Spillers v. Louisiana PHS, L. L. C.
Spillers v. Louisiana PHS, L. L. C.
2021 WL 6206974 (W.D. La. 2021)
November 16, 2021
McClusky, Kayla Dye, United States Magistrate Judge
Summary
The court granted the motion to compel, ordering Defendants to fully respond to Interrogatory No. 5, which included ESI. The court also ordered Defendants to remit the single sum of $400.00 to Plaintiff Nickie Spillers, via her attorney, and file proof of payment in the record of these proceedings. The court emphasized that the party must make a reasonable search of all sources reasonably likely to contain responsive documents.
NICKIE SPILLERS
v.
LOUISIANA PHS, L. L. C., ET AL
v.
LOUISIANA PHS, L. L. C., ET AL
CIV. ACTION NO. 3:21-00762
United States District Court, W.D. Louisiana, Monroe Division
Signed November 16, 2021
Counsel
Justine Geiger Daniel, Casey Rose Denson, Casey Denson Law, Kenneth Charles Bordes, Law Office of Kenneth C. Bordes, New Orleans, LA, for Nickie Spillers.Eric R. Miller, Kullman Firm, Baton Rouge, LA, Mina Rosette Ghantous, Kullman Firm, New Orleans, LA, for Louisiana PHS LLC, Provider Health Services LLC.
McClusky, Kayla Dye, United States Magistrate Judge
MEMORANDUM ORDER
*1 Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to compel preliminary discovery responses and associated request for fees and costs [doc. # 18] filed by Plaintiff Nickie Spillers. The motion is opposed. For reasons assigned below, the motion is GRANTED.[1]
Background
On March 22, 2021, Nickie Spillers, a nurse practitioner, filed the instant complaint against her former employer(s) Louisiana PHS, L.L.C. (“PHS”) and Provider Health Services, L.L.C. (“Provider Health”), as a result of Defendants’ failure to pay Spillers any wages for her last six weeks of work, which they used to offset fines and penalties that they had assessed against her. See Compl., ¶ 1. Spillers further asserted that Defendants had implemented policies that caused non-exempt employees like herself to work far more than 40 hours per workweek, without payment of overtime compensation. Id., ¶ 2. As a result of these practices, Spillers invoked the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and seeks to certify a collective action on behalf of herself and other similarly situated current and former nurse practitioners who have worked as employees at Defendants’ long-term care facilities to recover lost wages, liquidated damages, attorney's fees, and costs. Id., ¶¶ 3, 84.
Spillers further alleged that Defendants’ conduct transgressed various Louisiana state law provisions, including the Louisiana Wage Payment Act, Louisiana Revised Statute §§ 23:621, et seq. (hereinafter “LWPA”); the Louisiana Unfair Trade Practices Act, Louisiana Revised Statute §§ 51:1401, et seq. (hereinafter “LUTPA”); Louisiana Civil Code Article 2315 for conversion and misappropriation; Louisiana Civil Code Articles 1994, 1967, and 2298 for breach of contract, detrimental reliance, and unjust enrichment; plus quantum meruit. (Compl.). For her state law claims, Spillers seeks to recover emotional damages, unpaid wages, lost future wages, compensation for fines and deductions, 90 days of penalty wages, treble damages, costs, attorney fees, and pre- and post-judgment interest. Id., ¶ 157.
Spillers also seeks to certify a class action under Rule 23 to advance her state law claims on behalf of
[a]ll current and former Nurses and/or Nurse Practitioners of Defendants, who have been employed at any time within three (3) years of the filing of this Complaint through the present, and have either:
(1) Not been paid all earned wages by Defendants since termination of employment,(2) are still employed and have not been timely paid all earned wages by Defendants,(3) Had earned wages reduced for any reason, including for “orienting, training, credentialing, licensing, insuring and onboarding” with Defendants, $150.00 per day fine assessments related to termination of employment, and/or Defendants’ deduction of all earned wages during an employee's final weeks of employment, or*2 (4) Were fined by Defendants for previously reimbursed expenses such as malpractice coverage and licensing or other contractually promised reimbursements.
(Compl., ¶¶ 128, et seq.).
Defendants filed their Answer on May 19, 2021. [doc. # 5]. On June 2, 2021, Spillers served Defendants with her First Set of Interrogatories and First Set of Requests for Production of Documents (“RFPs”). (M/Compel, Exh. A [doc. # 18-2]).
On July 14, 2021, the court held a scheduling conference and directed the parties to submit a proposed discovery schedule for the collective action determination consistent with Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021). On July 15, 2021, the court adopted the parties’ proposed order, as modified, and authorized preliminary discovery on the collective action issue limited to the following topics: job duties, employee classifications, facilities, pay structure, work schedules, work policies and procedures, management structure, hiring structure, work contracts, and ownership and management of entities. (July 15, 2021, Mem. Order [doc. # 13]). The court set an August 31, 2021, deadline to complete pre-notice discovery and a September 21, 2021, deadline for Spillers to file her anticipated motion for collective action certification. Id.
On August 9, 2021, Defendants provided Spillers with their responses to her first set of discovery requests. (M/Compel, Exh. D [doc. # 18-5]). On August 10, 2021, Spillers propounded two additional requests for production to Defendants. Id., Exh. E [doc. # 18-6].
On August 16, 2021, counsel for Spillers sent a discovery conferral letter detailing numerous deficiencies in Defendants’ responses to her first set of Interrogatories and RFPs. Id., Exh. F [doc. # 18-7]. On August 23, 2021, after receiving no response from Defendants for one week, Spillers’ counsel emailed defense counsel to check on the status of the outstanding discovery responses. Id., Exh. G. [doc. # 18-8]. That same day, defense counsel replied that they were “working through those,” and that he would provide an update after a call scheduled with his client for the following day. Id., Exh. H [doc. # 18-9].
When by August 25, 2021, Spillers still had not received a response or status update from Defendants, Spillers’ counsel sent another follow-up email. Id., Exh. I [doc. # 18-10]. Again, however, Defendants failed to respond. On August 27, 2021, Spillers’ counsel sent another email and, given the delays, suggested a joint motion to extend the preliminary discovery and collective action certification deadlines. Id., Exh. J [doc. # 18-11]. Defense counsel immediately replied that he was agreeable to an extension and assured Spillers that they were working on the responses and even intended to produce some records that same day. Id., Exh. K [doc. # 18-12]. On September 2, 2021, the court granted the parties’ joint motion to extend the pre-notice discovery and collective action certification deadlines to September 14 and 28, 2021, respectively. See doc. #s 14-15.
On September 9, 2021, Defendants provided supplemental discovery material in response to two of Spillers’ discovery requests, RFP Nos. 8 and 9, which had been served on August 10, 2021. Id. Exh. L [doc. # 18-13]. On September 13, 2021, after reviewing Defendants’ newly produced discovery documents, Spillers sent a second conferral letter regarding the material missing from Defendants’ second set of discovery responses, as well as the remaining deficiencies outlined in Spillers’ first conferral letter. Id., Exh. M [doc. # 18-14]. In light of the impending deadlines, Spillers’ counsel cautioned that she would have to file a motion to compel the missing documents in the absence of Defendants’ obtaining an extension of time from the court in which to meet their discovery obligations. Id. Defendants, however, did not respond.
*3 On September 14-15, 2021, Spillers duly filed the instant motion to compel Defendants to answer her outstanding Interrogatories and Requests for Production of Documents in full and to award her all reasonable expenses and attorneys’ fees incurred in bringing the motion. On September 16, 2021, the court ordered the parties to confer in a further attempt to bridge the discovery issues that prompted the instant motion. (Sept. 16, 2021, Order [doc. # 19]). On September 24, 2021, the court granted Spillers an unopposed extension of time until October 19, 2021, in which to file her motion for collective action certification. [doc. #s 22-23].
On September 29, 2021, Spillers filed a supplemental certification regarding her motion to compel preliminary discovery wherein she documented the parties’ discovery conciliation efforts and updated the court on the status of the issues that prompted the motion to compel. [doc. # 24]. In short, Defendants had agreed to produce responses to much of the outstanding discovery. Nonetheless, Defendants refused to provide discovery responses and documents for putative class members, i.e., nurse practitioners, who provided medical services outside the State of Louisiana. Defendants also declined to fully respond to Interrogatory No. 5 regarding Defendants’ management structure on the basis that “members of the LLC and/or other entities to which those members may also be members of” was not relevant to this suit. Id.
On October 6, 2021, Defendants filed their opposition to the motion to compel wherein they stated that they were in the process of supplementing many of their discovery responses. (Defs.’ Opp. Brief [doc. # 25]). However, Defendants drew the line when it came to discovery pertaining to nurse practitioners employed by entities in other states because those entities that employ the non-resident nurse practitioners were not parties to this suit. In other words, the current Defendants do not employ any similarly situated nurse practitioners in other states.
Defendants further asserted that the court would not have personal jurisdiction over any FLSA claims brought by non-resident nurse practitioners in this forum. See Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., ___ U.S. ___, 137 S.Ct. 1773; (2017); Canaday v. Anthem Companies, Inc., 9 F.4th 392, 400 (6th Cir. 2021); and Vallone v. CJS Sols. Grp., LLC, 9 F.4th 861 (8th Cir. 2021). With regard to the putative Rule 23 class claims, Defendants emphasized that there were no allegations to show that non-resident nurse practitioners had any relationship with Louisiana such that they could assert claims against Defendants under Louisiana state law. Finally, Defendants agreed to supplement their response to Interrogatory No. 5 to identify the owners of Provider Health.
On October 15, 2021, Spillers filed her reply brief, wherein she challenged Defendants’ arguments against responding to discovery pertaining to non-resident nurse practitioners because the arguments assumed contested facts and resolved anticipated defenses in Defendants’ favor. [doc. # 28]. Spillers also disputed Defendants’ personal jurisdiction defense. Finally, Spillers pointed out that Defendants had not set forth any timeline for their promised supplemental production. Briefing is complete; the matter is ripe.[1]
Analysis
I. Motion to Compel
a) Law
*4 Rule 26(b) provides that,
[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
The courts understand the rule to provide for broad and liberal discovery. See Schlagenhauf v. Holder, 379 U.S. 104, 114-5 (1964); Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385 (1947). Nonetheless, the scope of discovery is limited by relevance, albeit “relevance” is to be broadly construed. Wyatt v. Kaplan, 686 F.2d 276, 284 (5th Cir. 1982).
Under Rule 33, a party may serve an interrogatory on another party that relates to any matter that may be inquired into under Rule 26(b). Fed. R. Civ. P. 33(a)(2). The interrogatories must be answered by the party to whom they are directed. Fed. R. Civ. P. 33(b)(1). Furthermore, “[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).
Rule 34 of the Federal Rules of Civil Procedure provides that “a party may serve on any other party a request within the scope of Rule 26(b) ... to produce ... any designated documents or electronically stored information ... or any designated tangible things” that are within the “party's possession, custody, or control ...” Fed. R. Civ. P. 34(a)(1)(A) & (B).[2]
Answers to interrogatories, and any objections thereto, are due within 30 days after service, unless the court orders, or the parties stipulate to a different period. Fed.R.Civ.P. 33(b)(2). Similarly, a written response to a request for production, not served under Rule 26(d)(2), is due within 30 days after service, unless the court orders, or the parties stipulate to a different period. Fed. R. Civ. P. 26(b)(2)(A).
A party objecting to discovery “must state with specificity the objection and how it relates to the particular request being opposed ...” Reyes v. Red Gold, Inc. 2006 WL 2729412 (S.D. Tex. Sept. 25, 2006) (citations omitted). In other words, to escape the production requirement, a responding party must interpose a valid objection to each contested discovery request. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (citation omitted). Conclusory objections that the requested discovery is “overly broad,” “burdensome,” “oppressive,” and “irrelevant,” do not suffice. Id. Furthermore, in the absence of good cause, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, then any objections thereto are waived. In re: United States of America, 864 F.2d 1153, 1156 (5th Cir.1989); see also Fed. R. Civ. P. 33(b)4).
*5 Finally, a party seeking discovery may move for an order compelling an answer, production, or inspection if a party, inter alia, fails to answer an interrogatory or fails to produce requested documents. Fed. R. Civ. P. 37(a)(3)(B)(iii-iv). An evasive or incomplete answer or response is treated as a failure to answer or respond. Fed. R. Civ. P. 37(a)(4).
b) Discussion
From what the court may discern, the remaining issues in dispute include: 1) whether Defendants’ discovery responses for Interrogatories Nos. 1, 2, 3, 8 and 9, plus RFD Nos. 1, 2, 5, and 10 must include information for putative class members, i.e. nurse practitioners, who provided medical services outside the State of Louisiana; 2) whether Defendants must provide a full response to Interrogatory No. 5; and 3) a deadline for Defendants to disclose their promised supplemental discovery responses.
i) First Issue
Addressing these questions in turn, the court resolves the primary issue in favor of Spillers. The court emphasizes that Spillers is seeking to certify a collective action on behalf of nurse practitioner - employees who worked overtime for Defendants at any point from three years prior to the filing of suit through entry of judgment. Spillers did not limit the putative class members only to those who worked and lived in Louisiana. Rather, Spillers contends that Defendants are joint employers of Spillers and the putative collective action members. See M/Certification Memo., pgs. 1-7. The court certainly acknowledges Defendants’ argument that they did not employ the out-of-state nurse practitioners. However, this argument assumes facts and legal conclusions that have not been established. At this point of the proceedings, the court must credit Spillers’ allegations. Therefore, the requested discovery remains relevant to Spillers’ claims and, as far as the court can determine, proportional to the needs of the case.
In Swales v. KLLM Transp. Servs., L.L.C., the Fifth Circuit explained that when faced with a request for certification of a collective action under the FLSA, the
district court should identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of “employees” is “similarly situated.” And then it should authorize preliminary discovery accordingly. The amount of discovery necessary to make that determination will vary case by case, but the initial determination must be made, and as early as possible.
Swales, 835 F.3d at 441.
Here, the court already authorized the scope of preliminary discovery to include job duties, employee classifications, facilities, pay structure, work schedules, work policies and procedures, management structure, hiring structure, work contracts, and ownership and management of entities. [doc. # 13]. The requested discovery plainly falls within the foregoing categories. See M/Compel, Exhs. A, B, & E. Moreover, the scope of discovery did not exclude information pertaining to putative collective action or class members who worked out of state. In addition, Defendants have neither alleged, nor established, that compliance will prove unduly burdensome or onerous.
The court also cannot resolve Defendants’ argument that it lacks personal jurisdiction over the non-resident nurse practitioner's FLSA claims within the context of a motion to compel. Certainly, the circuit decisions cited by Defendants did not resolve the personal jurisdiction issue at the preliminary discovery stage. See, e.g., Canaday and Vallone, supra. Moreover, if either Defendant is considered “at home” in Louisiana, then the court may exercise general personal jurisdiction over claims asserted by non-residents against that party. See BNSF Ry. Co. v. Tyrrell, U.S. _____, 137 S.Ct. 1549, 1558 (2017). Likewise, if a defendant is a Louisiana-based entity, then Spillers may endeavor to establish that Louisiana law applies to the putative class members’ state law claims pursuant to Louisiana's Conflict of Laws provisions. See La. Civ. Code Art. 3515, et seq. Defendants’ argument to the contrary is misplaced in the discovery context.
ii) Second Issue
*6 The court further finds that Defendants should fully respond to Interrogatory No. 5. The requested discovery is relevant to Spillers’ claims, including her motion to certify a collective action.[3]
iii) Third Issue
Finally, the court will accord Defendants fourteen (14) days to produce the discovery that they have agreed to produce, plus the discovery ordered produced herein.
II. Fees
Rule 37 provides that if a motion to compel is granted –
or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
Here, Defendants did not agree to produce a significant amount of the disputed discovery until after Spillers filed the instant motion. Moreover, Defendants’ response to Spillers’ repeated entreaties regarding the missing discovery was, at best, uninspired. While the court recognizes that Defendants had a good faith basis for contesting the production of discovery pertaining to the non-resident nurse practitioners, the same cannot be said to excuse their initial intransigence to the remaining discovery requests.
Under these circumstances, the court finds that an award of $400.00 is warranted and appropriate to ameliorate a portion of the reasonable expenses and fees incurred by Spillers in prosecuting the instant motion.
Conclusion
For the above-assigned reasons,
IT IS ORDERED that Spillers’ motion to compel [doc. # 18] is GRANTED, as detailed in the body of this decision. Defendants shall supplement their discovery responses, in accordance herewith, within the next fourteen (14) days from the date of this order.
IT IS FURTHER ORDERED that Spillers’ request for fees [doc. # 18] is GRANTED, and that within seven (7) days from the date of this order, Defendants, Louisiana PHS, L.L.C. and Provider Health Services, L.L.C., and/or their counsel, shall remit the single sum of $400.00 to Plaintiff Nickie Spillers, via her attorney, and file proof of payment in the record of these proceedings within seven (7) days thereafter.
In Chambers, at Monroe, Louisiana, on this 16th day of November, 2021.
Footnotes
As this motion is not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the standing order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).
In the interim, Spillers filed a motion for leave to amend her complaint to join two additional parties related to Defendants [doc. # 29], plus her motion to certify a collective action [doc. # 31]. The motions are opposed. [doc. #s 37-38]. Spillers’ reply briefs are due on November 24, 2021. See Order granting extension of time [doc. # 40].
Rule 34’s definition of “possession, custody, or control,” includes more than actual possession or control of the materials; it also contemplates a party's “legal right or practical ability to obtain the materials from a nonparty to the action.” White v. State Farm Mut. Auto. Ins. Co., 2011 WL 3423388 (M.D. La. Aug. 4, 2011 (citations omitted). A party must “make a reasonable search of all sources reasonably likely to contain responsive documents.” Id. A party also is “charged with knowledge of what its agents know or what is in records available to it.” Autery v. SmithKline Beecham Corp., 2010 WL 1489968 (W.D. La. Aug. 4, 2011) (citation omitted).
To the extent that Spillers obtains discovery that may be relevant to her other pending motion(s), then she may move for leave to supplement her motion(s) once the discovery is received.