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Martinez v. Blue Star Farms, Inc.

United States District Court, W.D. Michigan, Southern Division

March 29, 2018

Ricardo Martinez, et al., Plaintiffs,
Blue Star Farms, Inc., et al., Defendants.



         This matter is before the Court on plaintiffs' petition for expenses (ECF No. 72), pursuant to Federal Rule of Civil Procedure 37(a)(5), relating to their successful motion to compel discovery (ECF No. 50). They seek $11, 805.00 in fees and $192.60 in costs. Defendants object generally to the award of expenses, as well as to the amount sought by plaintiffs. (ECF No. 80).

         Also before the Court is the issue of sanctions for defendants' violation of the Court's August 4, 2017, compulsion order (ECF No. 66). The Court conducted an evidentiary hearing on November 21, 2017 (Minutes, ECF No. 124), and found that defendants had violated that order (see Hrg. Tr. at 54-55, ECF No. 126, PageID.4367-68). The Court held in abeyance the issue of the appropriate sanction.

         For the reasons stated herein, plaintiffs' petition for expenses will be granted in part and denied in part. The Court will sanction defendants for their violations of the discovery order by awarding plaintiffs their reasonable expenses incurred in pursuing their show-cause motion, as well as their second motion to compel.

         Procedural and Factual Background

         This is an action brought by migrant and seasonal agricultural workers who harvested blueberries for defendants between 2011 and 2013. Plaintiffs filed suit on June 3, 2016. (Complaint, ECF No. 1). They allege that defendants employed approximately 140 workers each season to pick blueberries on defendants' 460-acre fields. The Court has certified this as a class action, defining the class as follows: “All migrant and seasonal agricultural workers employed at Blue Star Farms to harvest blueberries in 2011, 2012, and 2013.” (Order on Mtn Class Cert. at 2, ECF No. 148, PageID.6656).

         In the pending complaint (Second Amended Complaint), plaintiffs claim, on behalf of the class, that defendants violated the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. § 1854(a), by requiring workers to wait for the blueberry fields to dry without compensation; by failing to make, keep, and preserve accurate time-keeping records; by failing to provide workers with pay stubs showing the hours worked; and providing false or misleading information to the workers regarding their hours worked. (Count II, ECF No. 97, PageID.3014-15). Plaintiffs Martinez and Garrido claim that defendants violated the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), during the three years preceding the filing of the complaint, by failing to pay the federally-mandated minimum wage and in failing to maintain the requisite records. (Count I, PageID.3013-14). Plaintiff Garrido claims that defendants violated the AWPA by failing to follow certain labor protection standards. (Count III, PageID.3015-16).

         The original Case Management Order (CMO) set an April 1, 2017, deadline for filing both the conditional certification of a collective action under the FLSA (court-supervised notice to potential opt-in plaintiffs) and the motion for class certification regarding the AWPA claim. (ECF No. 13, PageID.71). The CMO set a September 30, 2017, deadline for completing discovery, and an October 31, 2017, deadline for filing dispositive motions. (Id., PageID.72).

         Plaintiffs filed their First Amended Complaint on October 7, 2016 (ECF No. 14), and defendants answered on October 21, 2016 (ECF No. 19). The Court declined to exercise supplemental jurisdiction over the plaintiffs' state law claim under the Michigan Minimum Wage Law, Mich. Comp. Laws § 408.381, et seq. (Count II of the amended complaint), and dismissed that claim without prejudice. (Oct. 17, 2016, Order, ECF No. 18).

         On March 5, 2017, the Court granted the parties stipulation to extend the deadline for filing plaintiffs' motion for class certification to May 31, 2017. (ECF No. 26). This extension was necessitated by defendants' request for additional time to respond to plaintiffs' discovery. (See id., PageID.146). The Court granted a second stipulated extension of that deadline on May 30, 2017. (ECF No. 47). Among other things, the parties indicated in the proposed stipulation that defendants had produced “their largest production of documents to Plaintiffs on May 1, 2017, ” and that plaintiffs were “continu[ing] to analyze that production, which include[d] a large volume of material relevant to both class certification issues and damages.” (Id., PageID.468).

         On April 1, 2017, plaintiffs filed their motion for the issuance of court-supervised FLSA notice to potential opt-in plaintiffs. (ECF No. 34). The Court denied that motion on June 23, 2017. (ECF No. 49).

         On July 10, 2017, plaintiffs filed a motion to compel discovery, seeking “complete records in response to requests for production 6 and 24, including hard copy personnel files for Plaintiffs and putative Class members[, ] and Microsoft Excel spreadsheets with time and pay information.” (ECF No. 50, PageID.482). Document request 6 sought “[c]omplete records and files relating to each Plaintiff and Class member including but not limited to” the following:

(a) scale receipts and other records of piece rate units;
(b) time cards and any other time records;
(c) pay documents including paystubs, paychecks, and electronic pay records;
(d) other records and ESI that show the hours worked, basis for payment of wages, and/or gross and net wages paid;
(e) any other record of amounts paid to each Plaintiff and Class member; and
(f) employment contracts.

(Pltfs First Req. Prod. Docs, Req. No. 6, ECF No. 51-1, PageID.493-94). The request noted that it was limited to the “Class Period.” (Id., PageID.494). Document request 24 sought “[a]ll payroll records and pay stubs made, kept, and preserved in accordance with 29 U.S.C. § 1821(d)(1) and (2) [the AWPA pay-related recordkeeping provisions] regarding each Plaintiff and Class member, during or related to the Class Period.” (Id. Req. No. 24, ECF No. 51-1, PageID.496). The “Class Period” for each of these document requests was defined as “the 2011 through the 2016 blueberry seasons.” (Id., Definitions, PageID.491).

         Plaintiffs noted that they had served their discovery requests on January 13, 2017, and that defendants requested several extensions of time to produce the responsive documents and data. (Pltfs Br. at 2, ECF No. 51, PageID.484). Defendants had begun production of the responsive documents on Monday, March 13, 2017, and defense counsel promised production of “responsive documents related to FLSA conditional certification by the end of [that] week, including time and pay records.” (Brion Doyle Email to Marni Willenson, March 13, 2017, ECF No. 51-2, PageID.500). On March 20, 2017, defendants served written responses to plaintiffs' discovery “but did not produce employee personnel files, pay stubs, or complete payroll data.” (Pltfs Br. at 2, ECF No. 51, PageID.484).

         Plaintiffs noted that defendants “[had] asserted no meaningful objection to production and, to the contrary, [had] promised production of this material - repeatedly.” (Id. at 3, PageID.485). Plaintiffs' counsel noted that she had repeated plaintiffs' demand for the responsive documents on June 27, 2017, “warning that Plaintiffs would file a motion to compel if they were not received by the following business day.” (Id.). On July 5, 2017, defense counsel advised plaintiffs' counsel that defendants had sent him “copies of the personnel file and flash drive, ” promising to “get them out” to plaintiffs' counsel. (Brion Doyle Email to Marni Willenson, July 5, 2017, ECF No. 51-4, PageID.510). Defense counsel advised plaintiffs' counsel on July 10, 2017, that he was sending that day copies of the personnel files and the flash drive that were promised July 5. (Brion Doyle Email to Marni Willenson, July 10, 2017, ECF No. 51-5, PageID.512). Nevertheless, plaintiffs filed the motion to compel, noting that plaintiffs had been waiting almost six months for defendants to serve these responsive files, and that, “[a]lthough counsel for Defendants has stated that he would be ‘mailing' them, such promises have been made to Plaintiffs repeatedly in the past and the documents never received.” (Pltfs Br. at 3, ECF No. 51, PageID.485).

         Plaintiffs also cited to the June 26, 2017, deposition testimony of Karen King, who was responsible for defendants' bookkeeping and payroll. (Id. at 2, PageID.484). Ms. King testified that she maintained Microsoft Excel files of employee hours, production, and payroll information. (Karen King Dep. at 11, ECF No. 51-3, PageID.504). She also testified that she had already provided hard copies of the 2013 employees' personnel files to defendant Tony Marr, the President of Blue Star Farms, for production to plaintiffs, and that it would take about fifteen to twenty minutes of her time to copy these files to a flash drive. (Id. at 62, 101; PageID.507-08).

         Despite the various factual assertions and arguments in plaintiff's motion to compel, defendants filed a two-page response, arguing simply that the motion should be denied because plaintiffs' counsel had received all the responsive documents and information by July 11, 2017. (ECF No. 55, PageID.520-21; Defs Corrected Resp., ECF No. 56, PageID.522-23). Defendants asserted that “[t]he only potential open issue is a follow-up inquiry from Plaintiffs' counsel regarding the existence of additional Excel spreadsheets.” (Defs Corrected Resp. at 2, ECF No. 56, PageID.523).

         With leave of Court, plaintiffs filed a reply brief. (ECF No. 63). Plaintiffs asserted that their motion to compel had not been mooted by defendants' late production of documents. (Id. at 1-2, PageID.1318-19). Plaintiffs pointed out that defendants still had not produced personnel files or pay stubs for 2011 and 2012; that, with the exception of 2013, defendants had not produced Excel payroll files for the entire class period (2011 through 2016); and that they had not confirmed that their production was complete. (Id. at 5-6, PageID.1322-23).

         On August 4, 2017, the Court conducted a hearing on plaintiffs' motion to compel. (Minutes, ECF No. 65). During the hearing, plaintiffs' counsel advised the Court that, because the class-certification motion was limited to the years 2011 through 2013, they no longer needed records for years 2014 through 2016. (Hrg Tr. at 5, ECF No. 73, PageID.1392). Counsel also advised the Court that defendants had not provided any records for years 2011 and 2012, and that defendants had not provided all the Excel data for 2013. (Id. at 5-6, PageID.1392-93).

         During the hearing, defense counsel asserted that, because plaintiffs' motion to compel cited to Ms. King's deposition testimony concerning 2013 records, the motion should be construed as limited to records of that year. (Id. at 10-15, PageID.1397-1402). Counsel also asserted that the parties' negotiations regarding a potential modification of the class period “[had] guided [defendants] towards focusing on 2013.” (Id. at 17, PageID.1404). Counsel offered nothing to suggest that defendants had produced any responsive documents for years 2011 and 2012, and he conceded that defendants were still unable to confirm whether they had produced all responsive documents from 2013. (Id. at 19, PageID.1406). Counsel was unable to advise the Court whether defendants had made any timely objections to plaintiffs' discovery requests. (Id. at 11, PageID.1398).

         Based on the lack of any evidence of a timely objection, the Court found that defendants had waived any putative objection to the discovery requests at issue (document requests 6 and 24). (Hrg Tr. at 11-12, 17-18; ECF No. 73; PageID.1398-99, 1404-05). Finding no basis to limit plaintiffs' discovery requests - or their motion to compel - to 2013, the Court granted plaintiffs' motion in its entirety, and it ordered defendants to produce all documents responsive to requests 6 and 24 for the years 2011 through 2013. (Id. at 19, PageID.1406; Aug. 4, 2017, Order, ECF No. 66).

         With respect to whether the Court should award costs for the motion, defense counsel discussed the parties' cooperation in exchanging discovery. (Hrg Tr. at 21-23, ECF No. 73, PageID.1408-10). But when he was questioned specifically about which exception to Rule 37(a)(5)'s mandate to award costs defendants were relying upon, counsel responded simply: “[s]ubstantial justification.” (Hrg Tr. at 26, PageID.1413). The Court then ruled that costs would be awarded, noting:

[D]efendants have provided the Court with nothing in terms of when they filed their response or served their response to the document requests, whether there were any objections asserted, timely or otherwise. That really leaves the Court with no ability to do anything but find there's a lack of substantial justification here.
Frankly, I would be hard-pressed to find another situation where defendants' conduct with respect to their discovery obligations has been more lackadaisical. I appreciate the fact that counsel worked together to try to work things out, and certainly in cases like this agreements are made orally or in writing, and that's fine and they should be ...

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