United States District Court, W.D. New York
DECISION & ORDER
W. PAYSON United States Magistrate Judge.
commenced this action on August 28, 2013, asserting claims
under the Fair Labor Standards Act (“FLSA”) and
various state laws. (Docket # 1). On January 27, 2015, United
States District Judge Charles J. Siragusa conditionally
certified this case as a collective action under the FLSA.
(Docket # 80). Currently pending before this Court are
plaintiffs' motion to compel and for a sanctions hearing
(Docket # 326) and defendants' motion for reconsideration
of this Court's June 10, 2016 Order scheduling a
sanctions hearing (Docket ## 357, 363).
pending motions arise out of disputes concerning the accuracy
of the class list produced by defendants in this matter. The
litigated disputes have been protracted and have involved
extensive correspondence, filings, motions, conferences, and
proceedings before the Court. This opinion summarizes only
those proceedings relevant to resolve the pending
Plaintiffs' Motion to Compel
March 22, 2016, plaintiffs filed the pending motion to
compel. (Docket # 326). The motion arises from
defendants' repeated failures to comply with Judge
Siragusa's January 27, 2015 Order, requiring defendants
to produce a list of members of the class - namely, current
and former employees of Joe's Crab Shack who were paid
subminimum wage - in order to facilitate notice of the
litigation to those potential class members.
initial class list produced by defendants contained
approximately 124, 000 current and former Joe's Crab
Shack employees whom defendants had identified as class
members (the “original class list”). In late June
2015, defendants informed the Court that the original class
list was inaccurate and contained tens of thousands of
employees who should not have been included. (See
Docket # 232-2 at ¶¶ 8-21). This Court conducted
many conferences with counsel, and the parties filed several
motions, addressing issues concerning the inaccuracy of the
original class list and the notice that issued to individuals
on that list. (See Docket ## 149, 178, 207, 217,
220, 232, 250, 255, 256, 278, 291, 300). On May 17, 2016, by
Stipulation and Order, the parties resolved the majority of
the issues raised by those motions, including plaintiffs'
motion to amend the complaint or to sever (Docket # 207),
defendants' motion to compel and for a protective order
(Docket # 232), plaintiffs' motion to strike (Docket #
255), and plaintiffs' motion for corrective notice and
costs (Docket # 256). (Docket # 346).
17, 2015, defendants provided a corrected class list
containing approximately 33, 000 putative class members (the
“July 2015 class list”). (Docket ## 326-1 at 4;
326-3). Despite defendants' representations that the July
2015 class list was accurate, beginning in March 2016
plaintiffs raised concerns with defendants about the accuracy
of the class list. (Docket ## 326-1 at 4; 326-6). Plaintiffs
identified approximately fifteen potential class members whom
they maintained were improperly excluded from the July 2015
class list. (Docket ## 326-1 at 4-5; 326-9).
March 22, 2016, plaintiffs filed the pending motion to compel
compliance with Judge Siragusa's January 2015 Order
requiring defendants to produce a class list. (Docket # 326).
The motion sought the following relief:
(1) an order compelling defendants to provide the basis for
not including the fifteen identified potential class members
in the July 2015 list;
(2) an order compelling defendants to produce a corrected
class list; and,
(3) an order setting a date for a sanctions hearing.
opposed the motion, maintaining that plaintiffs had failed to
confer in good faith prior to filing the motion and that the
motion was unnecessary. (Docket # 340). Defendants'
opposition included a chart explaining why the employees
identified by plaintiffs had not been included in the July
2015 class list. (Docket ## 340 at 10; 340-1 at Exhibit
(“Ex.”) A). Of the fifteen employees in dispute,
defendants maintained that only two had been wrongly excluded
from the July 2015 class list and that their exclusion had
resulted from inadvertence. (Id.). Defendants also
represented that they were “undertaking an
investigation to determine whether any other putative class
members were excluded from the [July 2015 class list], and,
to the extent there were, [they] would provide a supplemental
class [list] identifying these individuals upon completion of
the investigation. (Docket # 340 at 10). Finally, defendants
argued that a sanctions hearing was not warranted because
they had already agreed to pay the costs associated with
their error and their conduct did not justify sanctions.
(Id. at 11-12).
reply, plaintiffs countered that their motion to compel was
not moot because defendants had not yet produced a corrected
class list; they also requested leave to depose a defense
witness in order to identify the source of the inaccuracies
in the July 2015 class list. (Docket # 342). Finally,
plaintiffs maintained that they had complied with any
applicable meet and confer obligations and were entitled to a
sanctions hearing. (Id.).
argument on the motion, in response to questioning from the
Court, counsel for defendants reported that the July 2015
class list may have excluded more than one hundred potential
class members. (Docket # 349 at 12-13). Counsel was unable to
provide any further information regarding the scope or cause
of the errors or an anticipated date by which defendants
would produce an accurate list. (Id.). The Court
expressed significant concern over defendants' inability
either to produce an accurate class list or to identify the
scope or source of the errors in the July 2015 list.
(Id. at 15-17). In an attempt to address those