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Faust v. Comcast Cable Communications Management, LLC

United States District Court, D. Maryland

February 11, 2015

JOEL FAUST et al.
v.
COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC ISHMAEL ANDREWS et al.
v.
COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC

MEMORANDUM

WILLIAM M. NICKERSON, Senior District Judge.

These two related actions have been pending before this Court for a considerable period of time: Faust v. Comcast Cable Communications Management, LLC, Civ. No. WMN-10-2336 (Faust), for more than four years; and Andrews v. Comcast Cable Communications Management, LLC, Civ. No. WMN-12-2909 (Andrews), for more than two years. As these cases move closer to trial, the parties have filed motions seeking to alter the scope of those trials. In Faust, Plaintiffs have filed a motion for leave to amend the complaint to add additional Named Plaintiffs. Faust, ECF No. 138. In Andrews, Defendant has filed a motion to sever the claims of the three Named Plaintiffs into three separate proceedings. Andrews, ECF No. 82. In addition to these motions, Plaintiffs have filed near identical motions for discovery sanctions in both actions. Faust, ECF No. 143; Andrews, ECF No. 84. All four motions are ripe. Upon review of the papers and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that Defendant's motions to sever in Andrews will be granted and the remaining motion will be denied.

I. MOTION TO AMEND (FAUST) and MOTION TO SEVER (ANDREWS)

The factual and procedural background of these cases has been previously set out by this Court, most recently in its July 15, 2014, Memorandum denying the motions for class certification under Rule 23 of the Federal Rules of Civil Procedure that Plaintiffs had filed in both actions. Faust, ECF No. 134; Andrews, ECF No. 77. Briefly stated, these actions involve claims that Plaintiffs, who were employed by Defendant as Customer Account Executives (CAEs), were required to work "off-the-clock" without pay. They bring claims under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA), as well as under the Maryland Wage and Hour Law (MWHL), Md. Code Ann., Lab. & Empl. §§ 3-401 to 3-407, and the Maryland Wage Payment and Collection Law (MWPCL), Md. Code Ann., Lab. & Empl. §§ 3-501 to 3-509.

A. Procedural History of Faust

Faust was filed on August 23, 2010, by two Named Plaintiffs, Joel Faust and Marshall Feldman. It was originally brought as a potential class action for a class to include all CAEs that worked in all of the call centers operated by Defendant in Maryland. During the relevant time period, Defendant operated eight such call centers. On November 1, 2011, this Court conditionally certified a collective action under the FLSA that encompassed only CAEs employed or formerly employed at one of those call centers, the center located at 8110 Corporate Drive in White Marsh, Maryland (the 8110 Call Center), at which both Named Plaintiffs had been employed. ECF No. 43. In response to the notice of the conditional certification sent to those potential class members, 56 additional CAEs opted into this action.

On March 27, 2012, the Court issued an order permitting limited discovery as to the Opt-In Plaintiffs. The Court permitted Defendant to depose 11 of those Plaintiffs, but limited the deposition hours to 40. It also permitted Defendant to serve up to 10 requests for production from those CAEs that were deposed, but no interrogatories could be served on those individuals. The depositions of those eleven Opt-In Plaintiffs were taken between August 2012 and August 2013.

On November 11, 2013, Plaintiffs filed a motion seeking to certify a class action as to the claims under the MWHL. The Court denied that motion on July 15, 2014, concluding that, "[w]hile there may be some questions of fact and law that are common among all class members, the Court finds that the critical issues in this litigation are not subject to common proof." Faust, ECF No. 134 at 26-27. The Court acknowledged that all potential class members were subject to the same official policies prohibiting any work off-the-clock, were subject to similar time-keeping requirements, and were generally subject to the same pressures to maximize their time dealing with customers on the telephone. See id. at 27 n.12. The Court noted, however, that these policies and procedures, as well as any unofficial policy permitting or requiring CAEs to work offthe-clock, would have been communicated, implemented, and enforced by different supervisors, perhaps in different ways. Id. at 28-31. The Court also noted that the practices and routines of individual CAEs varied significantly, particularly as to "badge swiping" upon entering the call center, engaging in work and non-work activities before and after logging into the Comcast computer system, and the manner in which they recorded their work starting and ending times. Id. at 33-35. In addition to defeating class treatment of Plaintiffs' claims, the Court found that these differences significantly reduced the usefulness of "badge swipe data" and "First NT Login data" in calculating the amount of any off-the-clock work. Id.

In its Order denying class certification, the Court requested that the parties submit a status report proposing the manner in which this case should proceed to trial. Faust, ECF No. 135. The parties submitted their joint report on July 27, 2014. In that report, Defendant expressed its intention to file a motion to decertify the collective action and Plaintiffs, apparently anticipating that the Court would grant Defendant's motion to decertify, expressed their intent to file a motion to amend the Complaint to add several of the Opt-In Plaintiffs as Named Plaintiffs. Faust, ECF No. 136 at 1. The parties also reported that they did not believe that any additional discovery was needed, unless the Court were to grant the motion to amend and additional discovery was necessary related to those new Named Plaintiffs. Id.

With the denial of class certification of the state law claims, the Faust action now consists of the individual MWHL and the MWPCL claims of the two Named Plaintiffs, and the conditional collective action under the FLSA. Were the Court to grant the anticipated motion to decertify the collective action under the FLSA, the case would be tried on the FLSA, MWHL, and MWPCL claims of the two Named Plaintiffs. In their motion to amend, Plaintiffs seek to add as Named Plaintiffs nine of the eleven Opt-In Plaintiffs that were deposed as part of the pre-certification discovery. If granted, that would result in a single trial of the claims of eleven CAEs.

B. Procedural History of Andrews

Almost a year after the Court declined to certify a conditional class under the FLSA in Faust that would encompass all of Defendant's call centers in Maryland, Ishmael Andrews and Kyle Camp filed a separate action on October 1, 2012, to assert the claims of current and former CAEs of the call center located at 8031 Corporate Drive in White Marsh, Maryland (the 8031 Call Center). As initially brought, this action included claims for a collective action under the FLSA and a class action under the MWHL and the MWPCL. Plaintiffs subsequently moved to amend the Complaint on August 20, 2013, to eliminate the assertion of a collective action under the FLSA and to add Aubrey Foster as a third Named Plaintiff. The Court granted that motion on August 22, 2013.

In the Memorandum and Order that denied class certification in Faust, the Court denied the same in Andrews for the same reasons. Since Plaintiffs have dismissed the collective action aspect of their FLSA claim, this action now simply asserts the FLSA, MWHL, and MWPCL claims of the three Named Plaintiffs. In its motion, Defendant seeks to ...


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