Taylor v. C6 Disposal Systems, Inc.

Western District of Texas, txwd-5:2019-cv-00347

Rule 26(f) Discovery Report/Case Management Plan by C6 DISPOSAL SYSTEMS, INC.

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0 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf of all § others similarly situated § § PLAINTIFF, § § v. § CIV. ACTION NO. 5:19-CV-00347-ESC § C6 DISPOSAL SYSTEMS, INC., § DEFENDANT. § § PROPOSED JOINT DISCOVERY/CASE MANAGEMENT PLAN NOW COME, Charles Taylor Individually and on behalf of all others similarly situated ("Taylor") and C6 Disposal Systems, Inc. ("C6") and respectfully submit the following Joint Discovery/Case Management Plan for this case: 1. Are there any outstanding jurisdictional issues? None. 2. Are there any unserved parties? None. 3. What are the causes of action, defenses, and counterclaims in this case? a. Plaintiffs' Causes of Action – Plaintiff has filed this lawsuit as a collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201–219, seeking to recover unpaid overtime compensation on behalf of himself and all others similarly situated for compensable time that C6's employees spent working off the clock, and without pay. Plaintiff also filed a class action pursuant to Federal Rule of 1 0 Civil Procedure 23(b)(3) based on the Texas equitable common law claim of quantum meruit to recover the unpaid compensation not recoverable under the FLSA. Specifically, Plaintiff contends that C6's corporate policy to automatically deduct a thirty (30) minute lunch break, despite having actual and/or constructive knowledge that Plaintiffs were in fact working through that break, constitutes a violation of both Federal and State law. b. C6 defenses – i. Taylor never told C6 he was not taking a meal break, and instead made a daily, written, signed representation that he had been "relieved of duty for one half hour for meals." ii. C6 neither knew nor should have known that Taylor was violating company policy and federal regulations by not taking a 30-minute meal break iii. This case is not suitable for collective action treatment as individual questions regarding whether and when certain drivers violated company policy and federal regulations by not taking a 30 minute meal break, whether and when those drivers informed C6 that they had failed to take a 30 minute meal break or C6 otherwise knew that fact, and whether and to what extent any bona fide meal break was taken by those drivers on those days would greatly predominate over any common issues. 2 0 iv. See also, C6's Original Answer and Counterclaim at pp. 13-17. c. C6 counterclaim – counterclaim for fraud arising out of Taylor's multiple, written, signed representations that he was taking 30 minute meal breaks as required by C6 company policy and federal safety regulations, while he was allegedly not taking a meal break and was simultaneously suing his former employer for allegedly forcing him to work through his meal break while improperly deducting a 30-minute meal break from his daily time. 4. What are the elements of the cause(s) of action, defenses, and counterclaims pled? a. Plaintiff's FLSA claim i. C6 employed Plaintiffs during the relevant time period; ii. C6 is a covered employer under the FLSA; iii. Plaintiffs' work was engaged in commerce or in the production of goods for commerce; iv. C6 failed to pay Plaintiffs the overtime pay required by law. b. Plaintiff's Quantum Meruit claim i. Plaintiffs provided valuable services for C6; ii. C6 knew that Plaintiffs provided services on its behalf and that they did so with its acquiescence; iii. C6 benefitted from Plaintiffs services on its behalf; 3 0 iv. Plaintiffs expected to be compensated for the services provided to C6. c. C6's defenses i. C6 company policy and federal safety regulations required Taylor to take a 30-minute meal break, which is a bona fide meal break pursuant to 29 C.F.R. §785.19 ii. C6 neither new nor had reason to know that Taylor was allegedly not taking meal breaks, when he never told C6 that he was not taking a meal break and instead represented in writing that he was taking a meal break, all while suing his former employer for allegedly not paying him for meal breaks. iii. See also, C6's Original Answer and Counterclaim at pp. 13-17. d. C6's counterclaim i. Taylor made a material representation that was false; ii. Taylor knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; iii. Taylor intended to induce C6 to act upon the representation, iv. C6 actually and justifiably relied on the representation, which caused injury to C6. OR 4 0 i. Taylor failed to disclose facts to C6; ii. Taylor had a duty to disclose those facts; iii. the facts were material; iv. Taylor knew the plaintiff was ignorant of the facts and the plaintiff did not have an equal opportunity to discover the facts; v. Taylor was deliberately silent when he had a duty to speak; vi. by failing to disclose the facts, Taylor intended to induce C6 to take some action or refrain from acting; vii. C6 relied on Taylor's nondisclosure; and viii. C6 was injured as a result of acting without that knowledge. 5. Are there any agreements or stipulations that can be made about any facts in this case or any element in the cause(s) of action? • C6 can stipulate that it employed Taylor during the time period between May 1, 2015 and November 6, 2017 • C6 can stipulate that Plaintiff performed work and was engaged in commerce or in the production of goods for commerce. • C6 can stipulate that it is a covered employer. 6. State the parties' views and proposals on all items identified in Fed. R. Civ. P. 26(f)(3). a. what changes should be made in the timing, form, or requirement for 5 0 disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made. Initial disclosures have already been exchanged. Plaintiff provided his initial disclosures on June 11, 2019. C6 Provided its initial disclosures on June 10, 2019. C6 is in the process of collecting documents identified therein for production; b. the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues i. Subjects – 1. Whether Plaintiff (and the putative collective action members/class, if certified) worked through their meal breaks; 2. Whether C6 knew or should have known that Plaintiff (and the putative collective action members/class, if certified) worked through their meal breaks; 3. Whether C6, by and through its supervisors, caused Plaintiff (and the putative collective action members/class, if certified) to work through their meal breaks; 4. Whether Taylor is similarly situated to the opt-in plaintiffs and Putative Class Members, as defined in Plaintiff's Original Complaint; 6 0 5. The amount of damages, if any, owed to Plaintiff (and the putative collective action members/class, if certified) as a result of their alleged off-the-clock work; 6. Whether Taylor committed fraud by acknowledging in a signed writing that he had been "relieved of duty for one half hour for meals" but now claiming that he actually skipped his meal breaks. ii. Discovery should be completed by March 6, 2019. iii. Discovery should be comprehensive rather than done in phases. b. any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced. None, the parties have discussed production of ESI data from C6's contractor who provides GPS systems for C6's trucks and have agreed to work together regarding the form of the production. c. any issues about claims of privilege or of 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 under Federal Rule of Evidence 502 – i. The Parties have conferred and have agreed to draft a protective order and a claw-back agreement under Rule 502. 7 0 ii. C6 intends to seek production of communications between Taylor and his attorneys pursuant to the crime-fraud exception to the attorney client privilege. Such communications should be first presented to the Court for in camera inspection to determine if the crime-fraud exception applies. Plaintiffs will vigorously oppose any such request. d. what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed. None at this time. e. any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c) None at this time. 7. What, if any, discovery has been completed? What discovery remains to be done? Have the parties considered conducting discovery in phases? \ • The parties have exchanged initial disclosures and C6 has sent written discovery to Taylor for which responses are due on August 12, 2019.1 Additional discovery that remains to be done would include additional written discovery between the parties, depositions, and potentially subpoenas to third parties such as Taylor's former and current employer. The parties do not believe discovery should be completed in phases. 1Plaintiff believes that C6 served interrogatories untimely. C6 disagrees, but has agreed to provide an extension for the same. 8 0 8. What, if any, discovery disputes exist? Whether and to what extent C6 may obtain information from Taylor's former and current employer to show that his misrepresentations to C6 regarding his meal breaks were part of a pattern of fraudulent conduct designed to set up his employers for FLSA claims. Whether C6 may obtain communications between Taylor and his attorneys for this same purpose. 9. Have the parties discussed the desirability of filing a proposed order pursuant to Federal Rule of Evidence 502? Yes. The Parties have agreed to file a proposed order pursuant to Federal Rule of Evidence 502. 10. Have the parties discussed mediation? Yes, and both parties are open to an early mediation. 9 0 Date: July 25, 2019 Respectfully submitted, ANDERSON ALEXANDER, PLLC By: /s/ Lauren E. Braddy CLIF ALEXANDER State Bar No.: 24064805 clif@a2xlaw.com LAUREN E. BRADDY State Bar No.: 24071993 lauren@a2xlaw.com ALAN CLIFTON GORDON State Bar No.: 00793838 cgordon@a2xlaw.com CARTER T. HASTINGS State Bar No.: 24101879 carter@a2xlaw.com 819 N. Upper Broadway Corpus Christi, Texas 78401 (361) 452-1279 Telephone (361) 452-1284 Facsimile Attorneys for Plaintiff and Putative Class Members RILEY & RILEY ATTORNEYS AT LAW By: /s/ Charles Riley CHARLES RILEY State Bar No. 24039138 320 Lexington Avenue. San Antonio, Texas 78215 (210) 225-7236 Telephone (210) 227-7907 Facsimile charlesriley@rileylawfirm.com Attorney for Defendant 10