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Lysyj v. Milner Distribution Alliance, Inc.

United States District Court, D. Colorado

June 12, 2014

DANIEL LYSYJ, DAVID RHOADS, RICH AULICH, SHANNON DOLCE, LONNIE ENDERLE, JASON JACOBS, SARA KRUEGER, ANDY MARTIN, BRENT MCDANIEL, MARC MOHR, JONATHAN PANURE, and BOGDAN PETRESCU, Plaintiff(s),
v.
MILNER DISTRIBUTION ALLIANCE, INC., d/b/a Maxx Sunglasses, a Colorado corporation, NANCY MILNER, Individually, and RICHARD MILNER, Individually, Defendant(s).

ORDER REGARDING (1) PLAINTIFFS' MOTION TO AMEND COMPLAINT TO JOIN DEREK SMITH AS A PLAINTIFF (DOCKET NO. 117); (2) PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37 FOR WITHHOLDING RELEVANT EVIDENCE, FOR FAILURE TO PRODUCE NON-PRIVILEGED DOCUMENTS PURSUANT TO F.R.C.P [SIC] 34 AND F.R.C.P. [SIC] 26a (DOCKET NO. 99); (3) PLAINTIFFS' MOTION TO MODIFY THE SCHEDULING ORDER FOR GOOD CAUSE (DOCKET NO. 118); and (4) DEFENDANTS' MOTION TO STRIKE IMPROPER AND UNTIMELY OPT-IN CONSENT FORM OF DEREK SMITH (DOCKET NO. 126)

MICHAEL J. WATANABE, Magistrate Judge.

This case is before the undersigned pursuant to an Order Referring Case issued by Judge Raymond P. Moore on July 19, 2013 (docket no. 4). Now before the court are the following four motions: (1) Plaintiffs' Motion to Amend Complaint to Join Derek Smith as a Plaintiff (docket no. 117), (2) Plaintiff's Motion to Compel and for Sanctions Pursuant to Fed.R.Civ.P. 37 for Withholding Relevant Evidence, for Failure to Produce Non-Privileged Documents Pursuant to F.R.C.P. 34 and F.R.C.P. 26a (docket no. 99), (3) Plaintiffs' Motion to Modify the Scheduling Order for Good Cause (docket no. 118), and (4) Defendants' Motion to Strike Improper and Untimely Opt-In Consent Form of Derek Smith (Docket No. 119) (docket no. 126). The court has carefully considered these motions (docket nos. 117, 99, 118, and 126), Defendants' response to the first motion (docket no. 113), and Plaintiffs' reply thereto (docket no. 121), as well as applicable Federal Rules of Civil Procedure and case law. In addition, the court has taken judicial notice of the court file. The court now being fully informed makes the following findings, conclusions of law, and Order.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This court finds:

On July 19, 2013, the Complaint was filed in this court. See docket no. 1.

On September 24, 2013, this court entered a Scheduling Order. This case began as a collective action case but is no longer a collective action case. Instead, this case can now be classified as a multiple plaintiffs case. In the Scheduling Order (docket no. 29), the parties were given until 60 days after the Notice was sent to the putative class to amend the pleadings or join additional parties. See paragraph 9 a. in the Scheduling Order (docket no. 29).

On September 10, 2013, Plaintiffs filed their Motion to Certify Conditionally a Collective Action Under the Fair Labor Standards Act 29 U.S.C. ยง 216(b) and for Court Assisted Notice Under Authority of Sperling v. Hoffman La Roche, 493 U.S. 165, 169 (1989) (docket no. 7). On September 27, 2013, Defendant filed a Motion to Stay Proceedings and Compel Arbitration as to Plaintiff Daniel Lysyj only (docket no. 31). On January 24, 2014, Judge Moore entered his Order regarding docket no. 31. In his Order (docket no. 51), Judge Moore entered the following Order: (1) Plaintiffs' Motion to Certify Class (docket no. 7) is GRANTED; (2) Defendant's Motion to Compel Arbitration (docket no. 31) is GRANTED; (3) The claims of Mr. Lysyj are STAYED pending arbitration; and (4) The fee-splitting provision in the arbitration agreement is hereby STRICKEN.

On January 27, 2014, this court conducted a telephone status conference. At this conference, this court ordered that Defendant provide the names and addresses of those members as defined by Judge Moore's Order (docket no. 51) to Plaintiffs on or before February 10, 2014. In addition, this court set a further telephone status conference on April 7, 2114 at 10:30 a.m. See docket no. 52.

On April 7, 2014, this court conducted another telephone status conference. At this conference, this court entered the following ORDERS:

a. That the Motion to Withdraw Consents to Join Filed by Debra Grainger and Floyd Roberts (docket no. 72) is GRANTED. Consent forms for Grainger and Roberts (docket nos. 60 and 57) were WITHDRAWN;
b. That on or before April 25, 2014, Defendant shall provide Plaintiffs the Time and Pay Records for the approximately 11 to 18 Opt-in Plaintiffs;
c. That on or before April 25, 2014, Defendant shall provide to Plaintiffs any Supplemental Time and Pay Records as to Plaintiff David Rhoads;
d. That on or before April 11, 2014, parties shall file a Stipulation as to the three known Opt-in Plaintiffs who are subject to an arbitration agreement and the previous order entered by Judge Moore. It is not certain at this time if one other Opt-in Plaintiff may be subject to an arbitration agreement and the previous order entered by Judge Moore. On or before April 16, 2014, parties shall file any appropriate Stipulation as to that one Opt-in Plaintiff;
e. That Defendant's Oral Motion is GRANTED. The Scheduling Order (docket no. 29, filed September 24, 2013) is amended to allow Defendant additional ...

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