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PATTON v. THOMSON CORPORATION

April 5, 2005.

LAURA PATTON, Plaintiff,
v.
THE THOMSON CORPORATION, doing business as THOMSON RIA, Defendant.



The opinion of the court was delivered by: JAMES ORENSTEIN, Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Laura Patton ("Patton") seeks an order directing defendant The Thomson Corporation ("Thomson") to provide the names, addresses, social security numbers, and employment dates of all putative class members and granting her leave to circulate a notice of pendency pursuant to 29 U.S.C. § 216(b). Docket Entry ("DE") 12; DE 13. Thomson opposes the motion on several grounds. It asserts that in the absence of a referral from a United States District Judge, I lack authority to grant such relief. As to the merits of the application, Thomson argues that Patton has failed to make a sufficient showing to warrant relief and that Patton's proposed notice of pendency is inappropriate. DE 11. I find that I have sufficient authority to determine the motion, which, for the reasons set forth in this memorandum, I now grant.

I. Background

  Patton filed this collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq., to recover unpaid overtime compensation from Thomson. She alleges that while she was employed as a Client Service Manager ("CSM") by Thomson, she routinely worked over forty hours a week without receiving overtime pay as required by the FLSA, because Thomson had improperly classified CSM employees as exempt from the FLSA's overtime provisions. Patton further alleges that Thomson similarly misclassified all of its CSM employees and deprived them of proper overtime compensation. Id. at ¶¶ 3-4. Thomson denies the allegations and asserts that it properly compensated its employees. DE 3. Thomson also challenges Patton's assertion that she is representative of other Thomson CSMs. DE 3.

  At the initial conference on January 3, 2005, Patton stated her intent to seek an order directing Thomson to provide information on other potential class members and for leave of court to circulate a Notice of Pendency. I instructed the parties to set a briefing schedule for this motion. DE 5. By letter dated January 19, 2005, Patton requested that I resolve a dispute between her and Thomson concerning the appropriate judge to submit the motion to. DE 7. Patton asserted that as the magistrate judge assigned to this case, I should determine her motion, which she described as a non-dispositive discovery application. Thomson characterized the motion as one seeking to maintain a class action, and thus one that I lack authority to decide pursuant to 28 U.S.C. § 636(b)(1)(A). DE 8. I endorsed the parties' letters with an order directing them to "submit their filings related to this pretrial non-dispositive motion for discovery to me pursuant to 28 U.S.C. § 636 (b)(1)(A)." Endorsed Order dated January 20, 2005. The parties thereafter submitted the fully briefed motion on February 28, 2005. DE 11-DE15.

  II. Discussion

  A. Authority to Decide Patton's Motion

  Notwithstanding my order of January 20, 2005, in which I explicitly stated my view that the instant motion seeks only non-dispositive discovery relief, and is therefore within the scope of my decisional authority, Thomson persists in a contrary view and urges me either to defer consideration of this motion to the Honorable Leonard D. Wexler, United States District Judge, or alternatively to confine myself to issuing a Report and Recommendation to Judge Wexler. DE 11 at 3-6. Accordingly, before addressing the merits of Patton's motion, I explain the basis of my authority to compel Thomson to produce certain information in discovery and to permit Patton to circulate a notice of pendency.

  Federal law permits "a magistrate judge to hear and determine any pretrial matter pending before the court," with certain specified exceptions, one of which is "a motion . . . to dismiss or to permit maintenance of a class action. . . ." 28 U.S.C. § 636(b)(1)(A). Thomson helpfully cites to my attention case law supporting the position that as a result of this statutory proscription, a magistrate judge cannot certify a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. See Nelson v. Nationwide Mortgage Corp., 659 F. Supp. 611, 619-20 (D.D.C. 1987). Should I be presented with a motion seeking such relief, I will certainly conform to that rule. No such motion is now before me.

  As discussed below in Part B, a plaintiff's request for leave to circulate a notice of pendency in a case brought under the FLSA is not the same as a motion to maintain a class action under Rule 23. Thomson cites no case law in support of its position that a magistrate judge lacks the authority to grant leave to circulate a notice of pendency in a case under the FLSA or that an order granting such relief is in any way equivalent to the certification of a class action, and I have found none. The only decision the motion presents is whether the members of a proposed class are similarly situated enough to permit the discovery of their names and addresses by Patton and the sending of a notice alerting them of their right to opt in to the class pursuant to 29 U.S.C. § 216(b). See Harrington v. Educ. Mgmt. Corp., 2002 WL 1009463, *2 (S.D.N.Y., May 17, 2002). After sufficient discovery, the district court will be in a position to determine whether those employees who have chosen to join the lawsuit are similarly enough situated for the purposes of maintaining a collective action at trial. See Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001).

  Magistrate Judges have previously ordered relief similar to that sought here in other cases under the FLSA. See, e.g., Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp.2d 91 (S.D.N.Y. 2003); Schwed v. Gen. Elec. Co., 159 F.R.D. 373 (N.D.N.Y. 1995). I have previously done so myself, although I, like the magistrate judges in Gjurovich and Schwed, was not previously called upon to examine the basis for exercising such authority. Having now done so, I find no reason to conclude that determining the type of motion now before me exceeds my authority under § 636. To the contrary, I conclude that the relief Patton seeks is a nondispositive matter of the sort typically referred to magistrate judges, and that an order granting the relief in no way prejudices Thomson's right to contest the maintenance of a class action.

  B. Leave to Circulate a Notice of Pendency

  In enacting the FLSA, Congress sought to improve "labor conditions detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency, and general well-being of workers." See 29 U.S.C. § 202(a). Consistent with that goal, the FLSA requires employers to compensate covered employees for all work performed. Reich v. N.Y. City Transit Auth., 45 F.3d 646, 648-9 (2d Cir. 1995) (citing Tennessee Coal, Iron & R. Co. v. Muscado Local No. 123, 321 U.S. 590, 602 (1944). In particular, it requires that employees be paid one and one-half time their normal wages for working in excess of forty hours per week. 29 U.S.C. § 207(a)(1). The FLSA exempts certain employees from its overtime requirements, including "any employee employed in a bona fide executive, administrative, or professional capacity . . ., or in the capacity of outside salesman. . . ." 29 U.S.C. § 213(a)(1). Because the FLSA is a remedial act, "its exemptions . . . are to be narrowly construed", and the employer bears the burden of establishing that the claimed exemption applies to its employees. Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991) (citation omitted).

  An employee claiming that the employer has violated the FLSA's overtime provisions may bring a lawsuit "for and in behalf of himself . . . and other employees similarly situated." 29 U.S.C. § 216(b). Such other employees can become plaintiffs, and thereby be bound by the action's determination, only by affirmatively acting to do so: "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id. The question can thus arise as to what steps if any, ...


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