United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on the motion (Doc. No. 328) of Defendants Papa John's International, Inc., and Papa John's USA, Inc., (jointly "Papa John's" or "Defendants") to compel and show cause. Defendants request the Court to enter an order compelling each opt-in plaintiff in this collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., to complete a discovery questionnaire, and ordering each opt-in plaintiff who fails to complete the questionnaire to show cause why their claims should not be dismissed. The Court held oral argument on September 16, 2014. For the reasons stated in oral argument and set forth below, the Court shall substantially DENY Defendants' motion.
Plaintiff William Timothy Perrin filed this action on August 19, 2009, on behalf of himself and other similarly situated delivery drivers employed by Papa John's. Perrin claims that Defendants violated the FLSA and the minimum wage laws of five states (Missouri, Arizona, Florida, Illinois, and Maryland) that mandate a higher minimum wage than that under federal law, by failing to reasonably approximate the delivery drivers' automotive expenses for reimbursement purposes, and consequently, effectively failing to pay the minimum wage.
On September 14, 2011, this Court granted Plaintiff's motion for conditional certification under the FLSA, thus providing Papa John's drivers the opportunity to "opt-in" to the FLSA collective action. (Doc. No. 148.) Of 29, 000 putative plaintiffs, 3, 840 have filed consents to join the collective action ("opt-in plaintiffs").
Papa John's distributed a questionnaire to every driver who opted in to the FLSA collective action, and on December 9, 2011, Papa John's moved to compel the opt-in plaintiffs to respond to the questionnaire. The Court held oral argument on this first motion to compel on February 17, 2012. (Doc. No. 261.) During oral argument, the Court noted that, given the nature and context of the case, a staged approach to discovery would be appropriate. ( Id. at 54.) The Court suggested it would permit the questionnaire to be sent to all class members, and the Court asked the parties to meet and confer regarding the structure of a survey sample group that would cover 10% of the class. ( Id. at 54-56.) The Court suggested that once a sample was obtained, the parties may be in a position to argue why further information from the remainder of the opt-in plaintiffs is necessary or unnecessary. ( Id. at 56.) The parties thereafter reached an agreement on the contents of the questionnaire as well as the process for its distribution and collection.
In a February 27, 2012 Joint Report Regarding Discovery Questionnaire, the parties agreed that the questionnaire would be "sent to all members of the conditionally certified class, with a minimum response rate of 10% for each Papa John's market." (Doc. No. 238.) The six-page questionnaire asked for information about the vehicles the opt-in plaintiffs used to deliver pizza for Papa John's, including the make and model of the vehicle, dates the vehicle was used, average miles driven, and service and repair expenses incurred. On May 8, 2012, Defendants filed a second motion to compel the opt-in plaintiffs to supplement their allegedly incomplete questionnaire responses. (Doc. No. 258.)
On December 31, 2013, before ruling on Defendants' second motion to compel, the Court granted Plaintiffs' motion to certify their state law claims as class actions under Federal Rule of Civil Procedure 23. (Doc. No. 299.) Plaintiffs argued and the Court agreed that the state law claims met the requirements of Rule 23(b)(3) because "common evidence predominates over individualized proof in establishing the central question with respect to liability." ( Id. at 13.) The Court found that "Defendants' assertion that individualized showings of each Plaintiff's vehicle expenses will be required to prove Plaintiffs' claims [was] without merit" because "Defendants' own reimbursement methodology does not depend upon the drivers' actual expenses and the regulatory framework does not require that reimbursement be based on actual expenses." ( Id. at 15.)
The Court then denied Defendants' second motion to compel without prejudice on March 31, 2014, due to the Court's concern that the motion was mooted by the Rule 23 certification. (Doc. No. 312.)
On April 4, 2014, the parties filed a joint motion to amend the case management order. While the parties agreed on many points, they disagreed as to whether a new questionnaire should be distributed to the opt-in plaintiffs. (Doc. No. 314.) On May 14, 2014, this Court issued an Amended Case Management Order ("Amended CMO"), and, as part of the amended schedule, ordered that "Defendant may obtain further discovery with respect to all opt-in plaintiffs by way of a mailed questionnaire, the content of which has been disclosed to Plaintiffs." (Doc. No. 320 at 2.)
On May 23, 2014, Plaintiffs' counsel mailed a new questionnaire to the opt-in plaintiffs. This second questionnaire is one page, and it again asks for vehicle make and model information, dates the vehicle was used, average miles driven, and service and repair expenses incurred. Some but not all of the opt-in plaintiffs have responded to the questionnaire. Although the parties dispute the exact number of responses obtained, they agree that, as of the date of oral argument, Defendants had received at least 803 responses, representing over 20% of the opt-in plaintiffs.
On August 1, 2014, the Defendants filed the instant motion to compel and show cause, requesting that "this Court enter an order compelling each and every opt-in Plaintiff to complete the discovery questionnaire" and to order each opt-in plaintiff who fails to complete the questionnaire "to show cause why their claims should not be dismissed." (Doc. No. 328.)
Defendants make two arguments in support of their current motion. First, Defendants contend that this Court's Amended CMO already compelled every opt-in plaintiff to respond to the questionnaire, and that the opt-in plaintiffs who fail to respond to the questionnaire must therefore show cause as to why they should not be dismissed, pursuant to Federal Rule of Civil Procedure 37(b)(2), for violating the Court's order. Second, Defendants contend that this Court should issue a new order compelling every optin plaintiff to complete the ...