Cardoza v. Bloomin' Brands, Inc.
141 F. Supp. 3d 1137
| D. Nev. | 2015Background
- Collective FLSA action with ~9,500 opt-in plaintiffs; court entered an August 18, 2015 order allowing defendants to serve written discovery on 10% of opt-ins and take up to 95 depositions of those sampled opt-ins. Plaintiffs could depose corresponding managers.
- After the August 18 Order, Plaintiffs’ counsel served 132,860 written discovery requests on defendants, generated for each sampled opt-in plaintiff. Defendants objected.
- Plaintiffs filed an emergency motion to compel responses or to modify the August 18 Order so sampled opt-in plaintiffs could propound written discovery; defendants opposed.
- The court found Plaintiffs initially failed to meet emergency-motion technical and substantive standards, later granted limited emergency treatment but concluded Plaintiffs had known of the dispute in August and delayed bringing it—thus creating the emergency.
- The court found Plaintiffs’ meet-and-confer efforts insufficient as to individualized objections and denied the motion to compel without prejudice, while granting in part the motion to modify the August 18 Order to allow limited written discovery by sampled opt-in plaintiffs subject to limits and sequencing. Counsel were ordered to meet and submit a joint, staggered discovery plan by Oct. 30, 2015.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs could obtain emergency treatment of their motion | Needed expedited resolution to preserve the aggressive discovery schedule | Plaintiffs delayed and created the emergency; no proper emergency showing | Emergency treatment initially denied; limited emergency review later but court faulted Plaintiffs for delay |
| Adequacy of meet-and-confer certification | Plaintiffs certified a meet-and-confer occurred | Defendants contended discussions failed to address many specific objections | Meet-and-confer was inadequate; motion to compel denied without prejudice |
| Whether sampled opt-in plaintiffs may propound written discovery on defendants | Plaintiffs sought to propound written discovery for each sampled opt-in | Defendants argued August 18 Order did not authorize plaintiffs to propound such discovery and producing responses to all requests is burdensome | Court allowed sampled opt-ins to propound some written discovery relevant to certification but limited by Rule 26(b)(2)(C) factors; current requests appear excessive |
| Timing and sequencing of discovery responses between parties | Plaintiffs wanted concurrent discovery exchange | Defendants argued responses should be staggered (some opt-ins may drop claims; applicability varies) | Court ordered staggered deadlines; directed counsel to confer and submit a joint proposal (including limits and potential extension of deadlines) |
Key Cases Cited
- Intermagnetics Am., Inc. v. Walker, 101 B.R. 191 (C.D. Cal. 1989) (discusses administrative burdens and gamesmanship concerns with ex parte/emergency motions)
- Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488 (C.D. Cal. 1995) (emergency relief requires lack of fault creating crisis and irreparable prejudice)
- ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev. 1996) (personal consultation requirement: two-way, specific meet-and-confer obligations before discovery motions)
- F.D.I.C. v. Butcher, 116 F.R.D. 196 (E.D. Tenn. 1986) (discovery should proceed with minimal court involvement; courts expect cooperation before intervention)