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Martinez v. Mendoza

United States District Court, E.D. North Carolina, Western Division

October 29, 2019

PEDRO RODRIGUEZ MARTINEZ, et al., Plaintiffs,
v.
CESAR MENDOZA, et al., Defendants. ALPHA TECHNOLOGIES SERVICES, INC., Cross-Claimant,
v.
SOLAR GUYS, INC., Cross-Defendant.

          ORDER

          ROBERT B. JONES, JR., UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Plaintiffs' motion to compel discovery responses from Solar Guys, Inc. ("SGI") and Jorge Ramos (collectively, "Defendants") [DE-154], and SGI's motion for protective order [DE-165]. Responses have been filed [DE-163, -171], and the issues are ripe for decision. For the reasons that follow, the motion to compel is allowed in part and denied in part, and the motion for protective order is denied as moot.

         I. BACKGROUND

         Plaintiffs were employed as laborers in the building of a solar farm in Hope Mills, North Carolina, known as Innovative Solar 46 or "IS46," and allege class and collective action claims against their employers, the general contractor and subcontractors constructing the solar farm. 2d Am. Compl. [DE-81] ¶ 1. Jorge Ramos, the president and director of SGI, entered into a contract with Alpha Technologies Incorporated ("ATS"), the general contractor, for SGI and Ramos to provide labor for the construction of IS46. Id. ¶¶ 24, 35-36. SGI and Ramos, in turn, subcontracted with defendants Cesar Mendoza and his company East Carolina Commercial Services ("ECCS"), as well as non-parties, Martinez Harvesting, Segura Land Maintenance, A&A Contractors, LLC, and MGKE Construction, LLC, to provide labor. Id. ¶¶ 42, 50. Plaintiffs allege they were misclassified as independent contractors, not paid properly for overtime, subjected to unlawful wage deductions, required to purchase their own personal protective equipment ("PPE"), and not paid all wages owed and due. Id. ¶ 1. Plaintiffs asserts claims for violation of state and federal wage and hour laws, specifically the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq., and the North Carolina Wage and Hour Act ("NCWHA"), N.C. Gen. Stat. § 95-25.1 et seq., and seek to bring a collective action under 29 U.S.C. § 216(b) and a class action under Fed.R.Civ.P. 23. Id. ¶¶ 2-3.

         The court entered a Case Management Order ("CMO") on May 8, 2018, providing, among other things, that "Plaintiffs shall file their anticipated motion for conditional certification no later than June 15, 2018," and that fact discovery shall be completed by either six months after the close of the opt-in period if the court grants conditional certification of the FLSA collective action or six months after the court denies conditional certification of the FLSA collective action. [DE-45] ¶¶ LC, D. The CMO further provided that "[i]f the case is certified as a class action pursuant to Rule 23, the parties shall confer and make joint report to the court within 30 days of certification about the proper amount of written discovery to be served on Rule 23 class members." Id. ¶ M.

         After receiving an extension of time, on June 19, 2018, Plaintiffs filed a motion to conditionally certify two FLSA classes under § 216(b): an Overtime Collective Action and a PPE Collective Action. [DE-49]. The parties were able to reach an agreement regarding conditional certification [DE-64], and on November 27, 2018, the court entered a consent order conditionally certifying two § 216(b) collectives:

1. A collective consisting of all similarly situated individuals engaged in the construction of IS46 through Defendant East Carolina Commercial Services individually or jointly with one or more of the other Defendants who were required to work in excess of forty hours per week and were not paid the appropriate overtime rate for hours worked over 40 in a workweek, and who timely file (or have already filed) a written consent to be a party to this action pursuant to 29 U.S.C. § 216(b); and
2. A collective consisting of all similarly situated individuals engaged in the construction of IS46 through Defendant East Carolina Commercial Services individually or jointly with one or more of the other Defendants who were required to purchase and provide their own hard hats, vests, boots, safety glasses and/or gloves and were not reimbursed for those purchases or paid minimum wage for their first' week of work, and who timely file (or have already filed) a written consent to be a party to this action pursuant to 29 U.S.C. § 216(b).

[DE-93]. The opt-in deadline was extended to May 27, 2019 [DE-109], and, as a result, the fact discovery deadline is November 27, 2019 [DE-45] ¶¶ I.D. 1.

         Plaintiffs also proposed, in the Second Amended Complaint, the following two Rule 23 classes for NCWHA violations:

The NCWHA Class # 1 consists of all non-supervisory workers who were employed by one or more Defendants to perform work in the construction of the solar farm known as IS46 in any pay period falling within two chronological years immediately preceding the date on which this action was filed and continuing thereafter through the date on which final judgment is entered in this action and who did not receive all of their wages when due.
The NCWHA Class #2 consists of all non-supervisory workers who were employed by one or more Defendants to perform work in the construction of the solar farm known as IS46 in any pay period falling within two chronological years immediately preceding the date on which this action was filed and continuing thereafter through the date on which final j udgment is entered in this action and who did not receive all of their wages when due at the wage rate disclosed to them pursuant to N.C. Gen. Stat §§ 95-25.13(1)-(2) for hours worked in excess of 40 hours in one workweek.

[DE-81] ¶¶ 125, 135. Plaintiffs have yet to seek certification of these putative classes under Rule 23, and Defendants have filed a motion to strike the NCWHA class allegations and claims [DE-158].

         Plaintiffs served requests for production of documents ("RFP") on Defendants on May 16, 2019, and Defendants served responses on July 9, 2019 and supplemental responses on July 19, September 3, and September 6. Pis.' Mot. [DE-154] ¶ 8. In dispute are RFP Nos. 11-15, 20-21, and 23. Id. ¶ 13. Plaintiffs certified that they attempted in good faith to resolve the issues in dispute with Defendants prior to filing the instant motion to compel. Id. ¶ 12.

         Plaintiffs noticed a 30(b)(6) deposition of SGI for October 2, 2019. SGI's Mem. [DE-166] at 3. SGI objected to the scope of certain designated topics, and counsel were able to resolve some, but not all, of the disputed issues. Id. at 2-3. SGI filed the instant motion for protective order to i preserve its objections. Id. However, at the deposition SGI answered all of Plaintiffs' planned questions without defense counsel objecting that any question involved a disputed topic raised in the motion for protective order. Pis.' Resp. ...


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