On October 2, 2013, Plaintiff Michael Kutzback, acting individually and on behalf of all others similarly situated, filed this action against Defendants. (ECF No. 1.) Plaintiff filed his Amended Complaint on January 3, 2014, alleging violations of the Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. (ECF No. 32.) Following the Parties' briefing on damages discovery, as previously described by the Court (ECF No. 432, 2–3), the assigned Magistrate Judge entered an Order for Phase II Damages Discovery on October 23, 2018 (ECF No. 380). The Phase II Damages Discovery Order set forth the language of the interrogatory at issue and provided:

(ECF No. 380, 3.) On March 17, 2020, this Court entered an Order Denying Defendants' Objections to the Magistrate Judge's Order for Phase II Damages Discovery, wherein the Court affirmed the Magistrate Judge's Order in its entirety. (ECF No. 431, 25.) Thus, pursuant to the Phase II Damages Discovery Order, 507 Opt-In Plaintiffs are subject to Phase II damages discovery. (See ECF Nos. 380 & 432, 5.)

On March 26, 2019, Defendants filed their Motion to Compel Opt-In Plaintiffs to Respond to Interrogatories, Document Requests, and Notices of Deposition and to Extend the Discovery Period (“Motion to Compel”).[1] (ECF No. 404.) In relevant part, Defendants argued that the Opt-In Plaintiffs' interrogatory responses were insufficient. (ECF No. 405, 3.) Attached to Defendants' Memorandum in Support of the Motion to Compel were exhibits, which included several Opt-In Plaintiffs' interrogatory responses. (See ECF No. 405.) In these attached interrogatory responses, each Opt-In Plaintiff answered only “yes” to part (a) of the interrogatory. Further, in response to part (b), each Opt-In Plaintiff provided generally the same answer indicating the “average” amount of hours worked per week (without actually answering specifically to each workweek) and stating that the number of off-the-clock hours “can be ascertained” by reference to Defendants' records. (ECF Nos. 405-3, 3; 405-4, 3; 405-5, 3; 405-6, 3; 405-7, 3; 405-8, 3; 405-9, 3; 405-10, 3; 405-11, 3; 405-12, 3; 405-14, 3.) On September 1, 2020, this Court entered an Order Granting in Part and Denying in Part Defendants' Motion to Compel (“Order on Motion to Compel”). (ECF No. 432.) Therein, this Court found the Opt-In Plaintiffs' interrogatory responses to be inadequate because the “responses fail to answer the most basic part of the interrogatory—whether they contend that they worked off the clock” and further, the Opt-Ins “did not attempt to identify the hours for which they were allegedly not compensated, but rather identified the number of hours they worked each week.” (Id. at 9.) The Order on Motion to Compel indicated, “[b]ecause the Phase II Opt-In Plaintiffs made no attempt to answer Defendants' interrogatories, the Court GRANTS Defendants' Motion to Compel to the extent it seeks supplemental responses from the Phase II Opt-In Plaintiffs who did respond to the interrogatories. Those Phase II Opt-In Plaintiffs have sixty (60) days from the entry of this Order to supplement their responses.” (Id.)

*2 The Court notes that the Parties do not agree on the legal standard governing Plaintiff's Motion. Plaintiff filed the Motion pursuant to Fed. R. Civ. P. 60(b). (ECF No. 437, 1.) Defendants, however, state that the Sixth Circuit applies Fed. R. Civ. P. 59(e) to motions for reconsideration.[2] (ECF No. 439, 4.)

Federal Rule of Civil Procedure 59(e) is inapplicable to motions for reconsideration when there is no judgment or final order. See Keith v. Bobby, 618 F.3d 594, 597 (6th Cir. 2010) (citing CGH Transp., Inc. v. Quebecor World, Inc., 261 F. App'x 817, 823 n.10 (6th Cir. 2008)). Similarly, Federal Rule of Civil Procedure 60(b) requires a final judgment or final order. See Fed. R. Civ. P. 60(b) advisory committee's note to 1946 amendment; see also Moore v. Alstom Power Turbomachines, LLC, 1:12-CV-292, 2013 U.S. Dist. LEXIS 202412, at *2–3 (E.D. Tenn. May 14, 2013).

Federal Rule of Civil Procedure 54(b) and the common law provide district courts with the power “to reconsider interlocutory orders and to reopen any part of a case before entry of a final judgment.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). “Traditionally, courts will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.” Id. (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998)).

*3 Plaintiff asks the Court to reconsider its Order on Motion to Compel (ECF No. 432) as to the interrogatory, alleging that Defendants misrepresented the Opt-Ins' interrogatory responses and that the Court relied on these alleged misrepresentations. (ECF No. 437, 1.) Plaintiff alternatively requests “clarification regarding the required supplementation of interrogatory responses.” (Id.) Plaintiff argues: (1) Defendants' alleged misrepresentations affected the Court's ruling; and (2) if the present Motion is denied, the Opt-Ins should not be required to verify their supplemental interrogatory responses. (Id. at 3–6.) Defendants argue that (1) Plaintiff has not satisfied the reconsideration standard; (2) there was no misrepresentation; (3) the Opt-In Plaintiffs may not rely on estimated averages of hours; and (4) the Opt-In Plaintiffs' supplemental responses should be verified and submitted under oath. (ECF No. 439, 4–5, 8–9.)

Adequacy of Interrogatory Answers

Federal Rule of Civil Procedure 33 provides that “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). Plaintiff's present Motion is not directed at Opt-Ins who provided no answer to part (a), but rather, only the Opt-Ins who answered part (a) affirmatively. (ECF No. 443, 3.) Plaintiff argues that Defendants misrepresented the interrogatory responses because most of the Opt-Ins answered “yes” to part (a) of the interrogatory question.[3] In support, Plaintiff attached to the present Motion exhibits of the Opt-Ins Plaintiffs' responses to the interrogatory question. (ECF No. 437-1.)

Contrary to Plaintiff's assertions, Defendants did not misrepresent the interrogatory responses, and the exhibits attached to Plaintiff's Motion support this conclusion. First, the interrogatory responses attached as exhibits to Plaintiff's present Motion contain the answer “yes” to part (a) and a statement that the off-the-clock hours may be “ascertained” by records in Defendants' possession in response to part (b) of Interrogatory No. 1. (See id. at 3, 6.) The interrogatory responses attached as exhibits to Defendants' Memorandum in Support of the Motion to Compel—which the Court considered in rendering its Order on Motion to Compel—contained the same answers. (See ECF Nos. 405-3, 3; 405-4, 3; 405-5, 3; 405-6, 3; 405-7, 3; 405-8, 3; 405-9, 3; 405-10, 3; 405-11, 3; 405-12, 3; 405-14, 3.) In other words, Plaintiff's exhibits for the present Motion are, for all functional purposes, the same as the exhibits attached to Defendants' Motion to Compel.

Most of the Opt-In Plaintiffs answered affirmatively to part (a) of the interrogatory. However, simply answering “yes” is clearly inadequate and unresponsive because it is not specific to each workweek. It is precisely this answer the Court found inadequate in the Order on Motion to Compel. During the hearing, the Court attempted to clarify the meaning of the answer “yes” to part (a) by asking Plaintiff's counsel if “yes” in response to part (a) meant that the Opt-Ins were stating that they worked off the clock for each workweek that they worked for Defendants. (ECF No. 452, 6–8, Hr'g Tr. 6:22–7:5, 8:10–8:20.) Plaintiff's counsel stated that (1) the Opt-Ins are unable to provide individual answers for each workweek because Defendants did not maintain proper records and (2) the Court had previously ruled that it would accept estimated averages.[4] (ECF No. 452, 8–9, Hr'g Tr. 8:21–9:20.) As to the first statement by Plaintiff's counsel, the Court finds no need to depart from or change its conclusion in the Order on the Motion to Compel. If “yes” in response to part (a) was intended to apply to each workweek that the Opt-Ins worked for Defendants, it would not have been difficult for the Opt-Ins to indicate as much in their response. Further, if the Opt-Ins could not provide an answer for each workweek due to lack of records, the proper course would have been for the Opt-Ins to state as much. See Lee v. Metro. Gov't of Nashville/Davidson Cty., No. 3-06-0108, 2008 WL 687516, at *4 (M.D. Tenn. Mar. 11, 2008) (“There may well be interrogatories that the plaintiffs simply cannot answer. If that is the case, the plaintiffs should respond that they do not know.”). The Opt-Ins have the obligation to provide “any and all information available” to them in responding to the interrogatory. See Mohnsam v. Nemes, No. 3:17-CV-427-CRS-CHL, 2019 U.S. Dist. LEXIS 122107, at *12 (W.D. Ky. July 22, 2019) (emphasis in original) (citation omitted).

*4 Plaintiff's counsel also explained during the hearing that they can compare the week-by-week records with the average hours estimated by the Opt-Ins in response to part (b) to determine how many hours each Opt-In worked off the clock each week. (ECF No. 452, 14–15, Hr'g Tr. 14:19–15:18.) Since Plaintiff's attorneys have the ability do this, it follows that they can answer as to which weeks the Opt-In Plaintiffs claim they worked off the clock in response to part (a). Overall, it is clear to the Court that the Opt-In Plaintiffs' one-word “yes” response to a Court-approved interrogatory inquiring as to each workweek was an incomplete answer and was thus insufficient. See Fed. R. Civ. P. 37(a)(4).

Plaintiff next argues for reconsideration of the Court's Order on Motion to Compel as to part (b) of the interrogatory, reasoning it appears that the Court's ruling on part (b) of the interrogatory was based on the ruling on part (a). (ECF No. 437, 3.) As provided in the Court's Order on the Motion to Compel, the Court found the Opt-In Plaintiffs' answers to part (b) inadequate, and the Court finds no reason to depart from or change that conclusion. (ECF No. 432, 9.) An estimated range of hours worked, provided in response to part (b) of the interrogatory, does not answer how many hours for each workweek the Opt-In Plaintiffs allegedly worked off the clock or for which they were not compensated. For example, an answer to part (b) in one of Plaintiff's exhibits provides, in relevant part: “On average, I worked approximately 55–60 hours a week.” (ECF No. 437-1, 3.) This does not answer what hours were worked off-the-clock each week. Another example is the rest of the response to part (b): “The amount of off-the-clock hours worked can be ascertained by the pay and time records in Defendants' possession, incorporated by reference herein.” (Id.) The Court finds this response problematic because it is clearly unresponsive. First, it does not help determine how many hours were worked off-the-clock in each workweek. Second, it requires Defendants to derive an answer from the response, instead of the Opt-In answering the interrogatory.

Plaintiff also argues that the Opt-Ins may rely on estimates, but the Court has addressed this issue as well. On March 16, 2018, the Court entered an Order Denying Defendants' Motion for Partial Summary Judgment on the Claims of the California Opt-In Plaintiffs, Denying in Part Defendants' Motion to Decertify the Collective Action, and Denying Defendants' Motion for Summary Judgment on the Claims of Plaintiff Michael Kutzback (“March 16, 2018 Order”), wherein the Court addressed the issue of estimates. (ECF No. 357.) Plaintiff's Reply cites the March 16, 2018 Order and states “this Court has already held that Plaintiffs may use estimates to prove their damages.” (ECF No. 443, 2–3.) In their Response and at the hearing, Defendants' counsel argued that the Court's March 16, 2018 Order, insofar as it involved the issue of estimates, addressed proof that may be presented to the jury when it hears this case rather than discovery requirements. (ECF No. 439, 8; ECF No. 452, 17, Hr'g Tr. 17:19–17:25.) The Court agrees. Whether Plaintiffs ultimately rely on estimates for proof at trial is an issue separate from Plaintiffs' answers to Court-approved interrogatories.

The portion of the March 16, 2018 Order (ECF No. 357, 14–15) cited by Plaintiff addressed Defendants' Motion to Decertify the Collective Action (ECF No. 285).[5] (ECF No. 443, 3.) However, this does not support Plaintiff's position as to the use of estimates in response to the Court-approved interrogatory. In analyzing Defendants' Motion for Decertification, the Court was required to determine whether Plaintiffs were similarly situated, which in turn involved considering the factor of factual and employment settings among the Opt-In Plaintiffs. (ECF No. 357, 10–19.) However, the portion of the March 16, 2018 Order cited by Plaintiff addressed decertification and the relaxed standard of proof for Plaintiff and the Opt-Ins as to showing damages at trial, a matter distinct from the adequacy of interrogatory responses. See O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 602–03 (6th Cir. 2009) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); see also Monroe v. FTS USA, LLC, 860 F.3d 389, 398 (6th Cir. 2017) (“[T]he Supreme Court's opinion in Anderson v. Mt. Clemens Pottery Co. ... explains the burden of proof at trial.”) Additionally, even if the Opt-In Plaintiffs could rely on estimates in the interrogatory responses, it would not change the fact that the estimates were not made for each workweek. Finally, the Court noted in the Order on Motion to Compel that “[c]ontrary to Plaintiff's position, the issue is not whether Opt-In Plaintiffs are allowed to rely upon an estimated number of hours worked. The issue is whether the Phase II Opt-In Plaintiffs failed to answer the Court-approved interrogatory.” (ECF No. 432, 9.) The Court now reaffirms this framing of the issue. The Court is mindful of the difficulties inherent in providing exact off-the-clock hour calculations for so many Opt-In Plaintiffs years after the fact. However, the Opt-In Plaintiffs have an obligation to answer the Court-approved interrogatory to the best of their abilities.

*5 Plaintiff has failed to demonstrate grounds for reconsideration of the Court's Order on Motion to Compel. See Rodriguez, 89 F. App'x at 959 (citation omitted); see also LR 7.3(b). To the extent that Plaintiff's Motion for Reconsideration asserts that the Opt-Ins' interrogatory responses to parts (a) and (b) were sufficient and do not require supplementation, Plaintiff's Motion is DENIED. Opt-In Plaintiffs must supplement their interrogatory responses with answers specific to each workweek in both parts (a) and (b). As to part (b), Plaintiffs must provide the number of off-the-clock hours specific to each workweek with the maximum precision possible under the circumstances. The Court addresses the method of supplementing the interrogatory responses and whether verification is required in the section below.

Method and Verification of Supplemental Responses

Plaintiff also seeks clarification of the Court's Order on Motion to Compel regarding the supplemental interrogatory responses, stating: “To the extent the Court Denies Plaintiff's Motion for Reconsideration, Plaintiff seeks clarification of the Court's order to supplement the interrogatory responses. Plaintiff requests the Court clarify whether such supplemental responses must be verified once again.” (ECF No. 437, 4.) Plaintiff further requests the opportunity to “calculate the number of off-the-clock hours worked for each Opt-in by subtracting the number of hours the Opt-Ins allege to have worked in their individual interrogatory answers from the number of hours the Opt-Ins were compensated for each workweek as reflected on Defendants' payroll records.” (Id. at 5.) Plaintiff maintains that this would not require verification from the Opt-In Plaintiffs. (Id.) Defendants argue that the Opt-In Plaintiffs must sign and verify their interrogatory responses under oath as provided in the Federal Rules. (ECF No. 439, 9; ECF No. 452, 20, Hr'g Tr. 20:16–20:21.)

As explained, the Opt-In Plaintiffs' responses to part (b) apprised Defendants that the hours worked off-the-clock each week could “be ascertained” by reference to Defendants' records. In briefing the Motion to Compel, Plaintiff contended that Defendants could learn the off-the-clock hours through the use of “simple arithmetic.” (ECF No. 410, 13.) As described above, and as indicated at the hearing, Plaintiff's attorneys now seek to do the arithmetic themselves and then provide the numbers in the supplemental interrogatory responses. (ECF No. 452, Hr'g Tr. 12:19– 13:19.) Plaintiff's counsel argued at the hearing that because the supplemental responses will be based on the Opt-Ins' initial responses, which were verified, verification for the supplemental responses is unnecessary.[6] (ECF No. 452, 11–12, 20, Hr'g Tr. 11:9–12:13, 12:22–13:5, 20:2– 20:9.) Plaintiff's counsel also indicated that verifying the supplemental responses would require “hundreds, if not thousands of additional hours.” (ECF No. 452, 6, Hr'g Tr. 6:1–6:8.)

Federal Rule of Civil Procedure 33 provides “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). Rule 33 adds, “[t]he person who makes the answers must sign them, and the attorney who objects must sign any objections.” Fed. R. Civ. P. 33(b)(5). Plaintiff's attorneys stated during the hearing that they are willing to create charts based on the Opt-Ins' estimates in the original interrogatory responses as compared to Defendants' payroll records, and these charts will indicate off-the-clock hours week-by-week. (ECF No. 452, 11, 12, Hr'g Tr. 11:9–12:13.) These charts will serve as the supplemental interrogatory responses. Thus, Plaintiff's attorneys will supplement the Opt-Ins' original interrogatory responses, which were verified, with information derived from the original interrogatory responses.

*6 The Court is well aware of the magnitude of this case and the interrogatory responses at issue.[7] As the Court indicated during the hearing, to the extent that Plaintiffs can show that the charts are based on verified information, the Court—at this time—finds this method of supplementation sufficient without additional verification. (ECF No. 452, 23, Hr'g Tr. 23:11– 23:25; 23:22–23:25.) In all other respects, Plaintiff's Motion for Reconsideration is DENIED.

For the reasons provided above, Plaintiff Motion for Reconsideration and/or Clarification is DENIED. Plaintiffs shall supplement their interrogatory responses as provided in this Order.

IT IS SO ORDERED on this 8th day of February, 2021.

In the present Motion, Plaintiff states that “since the filing of Defendants' Motion to Compel, 256 Opt-In Plaintiffs have responded to the interrogatories, not 138. In other words, effectively 50% of the representative class sample has responded to the interrogatories.” (ECF No. 437, 2 n.1.)

The Sixth Circuit has explained that treating a motion for reconsideration as a motion to alter or amend the judgment under Rule 59(e) “makes little sense” in districts with “local rule[s] specifically providing for a motion for reconsideration.” Papas v. Buchwald Capital Advisors, LLC (In re Greektown Holdings, LLC), 728 F.3d 567, 574 (6th Cir. 2013). Further, as explained below, Rule 59(e) requires a final order or judgment. While Plaintiff brings the Motion pursuant to Federal Rule of Civil Procedure 60(b), the Western District of Tennessee's Local Rules provide that prior to final judgment, “any party may move, pursuant to Fed. R. Civ. P. 54(b), for the revision of any interlocutory order made by the Court on any ground set forth in [Local Rule 7.3(b)]. Motions to reconsider interlocutory orders are not otherwise permitted.” LR 7.3(a). The Local Rules further provide:

Plaintiff specifically points to the portion of Defendants' Memorandum in Support of the Motion to Compel that stated: “The Opt-Ins did not state whether they contend that they worked ‘off the clock’ during each week of their employment; and the Opt-Ins did not identify the number of hours for which Defendants allegedly failed to pay them during each week of their employment.” (ECF Nos. 405, 6 & 437, 2.)

The Court addresses the issue of estimated averages below.

The relevant portion of the Court's March 16, 2018 Order stated:

As confirmed by Plaintiff's counsel during the hearing, Plaintiff's Motion involves only those Opt-In Plaintiffs who previously filed verified answers. (ECF No. 452, 22–23, Hr'g Tr. 22:23–23:4.)

Plaintiff indicates that 256 interrogatory responses would require verification if the Court should order such. (ECF No. 437, 5.)