UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 5, 2013
DANIEL MAES, ON BEHALF OF HIMSELF AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED,
MORGAN CHASE, ET AL.,
The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge
ORDER ON JOINT MOTION TO DETERMINE DISCOVERY DISPUTE - DENYING
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS TO IDENTIFY CLASS MEMBERS [ECF NO. 49]
Before the Court is the joint motion for determination of a discovery dispute filed on February 12, 2013. (ECF No. 49). The dispute regards Plaintiff's request for contact information for all putative class members and aggrieved employees. The Court held a hearing on March 1, 2013. For the following reasons, Plaintiff's motion DENIED.
History of the Dispute
On October 31, 2012, the parties filed a joint motion to determine discovery dispute regarding Defendants' responses to two interrogatories. (See ECF No. 26). Interrogatory No. 5 required Defendants to state the job duties performed by all class members during the relevant period. Interrogatory No. 6 required Defendants to identify all putative class members and aggrieved employees. Regarding Interrogatory No. 5, Defendants asserted, among other things, that the job titles of the employees who would be part of the putative class are structural only and there are no specific job descriptions or duties assigned to the various titles. Consequently, it not possible to describe all of the job duties performed by potential class members. Regarding Interrogatory No. 6, Defendants asserted discovery of the identities of putative class members was premature and there was an insufficient basis to require it. (Id.).
On November 26, 2012, the Court held a conference in chambers regarding four pending discovery disputes including the dispute over Interrogatories Nos. 5 and 6. (ECF No. 37). Following the conference, Court issued an Order requiring a further response from Defendants regarding Interrogatory No. 5. Regarding Interrogatory 6, the Court declined to require Defendants to produce contact information for putative class members pending their supplemental response to Interrogatory No. 5. (ECF No. 38).
On December 17, 2012, in advance of a case management conference, Defendants filed a notice regarding their compliance with Court's Order for supplementation of their answer to Interrogatory 5. (ECF No. 43). Plaintiff disputes that the response to Interrogatory No. 5 is sufficient and, consequently, is pressing for a ruling regarding Interrogatory No. 6 in the instant joint motion filed on February 12, 2013. (ECF Nos. 48, 49).
Prior to certification of a class, some discovery regarding the class be appropriate. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009)("Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question class certification and that some discovery will be warranted."). Discovery likely is warranted where the requested discovery will resolve factual issues necessary for the determination of whether the action may be maintained as a class action. Kamm v. California City Development Co., 509 F.2d 205, 210 (9th Cir. 1975). Plaintiff carries burden of making either a prima facie showing that the requirements of Fed.R.Civ.P. 23(a) to maintain a class action have been or "that discovery is likely to produce substantiation of the class allegations." Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).
Defendants supplemental response to Interrogatory No. 5 describes a system wherein employees who carry identical job titles have very different job duties even within the same office. Defendants also provided an extensive list of the possible job duties within the various job titles. (See ECF 43-1 at pages 5-12). Plaintiff has presented no evidence that the supplemental response is incomplete or inadequate. The Court finds that no further supplementation is required except as provided at Fed.R.Civ.P. 26(e).
Interrogatory No. 6 called upon Defendants to identify all class members and aggrieved employees.*fn1 Plaintiff's counsel conceded that Plaintiff cannot meet the burden of showing a prima facie case for class certification at this time. Plaintiff has offered no evidence that the discovery sought likely would substantiate the class allegations. Applying Mantolete, the Court DENIES Plaintiff's motion to compel a response to Interrogatory No. 6.
Assuming that Plaintiff did meet the burden under Mantolete of showing that the requested discovery likely would substantiate the class allegations, the Court would have authorized some discovery. As Court explained at the hearing, the discovery would have been of some percentage of the potential class. See, e.g., Murphy v. Target Corp., 2011 WL 2413439 (No. 09cv1436 S.D. Cal. June 14, 2011). The parties confirmed at the hearing on this matter that the putative class contains approximately 83 potential members. Defendants assert that of the potential class members have arbitration clauses in their employment agreements rendering them ineligible for membership in
class. (ECF No. 49 at ECF pp. 27-28). Counsel for Plaintiff confirmed at the hearing that Plaintiff has the contact information for eight potential class members that worked in the same office as Plaintiff. According to Plaintiff's counsel, the eight potential class members have not been contacted based upon a concern that such contact might be viewed as improper. Counsel for Defendants, however, disclaimed any such concern.
Plaintiff has the contact information of roughly 10% of the entire class and as much as roughly 30% of the class if the arbitration clauses
Cal.4th 969 (2009),The federal courts in California, even within this
District, are split on the issue. Compare Ivey v. Apogen Technologies,
2011 WL 3515936 (S.D. Cal. 2011) with Williams v. Lockheed Martin Corp., Case No. 090cv1669, ECF No. 134 (S.D. Cal. May 24, 2012). Until such time as class certification in this case is resolved, the Court will not differentiate the causes of action for discovery purposes.
in the employment agreements are determined to be valid. Plaintiff has at least as much, if not more, contact information than would have been authorized by the Court. It would be grounds to deny the motion
Plaintiff has the information that the Court would have otherwise authorized. See Taylor v. Waddell & Reed, Inc., 2012 WL 5574876 (No. 09cv2909 S.D. Cal. April 27, 2012). The Court finds that Plaintiff should be able to determine the feasibility of proceeding with a motion class certification with the information available to him.
For the foregoing reasons, Plaintiff's motion to compel Defendants respond to Interrogatory No. 6 and identify the class members and aggrieved employees is DENIED.