Saldana v. Mission Drywall, Inc. et al

Western District of Texas, txwd-5:2018-cv-01060

Rule 26(f) Discovery Report/Case Management Plan by Michael Saldana.

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION § MICHAEL SALDAÑA, § Individually and on behalf § of all others similarly situated, § § Civil Action No. 5:18-cv-01060-FB Plaintiff, § § v. § JURY TRIAL DEMANDED § MISSION DRYWALL, INC., BOB MUTZ, § and DAVID ERNST, § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. § 216(b) Defendants. § § 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 July 15, 2019. Carter Hastings appeared on behalf of Plaintiff, Michael Galo appeared on behalf of Defendants Mission Drywall, Inc. and David Ernst, and David Evans appeared on behalf of Defendant Bob Mutz. 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 collective of current and former employees who worked for Defendant and who were not paid overtime for all hours worked over forty (40) in a workweek. Plaintiff alleges Defendant violated the FLSA by failing to pay Plaintiff and the Putative Class Members overtime compensation for all hours worked over forty (40) in a workweek. 4812-2676-1623.2 Defendants contend that Plaintiff was properly classified as an independent contractor, and as such, was not owed any overtime premium for any hours worked over 40 in any given workweek. Furthermore, Defendants contend that the opt-in plaintiffs were the employees/workers of Plaintiff Saldana, and as such were not the employees of Defendants. In addition, Defendant Mutz contends that he was no longer associated in any way with Defendant Mission Drywall, Inc. starting in December 2015 as he retired from the business and transferred his interest to Mr. Ernst. This would present possible limitations defenses to Plaintiffs' claims. 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 collective 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. 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. Defendant asserts that collective action treatment is not appropriate in this matter. 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 July 29, 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. -2- A. Responses to the matters covered in Rule 26(f), including any agreements 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 Defendants' 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. (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. None at this time. (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 Defendants 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. -3- C. When and to whom the defendant anticipates it may send interrogatories. Defendants anticipate 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 Defendants, 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 Defendants' 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. Defendants anticipate 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 July 23, 2019. Defendants will designate experts, if any, and provide Rule 26(a)(2)(B) reports by September 6, 2019. 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 October -4- 21, 2019. 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. -5- Plaintiff filed his Certificate of Interested Parties on October 23, 2018. Defendant will file its Certificate of Interested Parties on July 31, 2019. 22. List the names, bar numbers, addresses, and telephone numbers of all counsel. COUNSEL FOR PLAINTIFFS: COUNSEL FOR DEFENDANTS MISSION DRYWALL, INC. AND Clif Alexander DAVID ERNST: Federal I.D. No. 1138436 Texas Bar No. 24064805 Michael V. Galo, Jr. Texas Bar No. 99790734 Lauren E. Braddy Galo Law Firm, P.C. Federal I.D. No. 1122168 4230 Gardendale, Bldg.401 Texas Bar No. 24071993 San Antonio, Texas 78229 210.616.9800 Alan Clifton Gordon Fax: 210.616.9898 Federal I.D. No. 19259 Texas Bar No. 00793838 COUNSEL FOR DEFENDANT Carter T. Hastings BOB MUTZ: Federal I.D. No. 3101064 Texas Bar No. 24101879 David M. Evans Texas Bar No. 24032163 ANDERSON ALEXANDER, PLLC 750 East Mulberry, Suite 407 819 N. Upper Broadway San Antonio, Texas 78212 Corpus Christi, Texas 78401 210.880.4606 (main) Telephone: (361) 452-1279 210.800.9876 (fax) Facsimile: (361) 452-1284 /s/Carter Hastings 7/15/2019 Counsel for Plaintiffs Date /s/ Michael Galo Jr. 7/15/2019 Counsel for Defendants Mission Drywall, Inc. Date and David Ernst /s/ David Evans 7/15/2019 Counsel for Defendant Bob Mutz Date -6-