Case 1:20-cv-11584-PBS Document 27 Filed 05/08/19 Page 1 of 8
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`IN THE UNITED STATES DISTRICT
`FOR THE WESTERN DISTRICT OF MISSOURI
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`ROCKY L. HAWORTH, on behalf of
`himself and all other similarly situated
`persons,
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`vs.
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`NEW PRIME, INC.
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`Plaintiffs,
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`Defendant.
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`Case No: 19-3025-CV-S-RK
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`JOINT PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN
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`Pursuant to Federal Rule of Civil Procedure Rules 16 and 26 and Local Rules 16.1(d),
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`16.1(f), 26.1(c) and 26.1(d), the parties hereby submit the following joint proposed scheduling
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`order and discovery plan in the above-captioned case:
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`1.
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`Initial Rule 26 Disclosures. On or before May 15, 2019, the parties will exchange
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`the information required by Rule 26(a)(1).
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`2.
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`Deadlines Relating to the Section 216(b) Collective Action and Rule 23 Class
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`Action. Plaintiffs allege that Defendant’s compensation practices violate the Fair Labor Standards
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`Act (“FLSA”), as well as Missouri state law, in that Defendant failed to pay Plaintiff Haworth and
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`other “B” seat drivers for all wages owed. Defendant denies Plaintiffs’ allegations. Plaintiffs’
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`claims invoke the procedural mechanisms of a Section 216(b) collective action under the FLSA,
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`and Rule 23 class action procedures. Until it is determined whether Plaintiffs' FLSA action should
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`be conditionally designated as a collective action and whether to allow notice and an opportunity
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`to other allegedly similarly situated employees to “opt-in,” as well as whether Plaintiffs' Rule 23
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`allegations should be certified for class action treatment, the parties will not know the full extent
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`of the discovery needed in this case. Consequently, and as set forth below, the parties agree that
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`this Court’s scheduling order should reflect the procedures related to seeking a determination on
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`whether this action should be prosecuted as an FLSA collective and Rule 23 class action.
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`a.
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`Plaintiffs’ motion for conditional certification of a collective action under
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`the FLSA will be filed on or before August 15, 2019. Defendant’s response in opposition will be
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`due twenty-one (21) days thereafter. Plaintiffs’ reply brief in support of their collective action
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`motion will be due fourteen (14) days thereafter.
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`b.
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`Plaintiffs’ motion for certification to proceed as class action under Rule 23
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`will be filed on or before one hundred and twenty (120) days following the Court’s ruling on
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`Plaintiffs’ motion for conditional certification of a collective action under the FLSA. Defendant’s
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`response in opposition will be due twenty-one days thereafter. Plaintiffs’ reply brief in support
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`of any class action motion will be due fourteen days thereafter.
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`3.
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`Plan for Alternative Dispute Resolution (“ADR”). This case has been included
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`in the Western District of Missouri’s Mediation and Assessment Program, and the parties have
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`designated John Phillips to mediate this matter. The parties will be scheduling a mediation to
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`occur before July 8, 2019.
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`4.
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`Discovery Plan. The parties jointly propose to the Court the following discovery
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`plan:
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`a.
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`It is hoped and anticipated that, in an effort to decrease litigation costs and
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`expenses, the parties will voluntarily agree to exchange relevant information and documents
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`necessary to conduct mediation. Plaintiffs have also served formal discovery geared toward the
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`conditional certification question which may or may not be necessary prior to the mediation
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`(depending on whether the parties reach an agreement as to informal discovery as noted above).
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`In the event mediation is unsuccessful, the parties will resume formal discovery primarily focused
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`on certification questions.
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`b.
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`Close of Discovery Deadline: The parties propose that discovery related to
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`Plaintiff’s individual claims be completed on or before January 15, 2020. As reflected above, until
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`the Court rules on conditional and class action certification and any notice period closes (if
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`certification is granted), the parties believe it is premature to establish a deadline for the completion
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`of class-wide or collective-wide discovery. The parties will reconvene and jointly submit a
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`proposed amended scheduling order providing a deadline for the close of discovery within two
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`weeks of either the close of the Rule 23 notice period (if Rule 23 certification is granted) or the
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`Court’s order(s) denying Rule 23 certification, whichever is later.
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`c.
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`Depositions: The parties do not currently anticipate a need to request
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`additional depositions beyond those provided by Fed. R. Civ. P. 30(a)(2)(A). After the Court rules
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`on Plaintiffs’ motions for conditional collective and class action certification, the parties agree to
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`revisit this limitation, if necessary.
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`d. Written Discovery: For this initial phase of discovery, the parties agree to
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`a limit of 25 interrogatories for each party, including all discrete subparts. The parties do not waive,
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`and specifically reserve, the right to object, if appropriate, to any discovery served upon any other
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`party or opt-in plaintiff. The parties understand and agree that, under the Federal Rules of Civil
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`Procedure, they may object to, or seek protective orders regarding, written discovery requests.
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`e.
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`ESI:
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`i.
`Paper Documents and Emails: The parties agree that all paper
`documents and emails produced by a party shall initially be produced with Bates
`stamps in pdf format. In the event a party wishes to discover ESI associated with
`such a document, the party will notify the other party in writing and identify the
`specific document(s) by Bates-number(s). The party requesting ESI will also
`identify the nature of ESI it is seeking and the format and media in which it would
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`like the ESI produced. The parties will then confer in good faith regarding the
`availability of the requested ESI and any expenses associated with the production
`of such information. If a party believes there is ESI that is relevant that has not
`been produced, the parties will confer in good faith regarding the existence of such
`information and the expenses associated with confirming the existence or
`nonexistence of such information.
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`ii.
`Databases/Electronic Records: The parties agree that Defendant
`will attempt to make discovery requested from electronic databases (including, for
`example, payroll data, trip logs, e-logs, and schedules entry systems and security
`information, badge swipe or thumb scanner data, timekeeping and payroll
`information) available in Excel or another native format. If this format is not
`available or would require significant expense, the parties will then confer in good
`faith regarding the availability of the requested ESI and any expenses associated
`with the production of such information. By setting forth and agreeing to these
`procedures, neither party waives any right to object to specific data requests.
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`Expert Disclosures: Although they reserve all rights, at this juncture, the
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`f.
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`parties do not anticipate a specific need for expert witness disclosures in relation to FLSA
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`certification briefing. In the event Plaintiffs or Defendant believe expert witnesses are needed in
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`relation to the conditional certification briefing, such experts will be disclosed on or before July
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`15, 2019. Any rebuttal experts would be disclosed on or before August 8, 2019. Plaintiffs shall
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`disclose any experts used for purposes of a Rule 23 certification motion on or before sixty (60)
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`days following the Court’s ruling on Plaintiffs’ motion for conditional certification of a collective
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`action under the FLSA. Defendant shall disclose any experts used for purposes of a response to
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`the Rule 23 class certification on or before thirty (30) days following Plaintiffs’ designation of
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`experts used for purposes of a Rule 23 certification motion. The parties further agree that the
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`parties should reconvene and jointly submit a proposed amended scheduling order that provides
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`deadlines for the disclosure of Plaintiffs’ merits experts (including any rebuttal experts) and
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`Defendant’s merits experts (including any rebuttal experts) within two weeks of either the close of
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`the Rule 23 notice period (if Rule 23 certification is granted) or the Court’s order(s) denying Rule
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`23 certification, whichever is later.
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`g.
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`Discovery Motions: As outlined above, the parties believe it is premature
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`to establish a deadline for the close of discovery; however, the parties agree that discovery motions
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`should be brought as soon as practicable following the failure of all efforts to resolve discovery
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`disputes between the parties.
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`h.
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`Daubert and Dispositive Motions: Because the parties do not currently
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`anticipate a specific need for experts, the parties believe it is premature to establish a deadline for
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`Daubert and Dispositive motions. The parties will reconvene and jointly submit a proposed
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`amended scheduling order providing a deadline for Daubert and Dispositive motions within two
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`weeks of either the close of the Rule 23 notice period (if Rule 23 certification is granted) or the
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`Court’s order(s) denying Rule 23 certification, whichever is later. If, before that time, either party
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`does designate an expert, the parties may then file Daubert motions—for example, if Plaintiffs
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`elect to designate an expert in connection with the conditional certification motion, the parties
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`anticipate that any Daubert motion related to that expert would be filed alongside Defendant’s
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`opposition to conditional certification.
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`i.
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`Final Certification Motion and Decertification Motion: The parties
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`believe it is premature to establish a deadline for the filing of Plaintiffs’ final certification motion
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`or Defendant’s decertification motion, if any. The parties will reconvene and jointly submit a
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`proposed amended scheduling order providing a deadline for these motions, if any, Plaintiffs’
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`opposition, and Defendant’s reply, if any, within two weeks of the Court’s ruling on the motion
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`for conditional certification.
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`j.
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`Supplementation from the parties shall be due as required under Fed. R.
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`Civ. P. 26(e).
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`5.
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`Scheduling Order. The parties jointly propose to the Court the following
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`scheduling order:
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`a.
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`Joinder of Additional Parties: The parties do not currently anticipate that
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`there will be a need to join additional parties, except to the extent contemplated by the FLSA and
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`Rule 23 certification procedures. Accordingly, the parties believe it is premature to identify a
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`deadline by which additional parties should be joined. The parties will reconvene and jointly
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`submit a proposed amended scheduling order providing a date for the deadline to join additional
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`parties within two weeks of either the close of the Rule 23 notice period (if Rule 23 certification
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`is granted) or the Court’s order(s) denying Rule 23 certification, whichever is later.
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`b.
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`Amending the Pleadings: Due to the fact that this is a purported class and
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`collective action, at this time the parties believe it is premature to identify a deadline to amend the
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`pleadings. The parties will reconvene and jointly submit a proposed amended scheduling order
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`providing a date for the deadline to amend the pleadings within two weeks of either the close of
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`the Rule 23 notice period (if Rule 23 certification is granted) or the Court’s order(s) denying Rule
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`23 certification, whichever is later.
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`c.
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`Pretrial Conference: Due to the fact that this is a purported class and
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`collective action, at this time, the parties believe it is premature to identify a date by which a
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`pretrial conference should occur. The parties will reconvene and jointly submit a proposed
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`amended scheduling order providing a date for the pretrial conference within two weeks of either
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`the close of the Rule 23 notice period (if Rule 23 certification is granted) or the Court’s order(s)
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`denying Rule 23 certification, whichever is later.
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`d. Witness/Exhibit Lists: At this time, the parties believe it is premature to
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`identify a date by which final lists of witnesses and exhibits under Fed. R. Civ. P. 26(a)(3) should
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`Case 1:20-cv-11584-PBS Document 27 Filed 05/08/19 Page 7 of 8
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`be due. The parties will reconvene and jointly submit a proposed amended scheduling order
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`providing a date for the exchange of final lists of witnesses and exhibits within two weeks of either
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`the close of the Rule 23 notice period (if Rule 23 certification is granted) or the Court’s order(s)
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`denying Rule 23 certification, whichever is later.
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`e.
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`Trial Date & Estimated Length of Trial: At this time, the parties believe
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`it is premature to identify a trial date. Additionally, until it is determined whether this case will
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`proceed as a class, collective, multiple plaintiff, or individual plaintiff action, it is premature to
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`identify the amount of time the trial is expected to take. The parties will reconvene and jointly
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`submit a proposed amended scheduling order providing a date for trial and the length of time trial
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`is expected to take within two weeks of either the close of the Rule 23 notice period (if Rule 23
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`certification is granted) or the Court’s order(s) denying Rule 23 certification, whichever is later.
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`6.
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`Protective Order: The parties anticipate jointly requesting the Court to enter a
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`protective order to govern the documents, including personnel files and financial information, in
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`this case. The parties will submit a joint proposed protective order by May 15, 2019.
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`Date: May 8, 2019
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`Respectfully submitted,
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`CRIMMINS LAW FIRM LLC
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`/s/ Matthew R. Crimmins
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`Virginia Stevens Crimmins, MO #53139
`Matthew R. Crimmins, MO #53138
`214 S. Spring Street
`Independence, Missouri 64050
`(816) 974-7220 Telephone
`(855) 974-7020 Facsimile
`m.crimmins@crimminslawfirm.com
`v.crimmins@crimminslawfirm.com
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`GIBSON DUNN
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`_/s/ Amanda C. Machin_______________
`Amanda C. Machin
`1050 Connecticut Avenue, NW, Suite 300
`Washington, DC 20036
`(202) 887-3705 Telephone
`(202) 530-4244 Facsimile
`amachin@gibsondunn.com
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`Michele L Maryott
`GIBSON DUNN
`3161 Michelson Drive
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`Case 1:20-cv-11584-PBS Document 27 Filed 05/08/19 Page 8 of 8
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`HODES LAW FIRM, LLC
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`/s/ Garrett M. Hodes
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`Garrett M. Hodes, MO #50221
`900 Westport Road, 2nd Floor
`Kansas City, Missouri 64111
`(816) 931-1718 Telephone
`(816) 994-6276 Facsimile
`garrett@hodeslawfirm.com
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`COUNSEL FOR PLAINTIFFS
`AND THE PUTATIVE CLASS
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`Irvine, CA 92612
`(949) 451-3945 Telephone
`(949) 475-4668 Facsimile
`mmaryott@gibsondunn.com
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`Kathleen M. Nemechek
`BERKOWITZ OLIVER, LLP
`2600 Grand Boulevard, Suite 1200
`Kansas City, MO 64108
`(816) 561-7007 Telephone
`(816) 561-1888 Facsimile
`knemechek@berkowitzoliver.com
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`COUNSEL FOR DEFENDANT
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