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Blair v. Transam Trucking, Inc.

United States District Court, D. Kansas

November 3, 2017

LARRY BLAIR and CHARLIE DAVIS, On Behalf of Themselves and All Other Persons Similarly Situated, Plaintiffs,
v.
TRANSAM TRUCKING, INC., Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         The present action was filed in 2009. Plaintiffs assert claims against Defendant TransAm for alleged violations of the Fair Labor Standards Act (“FLSA”) and the Kansas Wage Payment Act (“KWPA”). This motion relates to three recent orders-Docs. 429, 430, and 431-that the Magistrate Judge entered with respect to certain supplemental disclosures made by Plaintiffs in September 2016 and April 2017. TransAm moves under Rule 72(a) for review of those orders. For the following reasons, the Court denies TransAm's Rule 72(a) Motion to Review Orders of the Magistrate Judge (Doc. 438).

         I. Factual and Procedural Background

         Plaintiffs filed their initial complaint on August 21, 2009. On September 12, 2012, after a stay of the matter pending a Kansas state court ruling, the parties exchanged their respective initial Rule 26 disclosures. In their initial disclosures, Plaintiffs identified two drivers-Larry Blair and Charlie Davis-as having knowledge of the Plaintiffs' claims in this action.

         Plaintiffs filed the Second Amended Complaint on April 1, 2014. The Court certified Plaintiffs' KWPA class and conditionally certified the Plaintiffs' collective claim under the FLSA on August 20, 2015.

         On September 18, 2015, Magistrate Judge Gale entered a Supplemental Scheduling Order (“SSO”) that, among other things, provided for two discovery periods. All non-expert discovery was ordered to be commenced or served in time to be completed by September 16, 2016. All other discovery was to be commenced or served in time to be completed by January 16, 2017.

         The SSO noted that the parties had previously served their initial disclosures with regard to witnesses, exhibits, damage computations, and any applicable insurance coverage, as required by Rule 26(a)(1). The SSO mandated that supplementations of those disclosures under Rule 26(e) “must be served at such times and under such circumstances as required by that rule.” In addition, such supplemental disclosures were ordered to be served 60 days before the deadline for completion of all non-expert discovery. The SSO then explained:

The supplemental disclosures served 60 days before the deadline for completion of all discovery must identify all witnesses and exhibits that probably or even might be used at trial. The opposing party and counsel should be placed in a realistic position to make judgments about whether to take a particular deposition or pursue follow-up “written” discovery before the time allowed for discovery expires. Should anything be included in the final disclosures under Fed.R.Civ.P. 26(a)(3) that has not previously appeared in the initial Rule 26(a)(1) disclosures or a timely Rule 26(e) supplement thereto, the witness or exhibit probably will be excluded from offering any testimony under Fed.R.Civ.P. 37(c)(1).

         According to the SSO, July 18, 2016 was the initial deadline for filing the supplemental disclosures. TransAm filed supplemental disclosures prior to the deadline, but Plaintiffs did not. On August 15, 2016, Plaintiffs filed a motion to extend the deadline. The Magistrate Judge granted the motion and issued the Second Supplemental Scheduling Order (“Second SSO”) (Doc. 320).[1] Under the Second SSO, non-expert discovery was to be completed by November 16, 2016, and all discovery was to be completed by March 17, 2017. By extending the nonexpert discovery deadline, the Second SSO created a new supplemental disclosure deadline of September 16, 2016.

         Plaintiffs timely served their first set of supplemental disclosures (the “September Disclosures”) on September 16. Section A.3 of the September Disclosures identifies the opt-in plaintiffs as follows:

All drivers who have opted into the lawsuit, the majority of whom are listed in the attached Exh. A. These opt-in Plaintiffs have information regarding their claims as asserted in this lawsuit, including but not limited to the employment relationship between leased drivers and Defendant, and have information regarding the policies and procedures adopted by Defendant in paying leased drivers. Each opt-in Plaintiff further has information regarding his or her hours worked and the failure of defendant to pay him or her, and others similarly situated, minimum wage for multiple hours and wage periods. These opt-in Plaintiffs may be contacted through counsel.[2]

         TransAm filed a Motion to Strike Plaintiffs' Supplemental Rule 26 Disclosures (Doc. 340) on October 6, 2016. In the motion, TransAm identified multiple categories of witnesses and documents enumerated in Plaintiffs' supplemental disclosures. The first category listed pertained to Section A.3 of Plaintiffs' September disclosures. The category of witnesses identified in A.3 was described as “All drivers who have opted into the lawsuit, the majority of whom are listed in the attached Exh. A.” TransAm also objected to other categories, including “all individuals identified in depositions, ” “all driver managers, ” “all dispatchers, ” “all planners, ” “all individuals responsible for training, ” “all individuals employed, ” and “all individuals identified in discovery responses.” TransAm argued that the general descriptive nature of these categories “does nothing to assist TransAm or its counsel to make realistic judgments about whether to take depositions of these individuals or to pursue follow-up written discovery with respect to these individuals.”[3] According to TransAm, these categories did not comply with the Second SSO and should be stricken.

         The Magistrate Judge concluded that Plaintiffs' tactics, “including ‘catchall' categories to encompass witnesses not yet identified, ” to be inappropriate.[4] Accordingly, the Magistrate Judge granted TransAm's motion to strike.

         On February 8, 2017, Plaintiffs filed a motion titled “Request for Clarification of and/or Objections to the Court's Order on Motion to Strike Supplemental Disclosures” (Doc. 407). Plaintiffs sought clarification on the issue of whether the Magistrate Judge had struck the “all drivers” description from A.3 of their September Disclosures or whether the Magistrate Judge had, instead, struck the Plaintiff's designation of the entire list of opt-in plaintiffs as potential witnesses in this matter.

         Before the Magistrate Judge had ruled on Plaintiffs' objection to the order of the Magistrate Judge, Plaintiffs served their Final Supplemental Rule 26 Disclosures (“April Disclosures”) on April 6, 2017. In addition to the specific individuals previously disclosed, the April Disclosures identified all “plaintiffs who have opted into this lawsuit.” The Disclosures then listed each opt-in plaintiff by name and driver code. At the end of the list, the April Disclosures provided:

These opt-in Plaintiffs have information regarding their claims as asserted in this lawsuit, including but not limited to the employment relationship between leased drivers and Defendant, and have information regarding the policies and procedures adopted by Defendant in paying leased drivers. Each opt-in Plaintiff further has information regarding his or her hours worked and the failure of Defendant to pay him or her, and others similarly situated, minimum wage for multiple hours and wage periods. These opt-in Plaintiffs may be contacted through counsel.

         Sections A.17 and A.18 of the April Disclosures also included two new fact witnesses, David Hysom and Carol George. On April 19, 2017, TransAm filed a Motion to Strike the April Disclosures for being tardy, for including the previously-stricken group of “all drivers, ” and for including Hysom and George as new fact witnesses. In their opposition, Plaintiffs conceded that their “inclusion of [the opt-in drivers in Section A.3 of the April Disclosures] was contingent on the Court's decision with respect to the Request for Clarification.”[5]

         The Magistrate Judge ruled on the request for clarification on June 20, 2017. Judge Gale's first text entry (Doc. 429) provides: “Plaintiff is correct that the Court's January 25, 2017 Order striking a listing of ‘all drivers' was only intended to strike any attempted ‘catch all' listing of such drivers as have not individually opted-in as party plaintiffs or were not otherwise individually identified by plaintiffs in their Rule 26 disclosures.” The second text entry (Doc. 430) granted Plaintiffs' objection to order of the Magistrate Judge.

         The following day, on June 21, the Magistrate Judge entered an order denying, without prejudice, TransAm's Motion to Strike the April Disclosures, and indicating that the denial of the Motion to Strike was “without prejudice subject to Defendant requesting other trial-related remedies from the District Court.”

         II. ...


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