Boice v. M+W U.S., Inc.

• Decision Date: 11 September 2015
• Docket Number: No. 1:14–CV–0505 (GTS/CFH).,1:14–CV–0505 (GTS/CFH).
• Citation: 130 F.Supp.3d 677
• Parties: Vincent E. BOICE, Individually and on behalf of all others similarly situated, Plaintiff, v. M+W U.S., INC.; Total Facility Solutions, Inc.; and M+W Zander NY Architects, P.C., Defendants.
• Court: U.S. District Court — Northern District of New York

130 F.Supp.3d 677

Vincent E. BOICE, Individually and on behalf of all others similarly situated, Plaintiff,

v.M+W U.S., INC.; Total Facility Solutions, Inc.; and M+W Zander NY Architects, P.C., Defendants.

No. 1:14–CV–0505 (GTS/CFH).

United States District Court, N.D. New York.

Signed Sept. 11, 2015.

Cooper Erving & Savage LLP, Carlo A.C. de Oliveira, Esq., Phillip G. Steck, Esq., of Counsel, Albany, NY, for Plaintiff.

Jackson Lewis, P.C., Peter M. Torncello, Esq., Stephanie L. Goutos, Esq., William J. Anthony, Esq., of Counsel, Albany, NY, for Defendants.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this wage-and-hour action filed by Vincent E. Boice ("Plaintiff") on behalf of himself and all others similarly situated against the three above-captioned entities ("Defendants") under the Fair Labor Standards Act ("FLSA"), are the following: (1) United States Magistrate Judge Christian F. Hummel's Report–Recommendation recommending that (a) Plaintiff's motion to compel discovery be granted in part (such that Defendants shall disclose to Plaintiff the full names and last-known addresses of all structural, architectural, mechanical, and electrical designers employed by Defendants in the previous three years at all of their locations), (b) Plaintiff's motion to conditionally certify this matter as a collective action pursuant to the FLSA be denied without prejudice and with leave to renew if and when the completion of additional limited discovery yields facts and evidence that render such certification appropriate, and (c) Defendants' motion to strike as inadmissible seven paragraphs of the declaration of Plaintiff's counsel ("de Oliveria declaration"), submitted in support of Plaintiff's motion for conditional certification, be denied; (2) Defendants' Objections to that portion of the Report–Recommendation granting in part Plaintiff's motion to compel discovery; and (3) Plaintiff's opposition to Defendants' Objections. (Dkt. Nos. 44, 49, 51.) For the reasons set forth below, Magistrate Judge Hummel's Report–Recommendation is accepted and adopted in its entirety; Defendants' motion to strike the de Oliveria declaration is denied; Plaintiff's motion for conditional certification is denied without prejudice and with leave to renew if and when the completion of additional limited discovery yields facts and evidence that render such certification appropriate; and Plaintiff's motion to compel discovery is granted in part, as recommended by Magistrate Judge Hummel.

I. RELEVANT BACKGROUND

Because this Decision and Order is intended primarily for the review of the parties, and neither party has objected to Part I of Magistrate Judge Hummel's Report–Recommendation, which sets forth the procedural background of this action, the Court incorporates by reference that part of the Report–Recommendation, which is not clearly erroneous. (Dkt. No. 44, at Part I.)

A. Magistrate Judge Hummel's Report–Recommendation

Generally, in his Report–Recommendation, Judge Hummel made the following recommendations: (1) that Defendants' motion to strike as inadmissible seven paragraphs of the de Oliveira declaration (which was submitted in support of Plaintiff's motion for conditional certification) be denied, because (a) evidence submitted for the purpose of conditional certification need not be admissible, and (b) the Court possesses the power and ability to determine the weight to assign to declarations, including the de Oliveria's declaration; (2) that Plaintiff's motion to conditionally certify this matter as a collective action be denied, because it failed to demonstrate that Plaintiff and the potential class members were subject to a common unlawful policy or practice, but that such denial be without prejudice and with leave to renew if and when the completion of additional limited discovery yields facts and evidence that render such certification appropriate; and (3) that Plaintiff's motion to compel discovery be denied except that portion of the motion that requests the disclosure of the full names and last-known addresses of all structural, architectural, mechanical, and electrical designers employed by Defendants in the previous three years at all of their locations, because (a) whether to grant pre-certification discovery is entirely within the trial court's discretion, (b) here, pre-certification discovery of employee contact information will either enable Plaintiff to make a fuller showing at the conditional certification stage, or reveal that the collective action is not suitable for certification, and (c) Plaintiff has demonstrated a "compelling need" for certain pre-certification discovery (specifically, the potential plaintiffs' contact information), which need outweighs the minimal privacy concerns resulting from the release of the potential plaintiffs' contact information. (Dkt. No. 44, at Part II.)

B. Defendants' Objections to the Report–Recommendation

Generally, in their Objections, Defendants take issue with only one portion of the Report–Recommendation: that portion of the Report–Recommendation which grants in part Plaintiff's motion to compel discovery. (Dkt. No. 49.) More specifically, in their Objections, Defendants argue as follows: (1) to the extent that "[t]he recommendation orders Defendants to turn over to Plaintiff the [discovery in question]," the recommendation is subject to a clear-error standard of review, which it fails to meet; (2) the recommendation fails to meet this standard because, by filing his motion for conditional certification before he received a ruling on his motion to compel discovery, Plaintiff abandoned an argument that he needed the information sought in his motion to compel discovery in order to file a motion for conditional certification;¹ (3) in addition, the recommendation fails to meet this standard because requiring Defendants to provide contact information for the entire putative class nationwide without any finding by the Court that the potential class members are similarly situated (and indeed with a Report–Recommendation having found that Plaintiff has failed to demonstrate that he and the potential class members were subject to a common unlawful policy or practice) would (a) be unfairly prejudicial to Defendants, (b) allow for an inappropriate use of the judicial process, and (c) be an unnecessary departure from established case law governing the matter and essentially eliminate the need for any certification motion or two-step determination by the Court. (Id. )

C. Plaintiff's Opposition to Defendants' Objections

Generally, in his opposition to Defendants' Objections, Plaintiff opposes Defendants' request that the Court reject that portion of Magistrate Judge Hummel's Report–Recommendation which grants in part Plaintiff's motion to compel discovery. (Dkt. No. 51.) More specifically, in his opposition, Plaintiff argues as follows: (1) it is not true that by filing his motion for conditional certification Plaintiff abandoned an argument that he needed the information sought in his motion to compel discovery, because the denial of a motion for conditional certification under 29 U.S.C. § 216(b) does not prevent a plaintiff from obtaining discovery of information to which he is entitled under Fed.R.Civ.P. 26(b)(1) ; and (2) according to the customary practice in the Second Circuit, Plaintiff is entitled to pre-certification discovery of certain limited information in wage-and-hour class actions in order to define the proposed class. (Id. )

In addition, in his "opposition," Plaintiff seeks the following three forms of relief: (1) an Order directing Defendants to provide the names and last-known addresses of "all putative class members nationwide"; (2) an Order equitably tolling the limitations period in this action until the time this Court rules on Plaintiff's renewed motion for conditional certification; and (3) an Order awarding Plaintiff attorneys' fees incurred in responding to Defendants' objections based on Defendants' "obstructionist and meritless conduct." (Id. )

II. GOVERNING LEGAL STANDARDS

A. Legal Standard Governing Review of a Magistrate Judge's Report–Recommendation

Generally, when a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2) ; 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).² When performing such a de novo review, "[t]he judge may ... receive further evidence...." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.³ Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04–CV–0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) ("[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312–13 (W.D.N.Y.2009) ("In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks omitted).

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3...