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Pierce v. Wyndham Vacation Resorts, Inc.

United States District Court, E.D. Tennessee, Knoxville

February 11, 2015

JESSE PIERCE and MICHAEL PIERCE, on behalf of themselves and all others similarly situated, Plaintiff,


C. CLIFFORD SHIRLEY, Jr., Magistrate Judge.

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Motion to Adopt Defendants' Version of the Notice to the Class and to Include Opt-In Survey with the Court-Supervised Notice to Opt-In Plaintiffs [Doc. 90], filed by Defendant Wyndham Vacation Resorts, Inc., and Wyndham Vacation Ownership, Inc., (collectively "Wyndham"). This motion has been fully and thoroughly briefed, see Doc. 110 (listing numerous filings), and the parties appeared before the undersigned on January 21, 2015, to present oral arguments on this motion. The Court finds that the motion is now ripe for adjudication, and for the reasons stated herein, it will be GRANTED IN PART and DENIED IN PART. Similarly, the parties' competing proposals for the notice of suit and opt-in form are ACCEPTED IN PART and REJECTED IN PART.


On April 24, 2014, the undersigned entered a Report and Recommendation recommending that the Plaintiffs' Motion to Certify Collective Action be granted. The District Judge adopted this recommendation on August 21, 2014. The District Judge directed that the Plaintiffs file a proposed notice and opt-in form within five days of entry of the Court's Order, and Wyndham was permitted five days to respond to the Plaintiffs' proposal.

On August 21, 2014, the Plaintiffs filed their proposed notice and opt-in form [Doc. 85], and on August 26, 2014, Wyndham filed a competing proposed notice and opt-in form [Doc. 89]. On the same day, Wyndham filed the instant motion [Doc. 90]. The parties briefed this motion and ancillary issues related to the motion for approximately three months. Upon the conclusion of the parties' briefing, the Court set the issue for hearing.

The primary point of contention between the parties is whether Wyndham should be permitted to include questionnaire in the mailing to potential opt-in plaintiffs, along with the notice and opt-in form, [see Doc. 89-1]. Wyndham argues that this survey will expedite the litigation and allow the parties to gather information about the potential plaintiffs. The Plaintiffs oppose the use of the questionnaire and argue that it is premature discovery that is likely to chill participation in this suit. The parties also take issue with one another's proposed notices and opt-in forms, including: the formatting of the documents; the language and syntax of the documents; and the dates and deadlines contained in the documents.


The Court will address the issues raised by the parties in turn.

A. Wyndham's Proposed Inclusion of a Questionnaire

Generally, an initial mailing regarding an FLSA collective action includes: (1) a notice, advising the potential litigant of his or her ability to join the suit and (2) an opt-in form, which the potential litigant can use to join the suit. Wyndham has proposed that in this case a third document be included in the mailing: a six-page questionnaire, which from its introductory language appears to be mandatory.

Wyndham acknowledges that such questionnaires are not common-place, but Wyndham maintains that they have been used by courts in other cases. Wyndham argues that the use of the questionnaire may streamline litigation and enable it to craft its decertification motion.

The Plaintiffs have responded by asserting that the relief requested by Wyndham is extraordinary and amounts to permitting discovery prior to a potential litigant becoming a party to this suit. The Plaintiffs maintain that the requirement that the opt-in plaintiffs complete the questionnaire, without consultation of counsel, prior to joining the suit would discourage participation and be inconsistent with 29 U.S.C. § 216 and the Federal Rules of Civil Procedure.

The Court has thoroughly considered the parties' positions and the applicable case law on this issue. At the hearing, Wyndham's counsel relied heavily upon Rosenberg v. University of Cincinnati, 118 F.R.D. 591 (S.D. Ohio 1987), which he argued supported Wyndham's position that obtaining discovery before a litigant opts in is acceptable. Initially, the Court finds that Wyndham's reliance on an almost thirty-year-old case indicates that the use of the questionnaires is not as common place as Wyndham would have the Court believe. Second, the Court finds that Rosenberg devoted almost no discussion to the issue before the Court. The court in Rosenberg addressed the defendant's motion to decertify a class of female faculty members. Id. at 591-96. The only mention of a questionnaire in Rosenberg is in the court's description of the case's procedural posture and its rulings, id. at 491-92, and where the court explained the procedure for decertifying the class, stating:

In the present case, on Defendants' motion (Doc. # 60), notice of the class action was sent to women employed in faculty positions at the University of Cincinnati at any time between July 15, 1974 and December 15, 1977 by the Plaintiff. See Doc. # 66. Answered questionnaires which accompanied that notice were to be returned to the Clerk of Courts. See Entry of April 23, 1981 (Doc. # 65). Accordingly, because members of the former class who returned the questionnaires received notice of the initial class certification and may have relied upon being included in that class, the Court hereby orders that the ...

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