Peery v. Nixon Engineering,llc

Western District of Texas, txwd-6:2018-cv-00358

Rule 26(f) Discovery Report/Case Management Plan by Jayme Peery.

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, § Individually and on behalf of all others § similarly situated § Civil Action No. 6:2018-cv-00358 § Plaintiff, § JURY TRIAL DEMANDED § v. § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. §216(b) NIXON ENGINEERING, LLC, § § CLASS ACTION PURSUANT TO Defendant. § FED. R. CIV. P. 23(b) JOINT DISCOVERY/CASE MANAGEMENT PLAN PURSUANT TO RULE 26(F) FEDERAL RULES OF CIVIL PROCEDURE 1. State where and when the parties' meeting required by Rule 26(f) was held, and identify the counsel who attended for each party and any unrepresented parties who attended. The parties communicated by telephone on May 20, 2019. Lauren Braddy appeared on behalf of Plaintiff and Elizabeth Voss appeared on behalf of Defendant Nixon Engineering, LLC. 2. List the cases related to this one that are pending in any state or federal court with the case number and court, and state how they are related. None. 3. Briefly describe what this case is about. This is a putative collective action under 29 U.S.C. § 216(b) for Plaintiff's claims under the Fair Labor Standards Act ("FLSA"). Plaintiff seeks to represent a class of current and former employees who worked for Defendant and who allege they were not paid for all hours nor the correct amount of overtime compensation. Plaintiff has also filed a Texas state law claim as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) to recover the full extent of their unpaid wages for wages that have been categorized as "gap time claims." Defendant denies Plaintiff's allegations. Plaintiff alleges Defendant violated the FLSA and Texas common law by failing to pay Plaintiff and the Putative Class Members for all hours worked, thereby miscalculating (and underpaying) their overtime compensation for all hours worked over forty (40) in a workweek. 4812-2676-1623.2 4. Specify the allegation of federal jurisdiction, identifying any parties who disagree and the reasons. The parties agree that federal jurisdiction exists pursuant to 28 U.S.C. § 1331, because this action involves a claim under the FLSA. The parties also agree that this Court has supplemental jurisdiction over the additional state law claims pursuant to 28 U.S.C. § 1367. 5. List anticipated additional parties that should be included, when they can be added, and which party wants to add them. Plaintiff has filed this case as a hybrid collective/class action and intends to pursue conditional certification and notice. Plaintiff anticipates adding current and former employees who worked for Defendant and who timely file a consent form to become a party plaintiff in the lawsuit. 6. List anticipated interventions. None at this time. 7. Describe any class-action or collective-action issues. Plaintiff has filed this case as a collective action and as a class action. Plaintiff intends to promptly pursue conditional certification and notice for the collective action and to pursue certification of the class action. As such, the following issues must be addressed, such as—the appropriate designation of the potential collective members, the structure of the notice to the potential members, the process by which notice can be delivered to the potential members, the deadline in which to respond, deadlines running from the close of the opt-in period and a possible discovery extension based on the number of individuals who opt-in to the lawsuit. Plaintiff has also filed this case as a class action and intends to pursue class certification. Plaintiffs anticipate representing current and former employees who worked for Defendant at Defendant's various locations. Defendant asserts that neither collective action nor class action treatment is appropriate in this matter. Defendant further asserts that collective action and class action are incompatible and should not be exercised at the same time and that the Court should therefore decline to exercise supplemental jurisdiction over Plaintiff's state-law claims. 8. State when the parties will make the initial disclosures required by Rule 26(a) and describe any issues or disputes relating to those disclosures. The parties will exchange initial disclosures on or before June 28, 2019. 9. Describe the proposed discovery, including identifying any disputes that have arisen. The matters that must be addressed in this Plan are listed below. The parties should include others that merit the court's early attention as well. A. Responses to the matters covered in Rule 26(f), including any agreements 4812-2676-1623.2 -2- reached about discovery and any issues or disputes relating to discovery. (1) Any changes that should be made in the timing, form, or requirement for disclosures under Rule 26(a). The parties do not request any changes to the disclosure requirements under Rule 26(a). (2) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or limited to or focused on limited issues. Discovery will be needed on Plaintiff's allegations, Plaintiff's alleged damages, and Defendant's defenses currently asserted in this lawsuit. Plaintiff proposes bifurcated discovery wherein the first phase of discovery is limited to the issue of conditional certification and the second phase of discovery address the merits of the Parties' claims and defenses. Defendant proposes that discovery commence for all purposes on May 22, 2019. (3) Any issues relating to disclosure and discovery of electronically stored information, including the form(s) in which it should be produced. None at this time. (4) Any issues relating to claims of privilege or protection as trial preparation materials, including – if the parties agree on a procedure to assert these claims after production – whether to ask the Court to include their agreement in an order. None at this time. (5) Any changes that should be made in the limitations on discovery imposed by the Rules or by local rule, and any other limitations that should be imposed. Defendant believes that the discovery limitations on the number of depositions will need to be increased to permit discovery of collective action and/or class members. (6) Other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). None at this time. B. When and to whom the plaintiff anticipates it may send interrogatories. Plaintiff anticipates serving interrogatories to Defendant following the parties' Rule 26(f) conference, and will serve additional interrogatories, as needed, up to 30 days 4812-2676-1623.2 -3- prior to the discovery deadline entered by the Court. C. When and to whom the defendant anticipates it may send interrogatories. Defendant anticipates serving interrogatories to Plaintiff and the opt-in Plaintiffs following the parties' Rule 26(f) conference, and will serve additional interrogatories, as needed, up to 30 days prior to the discovery deadline entered by the Court D. Of whom and by when the plaintiff anticipates taking oral depositions. Plaintiff anticipates deposing Defendant, through corporate representatives, and other persons with knowledge of relevant facts prior to the scheduled discovery deadline. Prior to the end of the discovery deadline, Plaintiff may also depose other individuals identified in Defendant's initial disclosures, including Plaintiff's co-workers, supervisors, and any other witness(es). E. Of whom and by when the defendant anticipates taking oral depositions. Defendant anticipates deposing the Plaintiff, opt-in Plaintiffs and any additional class parties, as needed, prior to the discovery deadline entered by the Court. F. Whether the plaintiff (or the party with the burden of proof on an issue) needs to designate expert witnesses under Rule 702, 703, or 705 of the Federal Rules of Evidence. If so, state when the party will be able to designate the experts and provide the reports required by Rule 26(a)(2)(B), and when the opposing party will be able to designate responsive experts and provide their reports. If the only experts are on attorney's fees, state whether the parties agree to submit any fee issues to the court to decide after liability and damages are resolved. Plaintiff will designate experts, if any, and provide Rule 26(a)(2)(B) reports by January 28, 2020. Defendant will designate experts, if any, and provide Rule 26(a)(2)(B) reports by February 27, 2020. 10. If the parties are not agreed on all or part of the discovery plan, describe the separate view and proposals of each party. The parties agree on all of the discovery plan. 11. Specify the discovery beyond initial disclosures that has been done to date. None. 12. State the date the planned discovery can reasonably be completed. The parties anticipate that discovery in this lawsuit can be reasonably completed by March 31, 4812-2676-1623.2 -4- 2020. 13. Describe the possibilities for a prompt settlement or resolution of the case that were discussed in your Rule 26(f) meeting. The parties have discussed the possibility informal case resolution and will continue to explore all settlement opportunities. 14. From the attorneys' discussion with the client, state the alternative dispute resolution techniques that are reasonably suitable, and state when such a technique may be effectively used in this case. The parties agree that mediation with a mediator who has substantial experience and expertise in the FLSA is suitable. The parties further agree that meditation will be more effective after the parties have had an opportunity to engage in preliminary discovery. 15. Magistrate judges may now hear jury and non-jury trials. State the parties' joint position on a trial before a magistrate judge. The parties do not consent to a trial before a magistrate judge. 16. State whether a jury demand has been made and if it was made on time. Plaintiff has made a timely jury demand. 17. Specify the number of hours it will likely take to present the evidence in this case. The parties estimate that at least 30 to 40 hours will be required to present evidence in this case, should it proceed collectively. The parties reserve the right to amend this estimate based on discovery, and particularly in the event that a collective and/or class action is certified and the number of opt-in plaintiffs, if any. 18. List pending motions that could be ruled on at the initial pretrial and scheduling conference. None. 19. List other pending motions. None. 20. List issues or matters, including discovery, that should be addressed at the conference. None. 21. Certify that all parties have filed the Disclosure of Interested Parties as directed in the Order for Conference and Disclosure of Interested Parties, listing the date of filing for original and any amendments. 4812-2676-1623.2 -5- Plaintiff filed his Certificate of Interested Parties on December 21, 2018 (ECF No. 5). Defendant will file its Certificate of Interested Parties on May 21, 2019. 22. List the names, bar numbers, addresses, and telephone numbers of all counsel. COUNSEL FOR PLAINTIFFS: COUNSEL FOR DEFENDANT: Clif Alexander Ramon D. Bissmeyer Federal I.D. No. 1138436 State Bar No. 00787088 Texas Bar No. 24064805 rbissmeyer@dykema.com clif@a2xlaw.com DYKEMA GOSSETT PLLC Lauren E. Braddy 112 East Pecan Street, Suite 1800 Federal I.D. No. 1122168 San Antonio, Texas 78205 Texas Bar No. 24071993 Telephone: (210) 554-5500 Facsimile: (210) 226-8395 lauren@a2xlaw.com Elizabeth A. Voss Alan Clifton Gordon State Bar No. 24075160 Federal I.D. No. 19259 evoss@dykema.com Texas Bar No. 00793838 DYKEMA GOSSETT PLLC cgordon@a2xlaw.com 1717 Main Street, Suite 4200 Carter T. Hastings Dallas, Texas 75201 Federal I.D. No. 3101064 Telephone: (214) 462-6400 Texas Bar No. 24101879 Facsimile: (214) 462-6401 carter@a2xlaw.com ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 /s/ Clif Alexander 5/20/2019 Counsel for Plaintiffs Date /s/ Ramon D. Bissmeyer 5/20/2019 Counsel for Defendant Date 4812-2676-1623.2 -6-