The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CRAIG ADAMS and JOSEPH KNOPP, )
Individually and on Behalf of Others )
Similarly Situated, )
)
Plaintiffs, )
)
vs. ) Case No. 19-CV-00093-W-WBG
)
CITY OF KANSAS CITY, MISSOURI, )
)
Defendant. )
ORDER
Pending are Defendant City of Kansas City, Missouri’s Motion in Limine on Damages
(Doc. 584), and Plaintiffs Craig Adams and Joseph Knopp’s Motion to Enforce Discovery. Doc.
586. For the following reasons, both motions are DENIED.
I. BACKGROUND1
A. Initial Scheduling Order
This Fair Labor Standards Act (“FLSA”) collective action was filed in January 2019 and
removed to this Court in February 2019. Doc. 1; Doc. 1-1 at 3-13. In May 2019, the Court issued
its Scheduling and Trial Order. Doc. 8. Relevant here, any discovery motion was to be filed by
November 29, 2019. Id. at 1. The Court directed movants to comply with Local Rule 37.1, which
is explained in further detail infra, before filing a discovery motion. Id. at 1-2. Prior to the
discovery motion deadline, no discovery telephone conferences were held with the Honorable John
Maughmer, to whom this matter was initially assigned,2 and neither party filed a discovery motion.
1 The Court only includes background information relevant to the two pending motions.
2 On September 28, 2020, this matter was transferred to the undersigned, and on October 19, 2020, the parties
consented to the undersigned’s jurisdiction. Docs. 553, 555, 555-1.
B. Amended Scheduling Order
In January 2020, Judge Maughmer granted in part Plaintiffs’ motion for conditional
certification. Doc. 45. Simultaneously, the Court amended its Scheduling Order. Id. at 7-8.
Among other things, the Court directed the parties to complete all discovery by July 24, 2020. Id.
at 7. No discovery telephone conferences were held with Judge Maughmer, and neither party filed
a discovery motion before the extended discovery deadline.
C. Summary Judgment Order and Subsequent Scheduling Conference
On September 29, 2021, the Court issued its decisions on the parties’ cross-motions for
summary judgment. Doc. 570. Shortly thereafter, the Court set a scheduling conference for
October 20, 2021. Doc. 571. During the scheduling conference, Plaintiffs indicated they needed
additional discovery and access to Defendant’s payroll software. Doc. 572. The Court encouraged
counsel to meet and confer with one another on the issues raised by Plaintiffs. Doc. 572. The
Court also directed the parties to work with the Court’s Mediation and Assessment Program
Director, who previously mediated this matter, to resolve Plaintiffs’ request for discovery and
request to access Defendant’s payroll software, as well as the matters to be tried. Docs. 572, 574.
D. Status Conference
On November 22, 2021, the Court held a status conference. Doc. 577. During the hearing,
Plaintiffs’ counsel stated discovery was still outstanding, and their expert needed access to
Defendant’s payroll software. Again, the Court encouraged the parties to meet and confer to
resolve Plaintiffs’ concerns. If the parties were unable to resolve those issues, the Court ordered
any motion related to data access and/or discovery be filed by December 15, 2021, and any
response be filed by December 29, 2021. Id.
E. The Pending Motions
On December 15, 2021, Defendant filed a Motion in Limine (Doc. 584), and Plaintiffs filed
a Motion to Enforce Discovery (Doc. 586). Both motions pertain to Plaintiffs’ damages.
(1) Defendant’s Motion
Defendant moves to exclude any evidence of Plaintiffs’ damages at trial due to their
noncompliance with Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure. Doc. 584.
Plaintiffs served their Rule 26(a) initial disclosures on July 28, 2020. Doc. 584-1; see also Doc.
533. Therein, they state, “[i]n this Fair Labor Standards Act (‘FLSA’) Collective Action against
Defendant…, Defendant is Plaintiffs’ employer and therefore Defendant is the sole source of
discovery information that the Plaintiffs may use to support their claims.” Id. at 2. They also
assert the initial disclosures “are based upon information known and reasonably available to
Plaintiffs at this time,” they “reserve their right to revise, amend, and[/]or supplement,”
“Defendant’s practice of underpaying Plaintiffs’ overtime…is ongoing,” and they “require payroll
information from Defendant on a periodic basis in order to update or supplement Plaintiffs’
damages calculations.” Id. Appendix A to the initial disclosures “describe[d] damages claimed
by the Plaintiffs,” and listed the “annual underpayment of wages” for each collective action
member for 2016, 2017, 2018, and 2019. Id. at 1, 4-8.
Defendant contends Plaintiffs’ initial disclosures “are simply lists of numbers, devoid of
any computations, showing the purported damages,” and “[t]here are no documents or other
evidentiary materials on which the computation is based.” Doc. 584 at 1-2. It also argues the
initial disclosures omitted calculations related to “willfulness damages,” liquidated damages, and
attorneys’ fees. Id. at 2, 4. Due to these omissions, Defendant argues Plaintiffs should not be
permitted to present evidence of their damages at trial. Id. at 1, 4-8. Defendant requests that if the
Court permits evidence of Plaintiffs’ damages that discovery be reopened with regard to Plaintiffs’
damage calculations, and Defendant be allowed to name a rebuttal expert on damages. Id. at 7-8.
Plaintiffs oppose Defendant’s motion for several reasons. In summary, Plaintiffs argue
Defendant failed to establish compliance with Rule 37 of the Federal Rules of Civil Procedure
before filing its motion. Doc. 591 at 2-3. They also maintain Defendant possesses all necessary
information to calculate overtime underpayments and have access to the payroll software where
“regular rates can be entered…for overtime compensation.” Id. at 4-6. In addition, Plaintiffs argue
their method for computing underpayment of overtime compensation was detailed in their October
2020 summary judgment motion. Id. at 4-5 (citing Doc. 557 at 6-11). They also contend striking
evidence of their damages would amount to an unwarranted dismissal. Id. at 9-12.
In its reply, Defendant argues it was not required to ensure Plaintiffs met their Rule 26
disclosure obligations. Doc. 593 at 2-3. Regardless, Defendant argues Plaintiffs had the necessary
information to calculate their damages because Defendant produced pay stubs for each collective
action member in PDF format and provided the underlying data for the pay stubs in a manipulable
spreadsheet. Id. at 2. In addition, Defendant argues Plaintiffs could have inquired about its payroll
software when they took depositions in this matter. Id. It also informs the Court that although
Plaintiffs served amended initial disclosures on December 31, 2021, Plaintiffs failed to identify
“willfulness damages,” liquidated damages, and attorneys’ fees. Id. at 6-7.
(2) Plaintiffs’ Motion
Plaintiffs’ motion pertains to discovery they propounded in May 2019. Doc. 586; see also
Doc. 9. In their First Request for Production of Documents, Plaintiffs asked “the City make any
and all electronic databases…which contain…firefighter payroll records, available for inspection
within forty-five (45) days.” Doc. 586 at 2; Doc. 586-1. After Defendant failed to respond to the
request, Plaintiffs’ counsel sent a letter asking defense counsel when she was available to discuss
Defendant’s failure to respond. Doc. 586-3.3 Plaintiffs represent Defendant never offered a date
and time for the requested inspection. Doc. 586 at 2. They argue Defendant did not respond to
the request to inspect payroll data, and therefore, has waived any objection to the request. Id. at
3. Plaintiffs move for an order requiring Defendant to provide Plaintiffs’ expert reasonable and
meaningful access to Defendant’s payroll software as well as assistance from one of Defendant’s
payroll specialists to guide the expert through the payroll process. Id. at 2.
Defendant argues Plaintiffs’ motion is untimely pursuant to the Court’s deadlines. Doc.
588 at 1. It also represents Plaintiffs did not communicate with defense counsel after the October
2021 status conference, contrary to the Court’s instruction. Id. at 2. Regardless, Defendant states
it previously confirmed what information Plaintiffs’ counsel needed, and it provided the requested
information from its payroll software. Id. at 2-3. Defendant also argues Plaintiffs have not
demonstrated why access to the payroll software is necessary. Id. at 1-2.
In their reply, Plaintiffs claim access to the payroll software is necessary to confirm the
validity and enhance the accuracy of damage calculations. Doc. 592 at 1-2. They maintain the
payroll software performs some calculations that do not appear on an employee’s pay stub. Id.
They would like Defendant to “pull back the curtain” and “reveal the rules it created in its payroll
software to produce pay data under all circumstances.” Id. at 4-5 (emphasis in original).
3 Based on the docket, it remains unclear if Defendant ever served its initial responses to Plaintiffs’ First Request for
Production of Documents. In November 2019, Defendant filed a certificate of service indicating it served Answers
and Objections to Plaintiffs’ Second Request for Production of Documents. Doc. 18. In September 2020, after
discovery closed, Defendant filed a certificate of service indicating it served supplemental responses to Plaintiffs’
“Request for Production of Documents.” Doc. 547. It it unclear if the supplemental responses pertain to Plaintiffs’
first or second request for documents. See id. Regardless, according to the Local Rules, “A party must file a certificate
of service when it serves any discovery document.” L.R. 26.3(b). Defendant never filed a certificate of service for
its initial responses to Plaintiffs’ First Request for Production of Documents. Further, in response to Plaintiffs’ motion,
Defendant does not affirmatively state it served said responses. See Doc. 588. Nor does Defendant indicate it
responded to Plaintiffs’ counsel request to meet and confer to discuss access to the payroll software. See id.
II. RELEVANT RULES
The parties’ motions implicate Rules 26, 34, and 37 of the Federal Rules of Civil Procedure
and the Court’s Local Rule 37.1.
A. Rule 26
Rule 26 requires certain initial disclosures that “a party must, without awaiting a discovery
request, provide to the other parties.” Fed. R. Civ. P. 26(a)(1)(A). Initial disclosures must be
served within fourteen days of the parties’ Rule 26(f) conference unless otherwise directed by the
Court. Fed. R. Civ. P. 26(a)(1)(C). Relevant to this matter, a party must disclose the following:
[A] computation of each category of damages claimed by the disclosing party –
who must also make available for inspection and copying as under Rule 34 the
documents or other evidentiary material, unless privileged or protected from
disclosure, on which each computation is based, including materials bearing on the
nature and extent of injuries suffered[.]
Fed. R. Civ. P. 26(a)(1)(A)(iii). If a party “learns that in some material respect” a Rule 26(a) initial
disclosure or discovery response is “incomplete or incorrect” and “the additional or corrective
information has not otherwise been made known to the other part[y] during the discovery process
or in writing,” the party must supplement or correct the disclosure or response “in a timely manner”
or “as ordered by the court.” Fed. R. Civ. P. 26(e)(1)(A)-(B).
B. Rule 34
Rule 34 governs, inter alia, requests for inspection and production of documents. Fed. R.
Civ. P. 34(a). The responding party must “either state that inspection and related activities will be
permitted as requested or state with specificity the grounds for objecting to the request, including
the reasons.” Fed. R. Civ. P. 34(b)(2)(B). “An objection to part of a request must specify the part
and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). A party has thirty days to respond
to said requests. Fed. R. Civ. P. 34(b)(2)(A).
C. Rule 37
Rule 37 pertains to motions asking the Court to compel disclosure or discovery. Fed. R.
Civ. P. 37. A motion to compel disclosure or discovery “must include a certification that the
movant has in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). If
a court compels disclosure or discovery, it may order the nonprevailing party to pay the prevailing
party’s reasonable expenses incurred in making or defending the motion. Fed. R. Civ. P. 37(a)(5).
“If a party fails to provide information…as required by Rule 26(a) or (e), the party is not
allowed to use that information…to supply evidence…at trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “[O]n motion and after giving an opportunity
to be heard,” the court, in addition to or instead of the foregoing sanction, may require the
noncompliant party to pay “reasonable expenses, including attorney’s fees, caused by the failure”
or “impose other appropriate sanctions.” Fed. R. Civ. P. 37(c)(1)(A)-(C).
If a party fails to respond to a request for inspection or production, the party may be
sanctioned. Fed. R. Civ. P. 37(d)(1). When seeking sanctions against the nonresponsive party,
the movant must certify it “has in good faith conferred or attempted to confer with the party failing
to act in an effort to obtain the…response without court action.” Fed. R. Civ. P. 37(d)(1)(A). The
Court may sanction the nonresponsive party by, among other things, striking pleadings, dismissing
the action, prohibiting the nonresponsive party from supporting its claim/defense, and requiring
the nonresponsive party to pay reasonable expenses and fees caused by its failure. Fed. R. Civ. P.
37(b)(2)(A)(i), 37(d)(3).
D. Local Rule 37.1
In this Court, there are two prerequisites for filing a discovery motion. L.R. 37.1. First,
the moving party’s attorney must, “in good faith, confer [ ] or attempt [ ] to confer by telephone or
in person with opposing counsel concerning the matter.” L.R. 37.1(a)(1). To satisfy the meet and
confer requirement, the attorney must “do more than merely write a demand letter.” Id. Second,
“If the issues remain unresolved after the attorney has satisfied Rule 37.1(a)(1), the attorney must
arrange with the Court for an immediate telephone conference with the judge and opposing
counsel.” L.R. 37.1(a)(2).
III. DISCUSSION
Both pending motions pertain to Plaintiffs’ damages. Defendant argues Plaintiffs failed to
provide computation of their damages, and Plaintiffs contend Defendant did not provide the
necessary information and/or access to its payroll software for Plaintiffs to provide more detailed
damages. Regardless, the parties raise issues that should have been addressed and resolved before
discovery closed in July 2020. Now, the parties are weeks from trying this matter, and the Court
must resolve these untimely discovery issues.
A. Purpose of Discovery
The purpose of “discovery procedure is to narrow the issues, to eliminate surprise, and to
achieve substantial justice.” Mabey v. United States, 999 F.2d 1252, 1254 (8th Cir. 1993) (quoting
Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968) (emphasis supplied)).
Discovery is “meant to insure…parties can obtain ‘[m]utual knowledge of all the relevant facts
gathered by both parties.’” Id. (quoting Greyhound Lines, 402 F.2d at 143). Because of Rules 26
through 37 of the Federal Rules of Civil Procedure, “[t]he way is now clear . . . for the parties to
obtain the fullest possible knowledge of the issues and facts before trial.” Hickman v. Taylor, 329
U.S. 495, 501 (1947). But issues cannot be narrowed, surprises cannot be eliminated, mutual
knowledge of the relevant facts cannot be obtained, and substantial justice cannot be achieved
unless the parties and their attorneys satisfy the discovery rule requirements. With these tenets in
mind, the Court turns to the pending motions.
B. Defendant’s Motion
Defendant moves to exclude evidence of Plaintiffs’ damages at trial because they failed to
comply with Rule 26(a)’s requirement to provide “a computation of each category of damages
claimed.” Fed. R. Civ. P. 26(a)(1)(A)(iii). Plaintiffs served initial disclosures on July 28, 2020.4
Related to damages, Plaintiffs explained they needed additional documents from Defendant but
provided the “annual wage underpayment” for each collective action member for 2016 through
2019. See Doc. 584-1. Defendant argues Plaintiffs’ disclosure does not include a “computation
of each category of damages” they claim. See Doc. 584.
“Computation” is not defined in Rule 26, and neither party cites an Eighth Circuit decision
where the term is defined. See Docs. 584, 591. An advisory committee note to the 1993
amendments to Rule 26 indicates a party must make available for inspection and copying any
documents supporting the party’s “calculation” of damages. Fed. R. Civ. P. 26(a)(1) advisory
committee’s note to 1993 amendment. Calculation, however, is not defined.
Nonetheless, this Court and other courts have discussed these terms. In Gillespie v. Block
Maintenance Solutions, the Honorable Greg Kays explained a party satisfies Rule 26(a)(1)(A)(iii)
if the party “provide[s] a summary of damages calculations for each individual claim and a total
4 Neither party addresses why Plaintiffs did not serve their initial disclosures within fourteen days of the parties’ Rule
26(f) conference, which occurred sometime before May 7, 2019 (see Doc. 7 at 1), or why Plaintiffs’ initial disclosures
were not served until after discovery closed on July 24, 2020 (see Doc. 45 at 7). In addition, there is no certificate of
service, contrary to Local Rule 26.3(b)’s requirement, establishing Defendant served its initial disclosures. Thus, it is
unknown if Defendant served its initial disclosures.
amount of damages sought.” No. 12-947-CV-W-DGK, 2013 WL 6199198, at *2 (W.D. Mo. Nov.
27, 2013). Judge Kays ordered the plaintiff to provide “a separate computation for each claim that
clearly demonstrates, with numerical figures, how Plaintiff calculated the amount of damages” and
“how he arrived at the particular amount.” Id. The computation could “be accomplished by
demonstrating the number of hours worked (in addition to providing a fair estimation of hours that
will be worked) multiplied by the hourly rate.” Id.
Similarly, other courts have determined a computation of damages under Rule 26(a) should
include “some analysis,” “specific dollar amounts and the computations supporting the amounts
requested,” something “more than a mere dollar amount” or a “lump sum,” or “the basic method
or formula” for calculating damages.” See, e.g., Liberty Ins. Underwriters, Inc. v. Beaufurn, LLC,
No. 1:16CV1377, 2021 WL 2109479, at *5 (M.D.N.C. May 25, 2021) (collecting cases); Cardoza
v. Bloomin’ Brands, Inc., No. 2:13-cv-01820-JAD-NJK, 2015 WL 3875916, at *2 (D. Nev. June
22, 2015) (citations omitted); Stemrich v. Zabiyaka, No. 1:12-CV-1409, 2013 WL 4080310, at *1-
3 (M.D. Pa. Aug. 13, 2013); Majdalani v. Legacy Bank, No. 06-1317-MLB, 2007 WL 2694043,
at *2 (D. Kan. 2007); Doggett v. Perez, No. CS-02-282-AAM, 2004 WL 2939600, at *5 (E.D.
Wash. Mar. 4, 2004) (citation omitted); City & Cnty. of San Francisco v. Tutor-Saliba Corp., 218
F.R.D. 219, 221 (N.D. Cal. 2003) (citations omitted).
(1) Underpayment of Overtime Compensation Damages
Defendant contends Plaintiffs’ damage disclosures related to underpayment of overtime
compensation are akin to those in Carmody v. Kansas City Board of Police Commissioners, 713
F.3d 401 (8th Cir. 2013). Doc. 584 at 2, 4-5, 7. In Carmody, police officers, in response to a
summary judgment motion, submitted affidavits that provided for the first time the number of
uncompensated hours they had worked and the amount of money they believed they were owed.
713 F.3d at 404. Prior to these affidavits, the officers never “suggest[ed] the number of
uncompensated hours or the amount of money owed.” Id. They claimed they needed access to
the defendant’s documents to provide said information. Id.
In Carmody, the defendant moved to strike the affidavits, arguing the officers failed to
comply with their Rule 26 obligations. Id. The district court struck the affidavits because their
timing was “extremely prejudicial” to the defendant, admitting the affidavits probably would have
required reopening discovery and would have prolonged the litigation, and a continuance would
not have alleviated the prejudice to the defendant. Id. at 404-05. The district court recognized
striking the affidavits was tantamount to dismissal but found “lesser sanctions would not
adequately penalize the plaintiffs.” Id. at 405. The Eighth Circuit affirmed the decision. Id.
The case before this Court differs from Carmody. The officers in Carmody initially
provided no indication as to the amount of unpaid overtime they claimed they were owed. It was
not until they were responding to a summary judgment motion that they provided any information
about their alleged unpaid overtime compensation. Here, Plaintiffs’ initial disclosures included
the annual amount of underpayment of overtime compensation for each collective action member
for 2016 through 2019. From at least July 2020, Defendant has known what Plaintiffs claimed as
underpayment of overtime compensation for each collective action member for 2016 through
2019. Thus, Defendant has not suffered the surprise and prejudice as the defendant in Carmody.
Accordingly, Defendant’s reliance on Carmody is misplaced.
While they disclosed the annual underpayment of overtime compensation, Plaintiffs failed
to include any calculation or computation showing how they arrived at the annual sums for each
collective action member. In this regard, Plaintiffs did not provide their “computation” of damages
as required by Rule 26(a)(1)(A)(iii). By failing to disclose this required information, the Court
cannot allow Plaintiffs to use the information at trial “unless the failure was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1). When determining whether a party’s noncompliance
with Rule 26(a) is substantially justified or harmless, this Court considers several factors including,
but not limited to, the reason for noncompliance, the prejudice or surprise to the opposing party,
the ability to cure the prejudice, the extent to which allowing the information would disrupt the
trial, the importance of the information, and the moving party’s bad faith or willfulness. See
Rodrick v. Wal-Mart Stores E., L.P., 666 F.3d 1093, 1096-97 (8th Cir. 2012) (citation omitted);
Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). But the Eighth Circuit has declared the
“[e]xclusion of evidence is a harsh penalty, and should be used sparingly.” ELCA Enters., Inc. v.
Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 190 (8th Cir. 1995); see also Heartland Bank v.
Heartland Home Fin., Inc., 335 F.3d 810, 817 (8th Cir. 2003).
Defendant contends Plaintiffs’ failure is not substantially justified or harmless because they
have had the necessary information since November 2019 to disclose the initial calculation of
damages. Doc. 584 at 5. Defendants provided supplemental payroll information to Plaintiffs in
September 2020 and November 2021, but they have not provided their calculation of damages. Id.
at 5-6. For these reasons, Defendant maintains Plaintiffs’ failure is not justified. Id. Plaintiffs
argue they could not provide additional information until they received additional discovery, which
they “repeatedly sought,” from Defendant. Doc. 591 at 9-10. It is unclear from Plaintiffs’ brief
as to whether they are referring to access to Defendant’s payroll software or other discovery.
Defendant also argues Plaintiffs’ failure is not harmless. Doc. 584 at 5. It contends it “has
been unable to mediate this case at all due to the lack of damages calculations,” and “unable –
three months before trial – to depose the Plaintiffs’ expert who is supposedly working on damages
calculations.” Id. (emphasis in original). Defendant also avers it has been unable to (1) “examine
the formulas by which” Plaintiffs’ damages were calculated, (2) “impeach the method by which
the damages were supposedly calculated,” (3) “name a rebuttal expert to present an alternative
calculation of damages,” and (4) “make an offer of judgment which may have truncated damages
at any point during the litigation.” Id. at 6. Defendant argues “if the damage calculations are not
struck, then discovery would likely have to be reopened so that the City could do the work deposing
Plaintiffs’ expert that should have been done during discovery.” Id.5
Plaintiffs represent Defendant “never propounded any written discovery on the Plaintiffs,
never sought any depositions until after the close of discovery, and failed to file a single motion to
compel any information from the Plaintiffs.” Doc. 591 at 10. They argue Defendant’s “passive
participation in discovery makes it difficult to conclude…Plaintiffs’ shortcomings substantially
prejudiced” Defendant. Id. Plaintiffs also point out that although their expert was designated on
October 1, 2019, Defendant has never expressed an interest in deposing him. Doc. 591 at 6; see
also Doc. 12.6 They argue Defendant waived its opportunity to take their expert’s deposition and
“now seeks to use its inattentiveness as an argument to strike Plaintiffs’ damages.” Id.
The Court has carefully considered whether Plaintiffs’ noncompliance was substantially
justified and/or harmless. Without a doubt, information related to Plaintiffs’ damages is important.
How Plaintiffs calculated their underpayment of overtime compensation should not surprise
Defendant because how overtime compensation is calculated is set forth by statute, 29 U.S.C. §
5 In an exhibit attached to Defendant’s Motion in Limine, defense counsel refers to Defendant’s expert in an email to
Plaintiffs’ counsel. Doc. 584-2 at 2. Therein, she stated, “we haven’t provided anything to our expert that hasn’t
already been provided to you.” Id. Accordingly, it appears both experts had the same information.
6 The Court notes Defendant moved to strike or exclude Plaintiffs’ expert in December 2019 because, among other
things, he “set forth a methodology for calculating damages, but, apparently given the City’s data (represented to be
sufficient almost two months ago), could not apply that methodology at all to the facts at issue,” and therefore, his
“damages calculation . . . should not be allowed at trial.” Doc. 33 at 8. In January 2020, the Court granted in part
Plaintiffs’ motion to certify this collective action. Doc. 45. In the same Order, the Court denied the parties’ motions
to exclude the opposing party’s expert as moot and set a deadline for the parties’ experts to supplement or file new
reports. Id. at 7. After discovery closed in July 2020, Defendant did not refile its motion to strike or exclude Plaintiffs’
expert.
207(k), which Defendant cited in its October 2020 summary judgment motion and in its November
2020 opposition to Plaintiffs’ summary judgment motion. Doc. 559 at 13; Doc. 560 at 7. In
addition, Plaintiffs explained how their regular rates and overtime rates were properly calculated
in its summary judgment motion filed in October 2020. Doc. 557 at 12-14.
Further, Plaintiffs’ noncompliance was based, in part, on Defendant’s purported failure to
provide additional information and/or access to its payroll software. But Plaintiffs are also
partially at fault in this regard. Although Plaintiffs’ counsel sent a letter in 2019, there appears to
have been no follow up about the information and/or access that was needed until after the Court’s
summary judgment order was issued.
Finally, any prejudice Defendant may suffer due to the Court allowing evidence of
Plaintiffs’ computation of damages is due, in part, to Defendant’s failure to (1) communicate with
Plaintiffs’ counsel in July 2020 (or anytime thereafter) about the lack of calculations; (2) contact
the Court for the discovery teleconference after meeting and conferring with Plaintiffs’ counsel
and unsuccessfully resolving the issue; (3) engage in any written discovery; and (4) depose
Plaintiffs’ expert or any collective action member during discovery. Communications between
counsel on this issue, in all likelihood, would have resolved this issue years ago.
For the foregoing reasons, the Court finds Plaintiffs’ failure to comply Rule
26(a)(1)(A)(iii)’s computation of damages requirement related to their underpayment of overtime
compensation was substantially justified and harmless. Thus, Defendant’s motion to exclude
evidence of Plaintiffs’ underpayment of overtime compensation is DENIED.
The Court’s finding, however, does not excuse Plaintiffs from supplementing their Rule
26(a)(1)(A)(iii) initial disclosures to include computations for underpayment of overtime
compensation. By February 4, 2022, Plaintiffs shall supplement their Rule 26(a)(1)(A)(iii) initial
disclosures to include computations as to each collective action member’s underpayment of
overtime compensation for each applicable year. The computations should include numerical
figures that demonstrate how Plaintiffs arrived at the total amount of underpayment of overtime
compensation for each person for each year. Each computation should reflect the calculation
method used by Plaintiffs to arrive at the damages amount. Any failure to comply with this Order
may result in the Court imposing sanctions.
(2) Willfulness Damages
Defendant also asks the Court to exclude evidence of “willfulness damages” at trial because
Plaintiffs’ Rule 26(a) initial disclosures did not include those damages. Doc. 584 at 2, 4.7 It is
unclear what “willfulness damages” Defendant seeks to exclude. While the statute of limitations
may be extended from two years to three years if an employer willfully violated the FLSA, the
Court is unaware of a provision permitting “willfulness damages.” 29 U.S.C. § 255(a). To the
extent Defendant is moving to exclude evidence of its alleged willfulness, that request is DENIED.
(3) Liquidated Damages
Defendant moves to exclude evidence of liquidated damages at trial because Plaintiffs’
Rule 26(a) initial disclosures did not include liquidated damages. Doc. 584 at 4. If an employer
violates 29 U.S.C. § 207, it is liable to the affected employees in the amount of unpaid overtime
compensation and may also be liable for “an additional equal amount as liquidated damages.” 29
U.S.C. § 216(b). The amount of liquidated damages, if awarded, is the same as the amount of
unpaid overtime compensation. Id.
7 Defendant also asks the Court to exclude “willfulness damages” and “liquidated damages” from the final judgment
in this matter due to Plaintiffs’ failure to include these damages in their initial disclosures. Doc. 584 at 4. This related
request is DENIED for the same reasons the Court denies Defendant’s motion to exclude evidence of these damages.
Although Plaintiffs’ Rule 26(a) initial disclosures did not list liquidated damages as a
category of damages it sought to recover in this matter, Defendant has known since January, when
it was served with this lawsuit, that Plaintiffs sought liquidated damages. Doc. 1 at 1; Doc. 1-1 at
10. And, given that Defendant sought summary judgment on the issue of liquidated damages, it
was well aware that Plaintiffs sought liquidated damages. Doc. 559 at 29-30. Defendant’s notice
eliminates any unfair surprise or prejudice caused by Plaintiffs’ failure to include liquidated
damages in their initial disclosures. See, e.g., Grant v. Shaw Env’t, Inc., No. 3:08-CV-350, 2012
WL 1059944, at *2-3 (E.D. Tenn. Mar. 28, 2012) (denying the defendant’s motion to exclude
prejudgment interest based on the plaintiff’s failure to include prejudgment interest in his initial
disclosures because the failure was harmless, and the defendant was on notice that the plaintiff
sought prejudgment interest because it was included in his complaint); Ellert v. Chipotle Mexican
Grill, Inc., No. 1:07CV026, 2008 WL 11351569, at *2 (S.D. Ohio Dec. 16, 2008) (finding that
although the plaintiffs’ initial disclosures did not include liquidated damages, the defendant was
“clearly on notice” that liquidated damages could be awarded because the applicable statute stated
liquidated damages shall be awarded).
Further, while Plaintiffs did not include a calculation as to the liquidated damages, the
amount, as explained above, is set by statute and will not exceed the amount of unpaid overtime
compensation. Because Defendant has known throughout this lawsuit that Plaintiffs sought
liquidated damages and any liquidated damages award will not exceed the unpaid overtime
compensation, Plaintiffs’ failure to include liquidated damages or a calculation thereof was
harmless. Therefore, Defendant’s motion to exclude evidence of liquidated damages is DENIED.
(4) Attorneys’ Fees
Finally, Defendant moves to exclude evidence of Plaintiffs’ attorneys’ fees at trial as well
as exclusion of an award of attorneys’ fees from any final judgment because Plaintiffs’ Rule 26(a)
initial disclosures did not include attorneys’ fees. Doc. 584 at 4. The Eighth Circuit has held, “[a]
computation of attorney’s fees is simply not a required disclosure under Federal Rule of Civil
Procedure 26(a).” Smith v. AS Am., Inc., 829 F.3d 616, 624 (8th Cir. 2016) (citation omitted). The
Court noted, “the amount of attorneys’ fees requested has nothing to do with the merits of
the…lawsuit,” and a court cannot begin to determine entitlement to fees until one party has
prevailed. Id. (citation omitted). Based on Smith, Defendant’s request to exclude attorneys’ fees
is DENIED.
C. Plaintiffs’ Motion
Plaintiffs’ motion pertains to their May 2019 request to inspect Defendant’s payroll
software. Doc. 586. Both Local Rule 37.1 and Rule 37 of the Federal Rules of Civil Procedure
require a party to confer in good faith with the opposing party to resolve the dispute before filing
a motion to compel discovery. L.R. 37.1(a)(1); Fed. R. Civ. P. 37(a)(1). As set forth supra, section
I(E)(2), Plaintiffs’ counsel sent a letter to defense counsel inquiring about Defendant’s failure to
respond to the request. Although Local Rule 37.1 requires an attorney to “do more than merely
write a demand letter” before filing a motion seeking discovery, it appears, based on the record
before the Court, that letter was the only communication sent about the issue.
Although discovery continued for another twelve months after Plaintiffs’ counsel sent the
letter, the issue was not addressed by the parties, or if they addressed the issue, it was not resolved.
Once the parties were unable to resolve the issue, Plaintiffs’ counsel was required to contact the
Court to schedule a discovery teleconference. See Doc. 8 at 1-2; L.R. 37.1. Based on the docket,
no discovery teleconference was ever conducted. Now, nearly one and one-half years have passed
since counsel sent a letter to Defendant about the request.
The Court is troubled by Plaintiffs’ counsel’s failure to communicate further with defense
counsel to resolve the dispute, particularly since they assert access to the software contains “critical
variables” necessary for verifying damages. Doc. 592 at 3. After the parties failed to resolve the
dispute, Plaintiffs’ counsel should have contacted the Court to schedule a teleconference. As such,
Plaintiffs failed to comply with the federal and local rules. And Plaintiffs provide no reason as to
why the Court should excuse their noncompliance. Thus, Plaintiffs’ motion is DENIED.
Although not set forth in their motion, Plaintiffs sought an alternative remedy in their reply
brief. Doc. 592 at 5-6. They ask the Court to direct Defendant to provide a report of total hours
worked in excess of 212 hours per 28-day work period for each collective action member. Id.8 In
support, Plaintiffs include a report they claim was “produced” by “Payroll Administrator Mary
Madick” in November 2018. Id. at 5; Doc. 592-2. With such a report, Plaintiffs can calculate
overtime and check the accuracy of their Rule 26 initial disclosures. Id. at 5.
Unfortunately, this alternative request was not asserted until Plaintiffs’ reply brief. As
such, Defendant was not afforded an opportunity to respond. The Court requests Defendant’s
input on Plaintiffs’ alternative request. By January 28, 2022, Defendant shall file a Notice of
Filing stating whether it can generate a report of total hours worked in excess of 212 hours per 28-
day work period for each collective action member during the relevant timeframe. If the report
can be generated, Defendant shall state how much time it will take it to run the report.
8 In their reply, Plaintiffs refer to “overtime hours per pay period” and “total hours in excess of 212 per 28-day pay
cycle.” Doc. 592 at 5-6. The parties previously stipulated that the collective action members are paid biweekly but
have a “normal FLSA work period” of 28 days and are paid the overtime rate “for all hours actually worked in excess
of 212 hours in any 28-day work period.” Doc. 554 at 1-2. Accordingly, the Court presumes Plaintiffs are requesting
a report identifying overtime hours worked for each 28-day work period for every collective action member.
D. Plaintiffs’ Response and “Amended/Redacted” Response to Defendant’s Motion
On December 29, 2021, Plaintiffs filed their response to Defendants’ Motion in Limine.
Doc. 589. That response, however, included information or communications shared during
mediation. In doing so, Plaintiffs and their counsel violated the Court’s General Order for the
Mediation and Assessment Program (“General Order”).
The General Order directs parties and their counsel to “treat as confidential the contents of
any written mediation statement and anything said in mediation, including any position taken and
any views of the case as expressed by any participant or Mediator.” W. Dist. of Mo., General
Order for Mediation & Assessment Program, at 11 (Nov. 14, 2019), available at https://www.mow.
uscourts.gov/sites/mow/files/MAP_GO.pdf. Relevant here, parties and their counsel shall not
divulge confidential information to anyone who is not involved in the litigation or the assigned
judge. Id. If a party or counsel fails to comply “with the provisions and spirit” of the General
Order, the assigned judge may impose sanctions. Id. at 12.
In addition to including confidential information, Plaintiffs’ response attached an exhibit
that was filed under seal. Doc. 589-3. Parties, however, are not permitted to file anything under
seal without first obtaining leave of Court to do so. W. Dist. of Mo., CM/ECF Civil & Criminal
Administrative Procedures Manual & Users Guide, at 8 (Jan. 1, 2018), available at https://www.
mow.uscourts.gov/sites/mow/files/AdministrativeGuideandUserManual.pdf. Plaintiffs did not
obtain leave of Court before filing the exhibit under seal.
Presumably because they were notified of the inclusion of confidential information in the
initial response, Plaintiffs filed an “Amended/Redacted” response. Doc. 591. Similar to the sealed
exhibit, Plaintiffs failed to seek leave of Court to file the “Amended/Redacted” response. See L.R.
15.1 (requiring a party to file “a motion or leave to file a…document that may not be filed as a
matter of right”). Upon review and comparison of Plaintiffs’ responses, the Court notes the
“Amended/Redacted” response redacts the mediation-related information or communication, and
the exhibit that was originally filed under seal is now publicly filed.
Although it appears Plaintiffs’ inclusion of the confidential information was not to shed a
negative light on Defendant, the Court is dismayed by Plaintiffs’ violation of the General Order.
Setting aside their failure to seek leave to file an amended response, Plaintiffs’ redaction of the
violative was the proper course of action. However, the initial response – with the violative portion
– remains a part of the record and is accessible by everyone. Consequently, the Clerk of the Court
is directed to strike Plaintiffs’ initial response (Doc. 589) and attachments thereto from the record.
Going forward, Plaintiffs are reminded of their obligations under the General Order. In
addition, if Plaintiffs intend to file something under seal or an amended filing, they must seek and
obtain leave of Court before fling the sealed or amended document.
IV. CONCLUSION
For the foregoing reasons, both motions are DENIED. By January 28, 2022, Defendant
shall inform the Court as to whether it can generate a report of overtime hours worked per work
period for each collective action member during the relevant timeframe. By February 4, 2022,
Plaintiffs shall serve their supplemental Rule 26(a)(1)(A)(iii) initial disclosures. Finally, the
Clerk’s Office is directed to strike Plaintiffs’ response (Doc. 589) and attachments thereto to
Defendant’s Motion in Limine.
IT IS SO ORDERED.
DATE: January 24, 2022 /s/ W. Brian Gaddy
W. BRIAN GADDY
UNITED STATES MAGISTRATE JUDGE