United States District Court, E.D. Kentucky, Central Division, Lexington
CRAIG WILLIAMS, On behalf of himself & all others similarly situated, et al., Plaintiffs,
v.
KING BEE DELIVERY, LLC, and BEE LINE COURIER SERVICES, INC., Defendants.
MEMORANDUM OPINION AND ORDER
Joseph
M. Hood Senior U.S. District Judge.
This
matter is before the Court on Plaintiffs' Emergency
Motion for Corrective Relief Regarding the Opt-In Notice [DE
73]. For the reasons stated below, the Motion will be GRANTED
IN PART and DENIED IN PART.
In its
prior Order [DE 70], the Court required the Defendants to
produce contact information, including email addresses and
telephone numbers, for approximately 435 current and former
delivery drivers (the “Notice Group”). Of the 435
members of the Notice Group, 266 of those are former delivery
drivers, and of those, Defendants retained email addresses
for only 26 former delivery drivers. Plaintiffs now request
that they be permitted to call Defendants' former
delivery drivers who have not responded to the opt-in notice
by April 30, 2017, solely to determine their correct mailing
or email address in order to deliver notice to those former
drivers. In the alternative, Plaintiffs ask to be allowed to
contact these members of the Notice Group by text message.
Plaintiffs support their request with an Affidavit from the
Class Action Administrator at the law firm representing
Plaintiffs. The Affidavit states that of the 266 notices sent
to former delivery drivers, 37 have been returned at
“undeliverable” as of April 24, 2017 [DE 79-1,
¶5]. The opt-in period in this matter will expire on May
30, 2017.
District
Courts around the country have both granted and denied
similar requests for telephone or text message contact with
potential class members. E.g., Vasto v. Credico (USA)
LLC, 2016 WL 2658172 (S.D.N.Y. May 5, 2016) (permitting
text message contact due to the high turnover in
Defendant's business); But see, e.g., Arevalo v.
D.J.'s Underground, Inc., 2010 WL 4026112, at *2 (D.
Md. Oct. 13, 2010) (denying Plaintiffs' request for text
message notification, noting that low opt-in rates are not
evidence that the opt-in notice has not been received).
“Courts
generally approve only a single method for notification
unless there is a reason to believe that method is
ineffective.” Wolfram v. PHH Corp., 2012 WL
6676778 at *4 (S.D.Ohio Dec. 21, 2012). In this instance, it
is clear that for some of the former delivery drivers, postal
mail is not an effective method of notification, as over 13%
of the notices have been returned
“undeliverable.” “There is no
‘one-size-fits-all' approach to notifying putative
class members in lawsuits such as this. The ultimate goal of
the Court is to provide ‘[a]ccurate and timely notice
concerning the pendency of the collective action promotes
judicial economy because it...allows [putative class members]
to pursue their claims in one case where the same issues of
law and fact are already being addressed.'”
Fenley v. Wood Grp. Mustang, Inc., 170 F.Supp.3d
1063, 1074 (S.D. Ohio 2016) (quoting Swigart v. Fifth
Third Bank, 276 F.R.D. 210, 214 (S.D.Ohio 2011)).
Some of
the former delivery drivers have not received notice of this
lawsuit by regular mail, and due to the lack of available
email addresses for former employees, email will likely not
be an effective means of notifying all of these members of
the Notice Group. Thus, in the interest of providing adequate
notice to the Notice Group, but avoiding duplicate notice or
the appearance that the Court endorses the plaintiffs'
claims, the Court will permit notice by telephone to those
individuals for whom Plaintiffs receive the mailed notice
returned “undeliverable, ” if there is no email
address available for that individual. If an email address is
available, Plaintiffs shall utilize email to notify that
individual. Telephone contact shall be solely to determine
the individual's correct mailing or email address in
order to deliver the notice. According to Plaintiffs, as of
April 24, 2017, this subgroup of former delivery drivers was
only 37 persons. Plaintiffs may also contact, by telephone,
any former delivery drivers for whom they receive a notice
returned “undeliverable” between the date of this
Order and the close of the opt-in period. The Court agrees
with Defendants that mere lack of response to the notice does
not indicate that the individual did not receive the notice,
therefore, only individuals whose mail was returned
“undeliverable” and for whom there is no email
address available may be contacted telephonically.
Accordingly,
for the reasons stated herein, IT IS ORDERED:
(1)
Plaintiffs' Motion for Corrective Relief Regarding the
Opt-In Notice [DE 73] is GRANTED IN PART with respect to
telephonic contact for the sole purpose of obtaining email or
mailing addresses for Notice Group members who are former
delivery drivers whose mail was returned
“undeliverable” and for whom no email address is
available;
(2)
Plaintiffs' Motion for Corrective Relief Regarding the
Opt-In Notice [DE 73] is DENIED IN PART with respect to
Plaintiffs' request to contact any other individuals by
telephone or to contact any member of the Notice Group by
text message;
(3)
Plaintiffs and Defendants SHALL AGREE on a script for the
telephone call no later than April 28, 2017; and
(4) All
telephone calls made pursuant to this Order SHALL be
completed by ...