001 WL 1829490, at
*2 (N.D. Ill. March 7, 2001), defendant demands that
plaintiffs not be permitted to pursue discovery under
Fed.R.Civ.P. 23. [Dkt. #51, at 4-5]. But, all these cases
predate, by a number of years, the Seventh Circuit's
controlling discussion of this issue in Ervin v. OS Rest.
Servs., Inc., 632 F.3d 971 (7th Cir. 2011). There, the
Court of Appeals looked at what the district court had seen
as incompatibility between §216(b) and Fed.R.Civ.P. 23
Section 16(b) of the FLSA allows employees to bring
collective actions to supplement the enforcement powers of
the Secretary of Labor under the statute. See 29 U.S.C.
§ 216(b) (providing that an employee's rights under
the subsection “terminate upon the filing of a
complaint by the Secretary of Labor”); see also
Kendall v. City of Chesapeake, 174 F.3d 437, 443
(4th Cir.1999). That provision providing that employees may
bring actions against their employers makes no mention of
state wage and labor laws. In addition, the FLSA includes an
express savings clause, which provides: “No provision
of this chapter ... shall excuse noncompliance with any
Federal or State law or municipal ordinance establishing [a
higher minimum wage or a shorter maximum work week.]”
29 U.S.C. § 218(a). We agree with the amici who
have filed briefs in this case that this language has the
effect of preserving state and local regulations. We expect
that it would normally be the case that a claim under any
such state regulations would be part of the same
constitutional “case” as the FLSA claim, and thus
that any such state claims would fall within the district
court's supplemental jurisdiction. See 28 U.S.C. §
1367(a). There is ample evidence that a combined action is
consistent with the regime Congress has established in the
FLSA. The Supreme Court's early decisions interpreting
the FLSA led to a great rush of litigation under the statute.
See generally Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
Congress responded in the Portal-to-Portal Act of 1947, 61
Stat. 84, as amended, 29 U.S.C. §§ 251-262, by both
eliminating “representative” actions (where
employees would designate another to sue on their behalf) and
by adding the opt-in provision to the statute for collective
*978 actions brought by employees. The effect was to
“limit[ ] private FLSA plaintiffs to employees who
asserted claims in their own right and free [ ] employers of
the burden of representative actions.” Hoffmann-La
Roche Inc., 493 U.S. at 173, 110 S.Ct. 482. This action
was designed to eliminate lawsuits initiated by third parties
(typically union leaders) on behalf of a disinterested
employee (in other words, someone who would not otherwise
have participated in the federal lawsuit).
Ervin, 632 F.3d at 977-78. So, the defendant's
objection, seven years out of date and ill-informed as it is,
is a non-starter.
even if that were not the case, I do not have authority under
a referral for discovery matters to decide substantive issues
like certification of a class under either §216(b) or
Fed.R.Civ.P. 23. For now, plaintiffs' state law claims
are a part of this litigation and, for now, they are
potential class claims. Plaintiffs are entitled to the
discovery they seek in order to try to establish the
prerequisites of proceeding as a class on those state law and
city ordinance claims.
next objection is that it is exempt from the city's
minimum wage ordinance. That is another substantive matter
beyond the purview of my authority. Even if defendant's
position is correct - it cites no cases to support it - and
Judge Coleman rules in its favor on a summary judgment motion
defendant says it will be filing, the same discovery would
remain relevant to the plaintiffs' state law claim.
final objection is, ostensibly, that the discovery sought is
overly burdensome. The defendant maintains its security
guards are independent contractors, not employees, and
therefore it does not, and is not required to, maintain
separate and individual personnel files containing payroll
records. Defendant claims there is only one person who
processes its payroll and, in order to comply with
plaintiffs' production request, that one person will have
conduct an extensive, exhaustive and burdensome
week-by-week-by-week search via text messages and/or email
for each individual independent contractor security guard to
locate the information Plaintiffs seek, then (and to the
extent such information even exists going back to August 31,
2014) subsequently and manually enter the requested
information for each and every day and week in which that
independent contractor security guard performed independent
contractor services into individual Microsoft Excel
spreadsheets. This is so because each week security guards,
as independent contractors, submit the equivalent of an
invoice to Defendants, with the dates and approximate hours
he/she worked that week.
#51, at 9]. Defendant offers nothing in the way of
proof that this is the case - no affidavit or anything like
that. Under Fed.R.Civ.P. 26(b)(2)(B), the party opposing
discovery must “show that the information is
not reasonably accessible because of undue burden or
cost.” Fed.R.Civ.P. 26(b)(2)(B)(emphasis supplied). A
lawyer's unsupported statement in a brief is not
evidence. United States v. Chapman, 694
F.3d 908, 914 (7th Cir. 2012); United States v.
Diaz, 533 F.3d 574, 578 (7th Cir. 2008). So, the
defendant hasn't “shown” anything. Moreover,
without amplification, defendant's complaint that the
discovery request is “overly burdensome” is no
more than an example of the garden-variety, boilerplate
objections attorneys slap on responses to discovery by rote,
and tantamount to no objection at all. See Duracell U.S.
Operations, Inc. v. JRS Ventures, Inc., No. 17 C 3166,
2018 WL 704686, at *6 (N.D. Ill. Feb. 5, 2018)(collecting
cases). And, finally, while plaintiff's request asks for
Excel or Access spreadsheets, it doesn't demand them. If
defendant truly doesn't keep records in that fashion,
there should be no reason why copies of the invoices from
security guards shouldn't be adequate for
pre-certification discovery. The plaintiffs pointed this out
in their reply brief. Why it is a part of the briefing on
this motion is mind-boggling - and leads to a discussion that
is unfortunately necessary in this case.
the plaintiffs filed their motion, in keeping with the
dictates of Local Rule 37.2, they stated that:
[o]n February 9, 2018, the parties engaged in a Local Rule
37.2 conference by telephone through their attorneys Scott
Cruz and Christopher Wilmes. During the phone call,
defendants reiterated their position that they were unwilling
to produce pay records for any individual who did not file an
FLSA opt-in form. After consultation in person or by
telephone and good faith attempts to resolve differences, the
parties [we]re unable to reach an accord.
42, at 5]. Based on what has transpired in the briefing this
matter, one cannot imagine what ...