United States District Court, D. Massachusetts
JORDAN ROY and JUSTIN TRUMBULL, on behalf of themselves and others similarly situated, Plaintiffs,
FEDEX GROUND PACKAGE SYSTEM, INC. Defendant.
DISCOVERY ORDER (DOCKET NO. 98)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.
Fair Labor Standards Act ("FLSA") collective action
is before the court to consider the number of opt-in
plaintiffs to whom written discovery should be directed. The
court has determined that the parties will utilize a
questionnaire as the first phase of discovery in lieu of
interrogatories and requests for production of documents and
admissions. The content of the questionnaire has not yet been
finalized. There are approximately 544 opt-in class
members. Defendant FedEx Ground Package System, Inc.
("FedEx Ground") requested leave to issue discovery
questionnaires to each individual opt-in plaintiff.
Plaintiffs Jordan Roy and Justin Trumbull
("Plaintiffs"), who represent the putative class,
propose that the questionnaires initially be issued to twenty
opt-in plaintiffs with the potential for issuing additional
questionnaires after the responses from the first twenty
opt-in plaintiffs are assessed. After hearing the
parties' arguments, the court directs FedEx to choose
fifty opt-in plaintiffs who will receive written
Ground employed Plaintiffs as full-time delivery drivers
through intermediary entities that FedEx Ground calls
"independent service providers," or
"ISPs." Plaintiffs assert a single claim against
FedEx Ground for unpaid overtime pursuant to the FLSA (Dkt.
No. 1). See 29 U.S.C. § 207.
court granted Plaintiffs' motion for conditional
certification on November 27, 2018, thereby allowing notice
to be sent to similarly situated drivers who could "opt
into" the collective action (Dkt. No. 64). See Roy
v. FedEx Ground Package Sys., Inc., 353 F.Supp.3d 43, 76
(D. Mass. 2018). Notices were issued to FedEx Ground drivers
who worked in Massachusetts after February 19, 2015, drove
trucks weighing less than 10, 001 pounds, and were not paid
overtime compensation for all hours worked over forty each
week (Dkt. Nos. 82, 83). Approximately 544 opt-in plaintiffs
submitted consent forms to Plaintiffs' counsel (Dkt. Nos.
85-91, 96, 97).
November 15, 2019, FedEx Ground requested a hearing to
discuss several issues, including the number of opt-in
plaintiffs who would receive its proposed discovery
questionnaire (Dkt. No. 98 at 2-5; Dkt. No. 98-1). In lieu of
formal interrogatories, requests for production of documents,
and requests for admissions, FedEx Ground asked to propound
an eleven question form, which it described as containing
"seven interrogatory-style questions, two requests for
production of documents, and two requests for
admission," to each individual opt-in plaintiff (Dkt.
No. 98 at 4). Plaintiffs opposed FedEx Ground's request
to issue written questionnaires to all of the opt-in
plaintiffs on the ground that it would defeat the purpose of
an FLSA collective action and would be unduly burdensome
(Dkt. No. 103 at 4-7). Instead, Plaintiffs proposed initially
issuing the questionnaires to a "representative
sample" of twenty opt-ins, which is about 4% of the
opt-in class (Dkt. No. 103 at 2-3, 5). Plaintiffs cited cases
in which written discovery was issued to approximately that
percentage of the opt-ins and noted that cases in which
individual discovery to all opt-ins was permitted involved
"significantly smaller numbers of opt-in plaintiffs than
the size of the class in this case" (Dkt. No. 103 at 3-7
matters are for the informed discretion of the district
court, and the breadth of that discretion in managing
pre-trial mechanics and discovery is very great."
Fennell v. First Step Designs, Ltd., 83 F.3d 526,
532 (1st Cir. 1996) (citing Fusco v. General Motors
Corp., 11 F.3d 259, 267 (1st Cir. 1993)).
court's view, the appropriate scope of discovery lies
between the positions of the parties. "FLSA
'[c]ollective actions were created to promote the
"efficient adjudication of similar claims, so similarly
situated employees, whose claims are often small and not
likely to be brought on an individual basis, may join
together and pool their resources to prosecute
claims."'" Cunha v. Avis Budget Car Rental,
LLC, 221 F.Supp.3d 178, 181 (D. Mass. 2016) (quoting
Iriarte v. Café 71, Inc., No. 15 Civ. 3217
(CM), 2015 WL 8900875, at *2 (S.D.N.Y. Dec. 11, 2015)).
Plaintiffs persuasively argue that permitting discovery of
approximately 544 opt-in plaintiffs would defeat the purpose
of the FLSA and would place an undue burden on the opt-in
plaintiffs and their counsel. Although FedEx Ground proposes
to use a questionnaire in lieu of interrogatories and
requests for production of documents and admissions, the
scope of the proposed questionnaire was exceedingly broad. In
other cases in which all opt-in plaintiffs participated in
discovery, there were fewer opt-ins. None of the cases upon
which FedEx Ground relies permitted written discovery of over
500 opt-in plaintiffs (Dkt. No. 112 at 3). See,
e.g., Scovil v. FedEx Ground Package Sys., Inc., No.
1:10-CV-00515-DBH, 2011 WL 5526033, at *3 (D. Me. Nov. 14,
2011) (anticipating forty opt-in plaintiffs). On the other
hand, Plaintiffs' suggestion that twenty opt-in
plaintiffs is a sufficient representative sample is not
adequately supported, particularly in view of FedEx
Ground's representation that there are 140 ISPs in
Massachusetts. In the court's view, a larger sample is
necessary to permit FedEx Ground to determine whether or not
all employees are "similarly situated" in terms of
employment practices. Roberts v. TJX Cos., Civil
Action No. 13-cv-13142-ADB, 2017 WL 1217114, at *3 (D. Mass.
Mar. 31, 2017). If they are not, the class is susceptible to
decertification and dismissal. See Id. It is the
court's position that fifty opt-in plaintiffs, or about
10% of the total number, is an adequate representative
sample. See Morangelli v. Chemed Corp., 922
F.Supp.2d 278, 283 (E.D.N.Y. 2013) (where there were 432
opt-in plaintiffs, 9% (39) were sufficient for
representational discovery); Scott v. Bimbo Bakeries USA,
Inc., Civil Action No. 10-3154, 2012 WL 6151734, at *1,
*6 (E.D. Pa. Dec. 11, 2012) (permitting written discovery
requests to be served on 10% of the class of 650 opt-in
plaintiffs); Davis v. Westgate Planet Hollywood Las
Vegas, LLC, No. 2:08-cv-00722-RCJ-PAL, 2010 WL 2872406,
at *3-4 (D. Nev. July 19, 2010) (defendants were limited to a
10% representative sample); Smith v. Lowe's Home
Centers, Inc., 236 F.R.D. 354, 357-58 (S.D. Ohio 2006)
("limiting discovery to a statistically significant
representative sampling . . . will both reasonably minimize
the otherwise extraordinary burden imposed on the plaintiffs
and their counsel and yet afford the defendant a reasonable
opportunity to explore, discover, and establish an
evidentiary basis for its defenses.").
the court orders that the written questionnaire be propounded
to fifty opt-in plaintiffs. The parties have agreed that
FedEx Ground will choose which opt-in plaintiffs will be
served with the written questionnaire.
response to FedEx Ground's request for individualized
discovery (Dkt. No. 98), the court orders that the finalized
written questionnaire be transmitted to fifty of the ...