United States District Court, W.D. Missouri, Southern Division
ROCKY L. HAWORTH, Plaintiff,
NEW PRIME, INC., Defendant.
ORDER DENYING PRE-CERTIFICATION DISCOVERY WITHOUT
ROSEANN A. KETCHMARK, JUDGE
the Court is Plaintiff's request to compel a response to
his Interrogatory No. 3. The interrogatory seeks contact
information for Defendant's “B-seat” truck
drivers, who were allegedly underpaid in violation of the
Fair Labor Standards Act (“FLSA”). During a
discovery dispute telephone conference held on July 29, 2019,
Plaintiff claimed to need this contact information so he can
obtain additional declarations to support his motion for
conditional class certification. Defendant argued that this
information is not relevant and proportional to the needs of
the case because (1) Plaintiff does not have a meritorious
claim; (2) there are privacy concerns with disclosing
employees' contact information; and (3) Plaintiff could
potentially solicit potential class members to join the case.
After the conference, Plaintiff filed his motion for
conditional class certification. (Docs. 45-55.) Briefing on
that motion is underway but not complete.
courts have allowed “limited” discovery of
proposed class members' contact information at the FLSA
pre-certification stage for the purpose of defining the
proposed class, e.g., Hammond v. Lowe's Home
Cntrs., Inc., 216 F.R.d 666, 671-73 & nn.18-25 (D.
Kan. 2003), but other courts have denied this type of
pre-certification discovery as premature, e.g.,
Crawford v. Dothan City Bd. of Educ., 214 F.R.D.
694, 695 (M.D. Ala. 2003). “Courts have ordinarily
refused to allow discovery of class members' identities
at the pre-certification stage out of concern that
plaintiffs' attorneys may be seeking such information to
identify potential new clients, rather than to establish the
appropriateness of certification.” Jin Yun Zheng v.
Good Fortune Supermarket Grp. (USA), Inc., No. 13-CV-60
ILG, 2013 WL 5132023, at *8 (E.D.N.Y. Sept. 12, 2013)
(quotation marks and citation omitted).
Plaintiff's counsel has assured the Court that he will
not solicit potential class members to join this case and has
even offered to draft a script of interview questions for the
Court's prior approval. This approach, however noble,
does not resolve the concern that Plaintiff's counsel may
still discover new clients for future cases even though
Plaintiff himself might not have a meritorious claim. For
this reason, the Court declines to compel the requested
discovery at this time.
also argues that he needs contact information at this
juncture because other courts have held that, in some cases,
there must be more than one declaration to satisfy the
“similarly situated” test of conditional
certification. See Kafka v. The Melting Pot Rests.,
Inc., No. 4:17-cv-00683-HFS, Doc. 102 at 10 (W.D. Mo.
Apr. 30, 2019) (requiring more than one declaration).
However, Plaintiff's motion for conditional certification
is already pending before this Court. In the event the Court
denies it because additional declarations are needed,
Plaintiff may seek reconsideration of this
issue. See Stanislaw v. Erie Indem. Co.,
No. C.A. 07-1078 Erie, 2009 WL 426641, at *3 (W.D. Pa. Feb.
20, 2009) (denying conditional certification without
prejudice to refiling after an opportunity for discovery).
not unusual for this Court to apply the two-step
conditional-certification procedure used by other courts,
which postpones the merits beyond the pre-certification
stage. See Astarita v. Menard, Inc., No.
5:17-06151-CV-RK, Doc. 118 at 2-3 (W.D. Mo. Dec. 7, 2018).
However, in this case, under these circumstances, the Court
would entertain a request from Defendant that the Court
address the merits of Plaintiff's claim by dispositive
motion prior to ruling on the motion for conditional
the Court's Scheduling Order (which contains the schedule
submitted jointly by the parties) does not include a schedule
for dispositive motions. (Doc. 28.) The Court retains
discretion, however, to assess the merits of the named
plaintiff's claims before ruling on conditional
certification. See Astarita v. Menard, Inc., No.
5:17-06151-CV-RK, 2018 WL 5928061, at *1 (W.D. Mo. Nov. 13,
2018) (compelling arbitration as to one plaintiff before
addressing conditional certification as to others);
Liebesman v. Competitor Grp., No. 4:14-CV-1653 RLW,
2016 WL 204461, at *4 (E.D. Mo. Jan. 15, 2016) (granting
summary judgment on statute-of-limitations grounds and
denying conditional certification as moot); Amendola v.
Bristol-Myers Squibb Co., 558 F.Supp.2d 459, 467
(S.D.N.Y. 2008) (stating that a court may “postpone
deciding the issue [of conditional certification] pending
further discovery and motion practice” where a
defendant shows that it is likely to succeed on the merits).
Plaintiff's request to compel a response to Interrogatory
No. 3 is DENIED without prejudice. Plaintiff
may move for reconsideration of this denial upon the
Court's ruling on the motion for conditional
IS SO ORDERED.
 In the event a reconsideration motion
is filed, the Court notes that Defendant's privacy
concerns, although legitimate, would be outweighed by the
needs of this case, given that the production may be treated
as confidential under the Stipulated Protective Order. (Doc.
 The Court would not look favorably on
such a request, however, unless Defendant agrees to toll the
statute of limitations for potential plaintiffs to opt in.
See Brekke v. City of Blackduck, 984 F.Supp. 1209,
1219 n.15 (D. Minn. 1997) (FLSA statute of limitations is
waivable). Unlike a run-of-the-mill class action under Rule
23 of the Federal Rules of Civil Procedure, class members in
an FLSA collective action must affirmatively opt in to toll
the statute of limitations. This is why courts typically
address whether to conditionally certify a class and send
notice prior to addressing the merits. See, e.g.,
Geer v. Challenge Fin. Inv'rs Corp., No.