United States District Court, D. Colorado
FRANKLIN MERRILL, LORA LEE, BRENT LEE, ANTHONY GLOVER, KEITH HERRING, ANTHONY DENNIS, LARRY JURCAK, SAMI NASR, JENNIFER THOMAS, ROBERT THOMAS, RONALD DENNIS, JESSE FISHER, RODNEY LACY, JAMES NEWBERRY, TAMI POTIRALA, CRAIG WILLIAMS, ZIGMUND GUTOWSKI, JOSEPH HORION, ERIC ARD, TIM HOLLINGSWORTH, and LONNIE FAILS, Plaintiffs,
PATHWAY LEASING LLC, a Colorado limited liability company, MATTHEW HARRIS, an individual, TRANSFORCE, INC., a Canadian corporation, XPO LOGISTICS TRUCKLOAD, INC., and CON-WAY TRUCKLOAD, INC., a Missouri corporation registered to conduct business in Colorado, Defendants.
KRISTEN L. MIX MAGISTRATE JUDGE.
matter is before the Court on Defendants' Renewed
Joint Request for Status Conference [#120] (the
“Motion). Plaintiffs filed a Response [#121] in
opposition to the Motion. No Reply was filed.
19, 2017, the Court conditionally certified this lawsuit as a
collective action. See Order [#115] at 4. The Court
directed Defendants to provide Plaintiffs' counsel with a
list of all putative collective action members by July 19,
2017, and ordered the notice and consent to be sent to
putative collective action members by August 18, 2017.
Id. at 4-5.
counsel sent a draft Notice to Defendants' counsel on
July 3, 2017. See [#120-1]. Plaintiffs timely
received the list of putative collective action members on
July 19, 2017. See [#121-1] at 1. On or around July
25, 2017, Plaintiffs' counsel sent the Notice to the list
of putative collective action members that had been provided
by Defendants. Defendants were apparently under the
impression that Plaintiffs would wait until about August 18,
2017, the deadline set by the Court, to send the Notice, and
so had not yet responded to Plaintiffs with their proposed
edits to the draft Notice. Motion [#120] at 5.
Plaintiffs, not having heard from Defendants in twenty-two
days that Defendants would be suggesting changes to the draft
Notice, issued the Notice six days after receiving the list
of putative collective action members. Response
[#121] at 1-2.
seek a status conference “to address the issues
relating to the Plaintiffs' unilateral, ex
parte, issuance of Notices to potential opt-in
Plaintiffs . . . .” Motion [#120] at 6.
“Defendants believe a remedial Notice may be necessary,
along with other relief, due to Plaintiffs'
conduct.” Id. Plaintiffs counter that they
have “already offered to work with Defendants to craft
a follow-on notice to cure any perceived deficiencies despite
having no obligation to do so (and despite Defendants'
failure to direct Plaintiffs to any substantive deficiency in
their Notice) in order to avoid the instant briefing and
involvement of the Court. Defendants declined this
offer.” Response [#121] at 4.
Court previously noted, it is aware of no binding authority
requiring the Court to approve the form and content
of the notice before it is sent to potential opt-in
plaintiffs, see [#119], and the parties have
provided none. The Court is also aware of no binding
authority requiring Plaintiffs to obtain input from
Defendants before sending notice to putative plaintiffs in a
conditionally certified collective action. The Court has
previously noted that “prudent attorneys normally
obtain Court approval of the notice before it is sent in
order to circumvent any issues regarding the notice at the
earliest possible time.” See [#119]. The same
is true of obtaining input from the defendants in this kind
the situation at hand is clearly a result of poor
communication between counsel for both sides and could have
been prevented had either counsel simply picked up the
telephone or sent an e-mail informing the other that proposed
edits to the draft Notice would be forthcoming from
Defendants or that the proposed Notice would be sent by
Plaintiffs on or about a certain date in the absence of any
proposed edits from Defendants. Each side made assumptions
about the other which has resulted in needless issues arising
in connection with the content of the Notice.
it is unclear what a Status Conference could possibly
accomplish under these circumstances except as a forum to
allow the parties to air their grievances about the conduct
of one another. The Court sees no utility in that course of
action. Rather, the Court orders as follows.
HEREBY ORDERED that the Motion [#120] is
DENIED without prejudice. The parties are
directed to confer about the efficacy of a Corrective Notice
and whether one should be sent to the putative collective
action members. If the parties cannot agree that a Corrective
Notice should be sent and/or cannot agree on the exact
content of the Corrective Notice, Defendants shall file a
motion regarding issuance of a Corrective Notice and a
proposed Corrective Notice, and any other relief sought in
connection with this issue, no later than October 19,
2017. Plaintiffs shall file a response to the motion
no later than November 2, 2017. Each party
should submit their own version of the Corrective Notice
which clearly indicates each point of disagreement.
No reply will be permitted.
to the Court's Minute Order [#142] directing the parties
to call to reset various trial-related settings, IT IS
FURTHER ORDERED that the joint Final
Pretrial Conference, Jury Instructions Conference, and Trial
Preparation Conference are RESET for
March 22, 2018, at 1:30
p.m. in Courtroom A401, Fourth Floor, Alfred A.
Arraj United States Courthouse, 90119th Street, Denver,
Colorado. Trial counsel must attend in person.
FURTHER ORDERED that the proposed Final
Pretrial Order is due no later than March 15,
FURTHER ORDERED that the fifteen-day Jury
Trial is set to begin on April 30, 2018, at
9:00 a.m. in Courtroom A401, Fourth Floor,
Alfred A. Arraj United ...