Hager v. Omnicare, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT BECKLEY

CATHY L. HAGER,

Plaintiff,

v. CIVIL ACTION NO. 5:19-cv-00484

OMNICARE, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending are Plaintiff Cathy L. Hager’s Motion for Conditional Certification of

Collective Action and Court-Supervised Notice Pursuant to 29 U.S.C. § 216(b) (“motion for

conditional certification”) [Doc. 32], filed January 10, 2020, and Defendant Omnicare, Inc.’s

(“Omnicare”) Motion to Strike the Notice of Consent Filed by Eugene Messick and to Dismiss

Him Without Prejudice (“motion to strike”), filed January 24, 2020. [Doc. 36].

Omnicare responded to Ms. Hager’s motion for conditional certification on January

24, 2020, and Ms. Hager replied on January 31, 2020. [Docs. 35, 39]. Ms. Hager responded to

Omnicare’s motion to strike on February 7, 2020, and Omnicare replied on February 14, 2020.

[Docs. 40, 41].

I.

On June 28, 2019, Ms. Hager, on behalf of herself and others similarly situated,

instituted this putative nationwide collective action against Omnicare. Ms. Hager alleges Omnicare

violated the Fair Labor Standards Act (“FLSA”) by misclassifying its employees as independent

contractors and failing to pay them minimum wages and overtime compensation. Ms. Hager now

seeks conditional certification of the putative nationwide class and court-supervised notice. Ms.

Hager moves the Court to define the class as follows1:

All individuals who delivered pharmaceutical products for Omnicare nationwide to

Omnicare’s customers, clients, or business partners, (from June 28, 2016 to the date

the Court authorizes notice), and who were classified as independent contractors.

On January 16, 2020, a notice of consent was filed by the first opt-in plaintiff,

Eugene Messick, an Ohio resident. As noted, Omnicare asserts that conditional class certification

is improper and has moved to strike Mr. Messick’s notice of consent and dismiss him without

prejudice. The Court will first address the motion to strike and then turn to whether conditional

certification is proper.

II.

A. Motion to Strike

On January 10, 2020, Omnicare moved to strike Mr. Messick’s notice of consent

and dismiss him without prejudice based on lack of personal jurisdiction. Specifically, Omnicare

contends that the Court lacks personal jurisdiction over it as to the claims of any putative class

member who did not work for delivery companies in West Virginia. Inasmuch as Mr. Messick is

an Ohio resident and general jurisdiction over Omnicare is lacking, Omnicare asserts that he, and

all other nonresident opt-in plaintiffs, must establish specific jurisdiction for each of their claims.

Omnicare contends that Mr. Messick is unable to satisfy the requirements for specific jurisdiction

given that he asserts in his notice of consent that he has only performed deliveries in Ohio.

1 In her complaint, Ms. Hager excludes drivers who have performed delivery work “in the

State of Kentucky for Home Care Pharmacy, LLC; D&R Pharmaceutical Services, LLC; or Three

Forks Apothecary, LLC and were based in Ashland, Beattyville, or Lexington, Kentucky” given a

previously filed FLSA action in Kentucky, asserting FLSA claims on behalf of all delivery drivers

of Omnicare working for these entities. [Doc. 1 at 2].

Omnicare contends there is no nexus between the wages Mr. Messick received and Omnicare’s

actions in West Virginia; thus, his notice of consent should be stricken, and he should be dismissed

without prejudice. In support of these assertions, Omnicare relies entirely on the United States

Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct.

1773 (2017) and its application to FLSA collective actions by other district courts.

On February 7, 2020, Ms. Hager responded that Omnicare’s Bristol-Myers Squibb

argument is without merit, and its motion to strike should be denied. Specifically, Ms. Hager

contends this Court, and its sister districts within the Fourth Circuit, have conclusively held that

Bristol-Myers Squibb is inapplicable to class and collective actions in federal court. Additionally,

Ms. Hager objects to Omnicare’s motion as “superfluous” given that it “raised the exact same

erroneous arguments under [Bristol-Myers Squibb] in its contemporaneously filed opposition to

[Ms. Hager’s] motion for conditional certification.” [Doc. 40 at 1]. Omnicare reasserts many of

the same arguments made in its original motion in its reply.

1. Personal Jurisdiction Standard

Federal Rule of Civil Procedure 12 provides that “a party may assert the lack of

personal jurisdiction” by motion. Fed. R. Civ. P. 12(b)(2). During the early stages of a case,

“[w]hen a district court considers a question of personal jurisdiction based on the contents of a

complaint and supporting affidavits, the plaintiff has the burden of making a prima facie showing

in support of its assertion of jurisdiction.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553,

558 (4th Cir. 2014) (citations omitted). This analysis “resembles the plausibility inquiry governing

motions to dismiss for failure to state a claim under Rule 12(b)(6).” Hawkins v. i-TV Digitalis

Tavkozlesi zrt., 935 F.3d 211, 226 (4th Cir. 2019).

Accordingly, the Court attributes to “the plaintiffs’ allegations a favorable

presumption, taking the allegations in the light most favorable to the plaintiff.” Sneha Media &

Entm’t, LLC v. Associated Broad. Co., 911 F.3d 192, 196 (4th Cir. 2018). But, “[u]nlike under

Rule 12(b)(6), the court may also consider affidavits submitted by both parties, although it must

resolve all factual disputes and draw all reasonable inferences in favor of the party asserting

jurisdiction.” Hawkins, 935 F.3d at 226; see also Universal Leather, 773 F.3d at 560 (requiring

courts to “assume the credibility of [the plaintiff’s] version of the facts, and to construe any

conflicting facts in the parties’ affidavits and declarations in the light most favorable to [the

plaintiff].”). Ultimately, “if the court denies a Rule 12(b)(2) motion under the prima facie standard,

it can later revisit the jurisdictional issue when a fuller record is presented because the plaintiff

‘bears the burden of demonstrating personal jurisdiction at every stage following [the defendant’s

jurisdictional] challenge.’” Sneha Media, 911 F.3d at 196–97 (quoting Grayson v. Anderson, 816

F.3d 262, 267 (4th Cir. 2016)).

The Court may properly exercise jurisdiction over a foreign corporation only if: (1)

jurisdiction is authorized by West Virginia’s long-arm statute; and (2) application of the West

Virginia long-arm statute is consistent with the Due Process clause. See ESAB Grp., Inc. v. Zurich,

Ins. PLC, 685 F.3d 376, 391 (4th Cir. 2012). But “[i]t is important to recognize at the outset that

personal jurisdiction in a case in which subject matter jurisdiction is based on diversity jurisdiction

(28 U.S.C. § 1332) is different than in a case [, such as this one,] in which it is based on federal

question jurisdiction (28 U.S.C. § 1331).” O'Quinn v. TransCanada USA Servs., Inc., No. 2:19-

CV-00844, --- F. Supp. 3d ----, ----, 2020 WL 3497491, at *11 (S.D.W. Va. June 29, 2020) (citing

Johnson Creative Arts, Inc., v. Wool Masters, Inc., 743 F.2d 947, 950 (1st Cir. 1984)).

Indeed, “the applicable constitutional provision limiting a federal court’s exercise

of personal jurisdiction in federal question cases is not the Fourteenth Amendment, but the Fifth

Amendment.” Weinstein v. Todd Marine Enterprises, Inc., 115 F. Supp. 2d 668, 671 (E.D. Va.

2000) (citing Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 102-03 (1987)). The Due

Process Clause, however, is “not the only limit on a federal court’s in personam jurisdiction in

such cases.” Id. Rather, “when there is no provision authorizing nationwide service, federal courts

must also follow Rule (4)(k) of the Federal Rules of Civil Procedure, which, inter alia, limits the

court’s exercise of personal jurisdiction to persons who can be reached by the forum state’s

longarm statute.” Id. Thus, inasmuch as the FLSA “is silent on the availability of nationwide

service of process, such service is governed by the forum state’s long-arm statute.” Waters v. Day

& Zimmerman NPS, Inc., No. 19-11585-NMG, --- F. Supp. 3d ----, ----, 2020 WL 2924031, at *2

(D. Mass. June 2, 2020). Accordingly, the Court must conduct the same personal jurisdiction

analysis as in a diversity case pursuant to West Virginia’s long-arm statute.

West Virginia’s long-arm statute “is coextensive with the full reach of due

process;” thus, “the statutory inquiry . . . merges with the Constitutional inquiry.” In re Celotex

Corp., 124 F.3d 619, 627–628 (4th Cir. 1997). In determining whether exercising personal

jurisdiction over a foreign defendant is consistent with due process, the Court must determine

“whether the defendant has such ‘minimal contacts’ with the forum state that ‘maintenance of the

suit does not offend traditional notions of fair play and substantial justice.’” Dirs., First Church of

Christ v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001) (citing Int’l Shoe Co. v. Washington, 326 U.S.

310, 316 (1945)).

“Under the Fourteenth Amendment’s Due Process clause, there are two paths

permitting a court to assert personal jurisdiction over a nonresident defendant.” Universal Leather,

773 F.3d at 559 (citations omitted). The first, general jurisdiction, allows a court to “hear any and

all claims against [foreign corporations] when their affiliations with the State are so ‘continuous

and systematic’ as to render them essentially at home in the forum State.” Daimler AG v. Bauman,

571 U.S. 117, 127 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 919 (2011)). “The paradigm forums in which a corporate defendant is at home . . . are the

corporation’s place of incorporation and its principal place of business.” BNSF Ry. Co. v. Tyrrell,

137 S. Ct. 1549, 1558 (2017) (internal quotation marks omitted).

The second, specific jurisdiction, “may be established if the defendant’s qualifying

contacts with the forum state also constitute the basis for the suit.” Universal Leather, 773 F.3d at

559. The specific jurisdiction analysis “focuses on the relationship among the defendant, the

forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 284 (2014) (internal quotation marks

omitted). To determine whether the exercise of specific jurisdiction is appropriate, our Court of

Appeals requires analysis of “(1) the extent to which the defendant purposefully availed itself of

the privilege of conducting activities in the State; (2) whether the plaintiffs’ claims arise out of

those activities directed at the State; and (3) whether the exercise of personal jurisdiction would

be constitutionally reasonable.” Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 189 (4th Cir. 2016)

(internal quotation marks omitted).

2. Waiver

Ms. Hager passively asserts in two footnotes that Omnicare is barred from raising

the defense of lack of personal jurisdiction inasmuch as it failed to raise the Bristol-Myers Squibb

argument in its prior motion to dismiss her personal claims for lack of personal jurisdiction. The

Court disagrees.

Pursuant to Federal Rule of Civil Procedure 12(g)(2), “a party that makes a motion

under [Rule 12] must not make another motion under this rule raising a defense or objection that

was available to the party but omitted from its early motion.” Fed.R.Civ.P. 12(g)(2). Rule 12(g)

operates in tandem with Rule 12(h), which provides that the defense for lack of personal

jurisdiction is waived “by omitting it from a motion in the circumstances described in Rule

12(g)(2)” or by failing to include it in a responsive pleading. Fed.R.Civ.P. 12(h)(1).

Here, when Omnicare filed its motion to dismiss on August 23, 2019, the only

plaintiff asserting a claim was Ms. Hager, a West Virginia resident. Indeed, it was not until January

16, 2020, that Mr. Messick, the first nonresident opt-in plaintiff, filed his notice of consent. [See

Doc. 34, Ex. A]. Thus, the defense of personal jurisdiction as to any nonresident plaintiff was not

available to Omnicare when it filed its original motion to dismiss. Furthermore, after the Court

denied Omnicare’s motion to dismiss without prejudice, Omnicare filed its answer. In its answer,

Omnicare expressly preserved the personal jurisdiction defense “with respect to both the claims of

[Ms. Hager] or of all other members of the proposed collective [Ms. Hager] purports to represent

(including but not limited to, those individuals who did not perform any alleged work in the State

of West Virginia.)”. [Doc. 28 at 9]. Accordingly, the Court will consider the merits of Omnicare’s

challenge to personal jurisdiction.

3. Application and Applicability of Bristol-Myers Squibb

In Bristol-Myers Squibb, a group of plaintiffs, made up of mostly out-of-state

residents, filed eight separate complaints in California state court against the defendant

pharmaceutical company alleging injuries by one of the defendant’s drugs. 137 S. Ct. at 1777

(2017). The plaintiffs structured their claims as a mass tort action. Id. The nonresident plaintiffs,

however, did not allege that they received the drug from a California source, that they were injured

in California, or that they received treatment for their injuries in California. Id. The Supreme Court

held that the Due Process Clause of the Fourteenth Amendment prohibited California from

exercising specific personal jurisdiction over the defendants with respect to the nonresident

plaintiffs’ claims inasmuch as there was no connection between the forum and the claims at issue.

Id. at 1783-84. The Supreme Court made clear, however, that its decision only concerned “the due

process limits on the exercise of specific jurisdiction by a State,” thus leaving “open the question

whether the Fifth Amendment imposes the same restrictions on the exercise of personal

jurisdiction by a federal court.” Id. Additionally, the Court did not “confront the question whether

its opinion . . . would also apply to a class action in which a plaintiff injured in the forum State

seeks to represent a nationwide class of plaintiffs, not all of whom were injured there.” Id. at 1789

n.4 (Sotomayor, J., dissenting).

At least one of my colleagues in this District, as well as the majority of district

courts that have considered the issue, have determined that Bristol-Myers Squibb is inapplicable

in the Rule 23 context. See Ross v. Huron Law Grp. W. Virginia, PLLC, No. 3:18-0036, 2019 WL

637717, at *4 (S.D.W. Va. Feb. 14, 2019) (rejecting the application of Bristol-Myers to federal

class action claims); Morgan v. U.S. Xpress, Inc., No. 3:17-cv-00085, 2018 WL 3580775, at *3-6

(W.D. Va. July 25, 2018) (holding “Bristol-Myers Squibb’s holding and logic do not extend to the

federal class action context.”); Hicks v. Houston Baptist Univ., No. 5:17-CV-629-FL, 2019 WL

96219, at *5 (E.D.N.C. Jan. 3, 2019) (holding that Bristol-Myers Squibb does not apply to federal

class actions); Munsell v. Colgate-Palmolive Co., No. 19-12512-NMG, --- F. Supp. 3d ----, ----,

2020 WL 2561012, at *8 (D. Mass. May 20, 2020) (concluding Bristol-Myers Squibb does not

apply to Rule 23 class actions given “the distinct differences between the mass tort action in BMS

and a class action.”); Rosenberg v. LoanDepot.com LLC, 435 F. Supp. 3d 308, 326 (D. Mass. 2020)

(declining to extend the reach of Bristol-Meyers Squibb to federal class actions); Murphy v.

Aaron’s, Inc., No. 19-cv-00601-CMA-KLM, 2019 WL 5394050, at *8 (D. Colo. Oct. 22, 2019)

(agreeing “with the majority position and declin[ing] to extend the holding in Bristol-Myers to the

class action at issue.”).

Omnicare contends, however, that the instant matter is distinguishable from the

majority line given that it involves an FLSA collective action, which it asserts is different than a

Rule 23 class action and more analogous to the mass tort action in Bristol-Myers Squibb. To date,

the applicability of Bristol-Myers Squibb to FLSA collective actions has not been directly

addressed by any United States Court of Appeal, and district courts remain split on the issue. See

Pettenato v. Beacon Health Options, Inc., 425 F. Supp. 3d 264, 276 (S.D.N.Y. 2019) (collecting

cases). Indeed, both parties rely on district court decisions from different jurisdictions in support

of their respective arguments.2

Many of the courts that have declined to apply Bristol-Myers Squibb to FLSA

collective actions have followed the reasoning first articulated by the court in Swamy v. Title

Source, Inc., No. C 17-01175 WHA, 2017 WL 5196780 (N.D. Cal. Nov. 10, 2017). See Waters, -

2 See e.g., [Doc. 35] (Omnicare citing Pettenato, 425 F. Supp. 3d 264; Chavira v. OS Rest.

Servs., LLC, No. 18-cv-10029-ADB, 2019 WL 4769101 (D. Mass. Sept. 30, 2019); Rafferty v.

Denny’s, Inc., No. 5:18-cv-2409, 2019 WL 2924998 (N.D. Ohio July 8, 2019); Roy v. FedEx

Ground Package Sys., Inc., 353 F. Supp. 3d 43 (D. Mass. 2018); Maclin v. Reliable Reports of

Tex., Inc., 314 F. Supp. 3d 845 (N.D. Ohio 2018)); [Doc. 39] (Ms. Hager citing Hunt v. Interactive

Med. Specialists, Inc., No. 1:19CV13, 2019 WL 6528594 (N.D.W. Va. Dec. 4, 2019); Morgan v.

Garcia v. Peterson, 319 F. Supp. 3d 863 (S.D. Tex. 2018); Swamy v. Title Source Inc., No. C 17-

01175 WHA, 2017 WL 5196780 (N.D. Cal. Nov. 10, 2017); Seiffert v. Quest Corp., No. CV-18-

70-GF-BBM, 2018 WL 6590836 (D. Mont. Dec. 14, 2018); Mason v. Lumber Liquidators, Inc.,

No. 17-CV-4780 (MKB) (RLM), 2019 WL 3940846 (E.D.N.Y. Aug. 19, 2019); Sanchez v. Launch

Tech. Workforce Sols., LLC, 297 F. Supp. 3d 1360 (N.D. Ga. 2018); Krumm v. Kittrich Corp.,

No. 4:19-CV-182 CDP, 2019 WL 6876059 (E.D. Mo. Dec. 17, 2019)).

-- F. Supp. 3d at ----, 2020 WL 2924031, at *4 (collecting cases). In Swamy, the court reasoned

that FLSA collective actions are distinguishable from the state-law tort claims at issue in Bristol-

Myers Squibb, given that a FLSA action is “a federal claim created by Congress specifically to

address employment practices nationwide.” 2017 WL 5196780, at *2. The court in Swamy further

reasoned that in enacting the FLSA, “Congress created a mechanism for employees to bring their

claims on behalf of other employees who are ‘similarly situated,’ and in no way limited those

claims to in-state plaintiffs.” Id. Additionally, the Swamy court opined that extending Bristol-

Myers Squibb to FLSA collective actions “would splinter most nationwide collective actions,

trespass on the expressed intent of Congress, and greatly diminish the efficacy of FLSA collective

actions as a means to vindicate employees’ rights.” Id.

Furthermore, the Court notes that the only district courts within the Fourth Circuit

to address this issue have declined to extend the holding in Bristol-Myers Squibb to FLSA

collective actions. See O'Quinn, --- F. Supp. 3d at ----, 2020 WL 3497491, at *14; Hunt v.

Interactive Med. Specialists, Inc., No. 1:19CV13, 2019 WL 6528594, at *3 (N.D.W. Va. Dec. 4,

2019). In reaching this conclusion, both the O’Quinn and Hunt courts relied, at least in part, on the

Swamy court’s ultimate conclusion that personal jurisdiction over the defendant as to the claims

brought by the sole named plaintiff was all that was needed “to satisfy the requirement of personal

jurisdiction in an FLSA action.” Hunt, 2019 WL 6528594, at *3 (quoting Swamy, 2017 WL

5196780, at *2).

On the other hand, courts who disagree with the analysis in Swamy do so on the

basis that “opt-in plaintiffs in an FLSA action are ‘more similar to plaintiffs in a mass tort action

than plaintiffs in a class action’ and therefore the application of [Bristol-Myers Squibb] divests

courts of personal jurisdiction over out of state opt-in plaintiffs in FLSA actions.” Waters, --- F.

Supp. 3d at ----, 2020 WL 2924031, at *4 (internal citations omitted). Essentially, these courts note

that the procedural mechanisms associated with Rule 23 class actions and FLSA collective actions

are distinguishable. See Roy v. FedEx Ground Package Sys., Inc., 353 F. Supp. 3d 43, 58-60 (D.

Mass. 2018). For instance, absent class members in a Rule 23 class action are bound by a court’s

judgment unless they choose to opt-out of the class. Id. Whereas, putative plaintiffs in a FLSA

collective action do not become a part of the suit unless they affirmatively opt-in to the class, at

which point, they attain party status, making them more similar to the plaintiffs in a mass tort

action. Id.

While that analysis is not without some force, the Court concludes that Bristol-

Myers Squibb is inapplicable to this case for many of the same reasons expressed by the Swamy

court in its well-reasoned and thorough analysis on the issue. Indeed, the Court is hesitant to extend

Bristol-Myers Squibb to the instant matter inasmuch as it would potentially lead piecemeal

litigation, “greatly diminish[ing] the efficiency of FLSA collective actions as a means to vindicate

employees’ rights.” Swamy, 2017 WL 5196780, at *2. Afterall, “[t]he purpose of a collective

action under the FLSA is to allow plaintiffs to minimize individual expense in pursuing wage

rights through pooled resources and to benefit the judicial system through unitary resolution of

common legal and factual issues arising from the same conduct.” 1 Joseph M. McLaughlin,

McLaughlin on Class Actions § 2:16 (12th ed. 2015). Simply put, “Congress’ purpose in

authorizing § 216(b) was to avoid multiple lawsuits where numerous employees have allegedly

been harmed by a claimed violation or violations of the FLSA by a particular employer.” Prickett

v. DeKalb Cty., 349 F.3d 1294, 1297 (11th Cir. 2003). Extending the holding in Bristol-Myers

Squibb to all FLSA collective actions would effectively erode this purpose and “hand[] one more

tool to corporate defendants determined to prevent the aggregation of individual claims . . .

forc[ing] injured plaintiffs to bear the burden of bringing suit in what will often be far flung

jurisdictions.” Bristol-Myers Squibb Co., 137 S. Ct. 1773, 1789 (Sotomayor, J., dissenting).

Furthermore, the fact that a FLSA collective action “may be, in some ways, similar

to a mass-tort claim does not necessarily lead to the conclusion that [Bristol-Myers Squibb] is

applicable.” Waters, --- F. Supp. 3d at ----, 2020 WL 2924031, at *4. The Supreme Court’s

decision in Bristol-Myers Squibb was rooted in federalism and state sovereignty concerns inherent

in the Fourteenth Amendment’s Due Process Clause, which are wholly inapplicable to the case at

hand. See Bristol-Myers Squibb, 137 S. Ct. at 1779. Indeed, the Supreme Court stressed that

[b]ecause a state court’s assertion of jurisdiction exposes defendants to the State’s

coercive power, it is subject to review for compatibility with the Fourteenth

Amendment’s Due Process Clause, which limits the power of a state court to render

a valid personal judgment against a nonresident defendant.

Id. (internal citations omitted). The Supreme Court went on to emphasize that “restrictions on

personal jurisdiction are more than a guarantee of immunity from inconvenient or distant litigation.

They are a consequence of territorial limitations on the power of respective States.” Id. at 1780.

“But ‘[w]hen a federal court adjudicates a federal question claim, it exercises the sovereign power

of the United States and no federalism problem is presented.’” O’Quinn, --- F. Supp. 3d at ----,

2020 WL 3497491 at *14 (quoting Wright & Miller, Personal Jurisdiction in Federal Question

Cases, 4 Fed. Prac. & Proc. Civ. § 1068.1 (4th ed.)). Accordingly, it is apparent that “the anxiety

surrounding federalism expressed in [Bristol-Myers Squibb] is inapplicable to a FLSA action,

based on federal question jurisdiction and thus the constitutional limitations imposed by the Fifth

Amendment.” Id.

Moreover, in analyzing specific jurisdiction in Bristol-Myers Squibb, the Supreme

Court centered its analysis at the level of the suit. Indeed, the Supreme Court concluded that “[i]n

order for a state court to exercise specific jurisdiction, ‘the suit must ari[se] out of or relat[e] to the

defendant’s contacts with the forum.’” Bristol-Myers Squibb, 137 S. Ct. at 1780 (quoting Daimler,

571 U.S. at 127 (2014)). Unlike in the mass tort context where specific jurisdiction must be met

as to each individual plaintiff, “in an FLSA collective action the suit is between the named plaintiff

and the defendant.” Waters, --- F. Supp. 3d at ----, 2020 WL 2924031, at *4. The fact that putative

plaintiffs in a FLSA collective action must opt-in to join the suit is immaterial inasmuch as it “does

not change the dynamics of the suit which remains between the plaintiff and the defendant.” Id.

In sum, the appropriate jurisdictional analysis is at the level of suit, which is

between Ms. Hager and Omnicare. Omnicare is subject to personal jurisdiction in West Virginia

for the claims brought by Ms. Hager, “the sole named plaintiff in this action, which is all that is

needed to satisfy the requirement of personal jurisdiction in an FLSA collective action.” Swamy,

2017 WL 5196780, at *2; see also [Doc. 26]. Accordingly, the Court DENIES Omnicare’s motion

to strike and to dismiss Mr. Messick without prejudice.

B. Motion to Certify

On January 10, 2020, Ms. Hager moved to certify seeking conditional nationwide

class certification of the proposed collective under the FLSA “to hold Omnicare accountable for

its ongoing failure to pay statutorily mandated minimum wages and overtime premiums to its

pharmaceutical delivery drivers.” [Doc. 33 at 1-2]. In addition to conditional certification, Ms.

Hager moves the Court to issue notice to all potential members of the proposed collective. Ms.

Hager has attached a proposed notice of claim and consent form to be issued to potential plaintiffs

that explains the lawsuit, procedure, and consequences of the decision to opt-in. [See Doc. 33-14,

Ex. L].

Ms. Hager alleges that Omnicare is a for-profit entity that conducts business in at

least forty-seven (47) states, including West Virginia. She asserts that Omnicare sells and

distributes pharmaceutical products and medical devices throughout the United States. To deliver

these products, Ms. Hager alleges that Omnicare subcontracts with regional delivery companies,

“who in turn contract with pharmaceutical delivery drivers who meet the demands of Omnicare’s

comprehensive pharmaceutical and pharmaceutical delivery business.” [Doc. 1 at 1]. Ms. Hager

asserts that she was employed as a delivery driver making deliveries on behalf of Omnicare from

approximately October 2018 to May 17, 2019, and primarily worked out of Omnicare’s Nitro,

West Virginia, location making deliveries in various locations throughout West Virginia.

According to Ms. Hager, Omnicare directs and supervises the delivery drivers

through the intermediary regional delivery companies. She alleges, for example, that Omnicare

requires drug tests for the drivers, retains the power to terminate the drivers, creates mandatory

schedules and routes for the drivers, and closely monitors the drivers. Ms. Hager contends that this

direction and supervision is done both directly by Omnicare, but also indirectly through the third-

party delivery companies “to further [Omnicare’s] business interests and promote compliance with

its policies.” [Doc. 1 at 7]. Although contractual agreements “between drivers and the regional

delivery companies (and the regional delivery companies and [Omnicare]) state that drivers are

not employees of [Omnicare],” Ms. Hager alleges that “the economic reality of the arrangement is

that drivers are actually employees.” [Doc. 1 at 4]. Accordingly, Ms. Hager alleges that Omnicare

has violated the FLSA by misclassifying its delivery drivers nationwide as independent contractors

and by failing to pay them minimum wages and overtime compensation.

Ms. Hager asserts that “Omnicare’s scheme to subcontract with regional delivery

companies across the nation to perform its essential delivery work while evading its employment

obligations” is detailed in the master “Omnicare Courier Agreement” that she has attached to her

motion.3 [Doc. 33 at 6; see also Doc. 32-4, Ex. B]. In further support of these assertions, Ms.

Hager, along with four other employee delivery drivers, submitted declarations detailing their

employment experiences.4 [See Doc. 32, Exs. F-I]. In her declaration, Ms. Hager contends that

she was required to contract with an Omnicare courier company, Dicom, that had subcontracted

with Omnicare in order to perform delivery work for Omnicare. [Doc. 32-7, Ex. E at 2]. As such,

Ms. Hager contends that throughout her tenure as a delivery driver for Omnicare, she has always

been classified as an independent contractor as opposed to an employee. [Id.]. Ms. Hager further

alleges that, based on her discussions with other delivery drivers, she is aware that they, too, are

classified as independent contractors of Omnicare’s courier subcontractors as opposed to

employees of Omnicare. [Id.]. Ms. Hager asserts that, based on her conversations with other

delivery drivers, their working conditions were substantially the same regardless of the courier

company that Omnicare had contracted with. [Id.] Specifically, Ms. Hager alleges that delivery

drivers have “(1) been required to drive their personal vehicles in order to perform the delivery

work on behalf of Omnicare; (2) not been reimbursed for gasoline or any vehicle related expenses;

3 This 2017 agreement is between “CVS Pharmacy, Inc. . . . on its own behalf and on behalf

of its subsidiaries and affiliates, including Omnicare, Inc.” and “Courier.” [Doc. 32-4, Ex. B at 1].

The agreement defines “Courier” as including three different regional courier entities “and their

officers, agents, representatives, contactors, sub-contractors and employees,” encompassing at

least seven (7) states. [Id.]

4 Ms. Hager acknowledges that three out of four of these declarations (Exs. G, H, and I)

were filed as part of other cases and two were created outside the claims period at issue here (Exs.

G and I). Omnicare thus contends that these declarations are irrelevant and should not be

considered. Ms. Hager asserts, however, that these declarations are nonetheless relatively recent

evidence that further illustrates that Omnicare’s misclassification scheme exists nationwide. The

Court agrees with Omnicare and will not consider the declarations attached as Exs. G, H, and I.

(3) never received overtime premiums for hours worked in excess of 40; and (4) always made

deliveries to Omnicare’s customers and clients.” [Id. at 3]

Ms. Hager further contends that delivery drivers are required to drive many miles

to perform their standard assigned delivery routes. [Id.]. Ms. Hager estimates that she drove

approximately five hundred (500) miles per five-day work week to perform her standard assigned

route but was often given ad hoc delivery assignments, requiring her to drive “hundreds of extra

miles per week for Omnicare.” [Id.]. To perform their work for Omnicare, Ms. Hager contends

that delivery drivers arrive at Omnicare’s facilities to pick up Omnicare tote bags that contain

pharmaceutical products to be delivered to Omnicare’s customers that correspond with their

assigned delivery routes. [Id. at 3-4]. Often times, these tote bags would not be complete when

delivery drivers would arrive to perform their standard routes, and delivery drivers would have to

wait at the warehouse until the totes were complete but were not paid additional compensation for

waiting. [Id. at 4]. Additionally, delivery drivers are required to wear a photograph identification

badge, maintain a clean and neat appearance, and wear khakis or similar dress pants when making

deliveries for Omnicare. [Id. at 3].

Ms. Hager estimates that in a five-day work week, she would often work

approximately eight (8) to twelve (12) hours a day and recalls working as many as fifteen (15)

hours a day on occasion. [Id. at 5]. Ms. Hager alleges she was paid approximately forty-five (45)

or fifty (50) dollars per day to perform her standard assigned route, which she calculates to be an

estimated forty-five (45) to fifty (50) cents per mile given her standard route of approximately five

hundred (500) miles per week. [Id.] Lastly, Ms. Hager asserts that she and other delivery drivers

were never reimbursed for any vehicle related expenses, and delivery drivers would often vent

about the high vehicle maintenance costs associated with driving their own personal vehicles given

the amount of driving they were required to do as Omnicare delivery drivers. [Id. at 5-6]. Mr.

Messick, a current delivery driver in Ohio, submitted a declaration detailing similar experiences.

[See Doc. 32-8, Ex. F].

Given these declarations and the other exhibits provided, Ms. Hager contends that

certification is warranted. Ms. Hager asserts that Omnicare accomplishes its “misclassification”

scheme of treating its delivery drivers as independent contractors by “jointly employing delivery

drivers with courier companies that it contracts with while simultaneously disclaiming

employment liability from its drivers.” [Doc. 33 at 5-6]. Ms. Hager contends that “in denying its

delivery drivers the statutory protection of employment status, Omnicare fails to ensure that its

delivery drivers are paid minimum wages and overtime as required by the FLSA.” [Doc. 33 at 6].

Ms. Hager further contends that she has provided sufficient evidence to support a

showing that Omnicare’s misclassification policy impacts its delivery drivers in materially

identical ways across the country. Accordingly, Ms. Hager asserts that nationwide class

certification is appropriate inasmuch as a similarly situated group of plaintiffs exists who were

victims of a common policy, scheme, or plan that violated the law.

Omnicare responded on January 24, 2020, asserting that conditional certification is

improper. Omnicare contends that Ms. Hager has failed to meet her burden for conditional

certification inasmuch as the putative class members are not similarly situated. Additionally,

Omnicare asserts that it did not have a common scheme or policy applicable to the entire collective

that violated the FLSA. Specifically, Omnicare first asserts the same argument it made in its

motion to strike, contending that it is not subject to personal jurisdiction respecting the claims of

the nonresident opt-in plaintiffs on view of Bristol-Myers Squibb and its application to FLSA

actions by other district courts.5 Second, Omnicare contends that Ms. Hager has failed to show

that it had a common policy of paying delivery drivers below the minimum wage or failing to pay

overtime given that each regional courier company, not Omnicare, had the exclusive ability to

determine its own pay practices. Third, Omnicare asserts that Ms. Hager’s collective will require

individualized alter-ego and joint employment analyses for each opt-in, which are incapable of

being resolved on a collective basis. Fourth, Omnicare contends Ms. Hager’s proposed collective

definition is overly broad. Last, Omnicare asserts that Ms. Hager’s proposed notice plan is futile.

On January 31, 2020, Ms. Hager replied contending that she has met her burden for

conditional certification. Specifically, Ms. Hager contends that Bristol-Myers Squibb is

inapplicable to collective actions in federal court and that the remainder of Omnicare’s assertions

are irrelevant at this stage of the litigation inasmuch as they go to the merits and individual

damages of the underlying claims.

1. Governing Standard

Section 216(b) of the FLSA authorizes employees with claims for unpaid wages or

unpaid overtime compensation to bring a collective action against the employer on behalf of

themselves and others “similarly situated.” 29 U.S.C. § 216(b). When considering motions to

certify collective actions under the FLSA, courts generally utilize “a two-stage approach when

deciding whether the named plaintiffs . . . are ‘similarly situated’ to other potential plaintiffs.”

Purdham v. Fairfax Cty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D. Va. 2009) (quoting Parker v.

Rowland Express, Inc., 492 F. Supp. 2d 1159, 1164 (D.Minn. 2007)).

5 The Court has earlier dispensed with this contention and need not readdress it as part of

the certification analysis.

“The ‘notice’ or ‘conditional certification’ stage comes first.” Byard v. Verizon W.

Virginia, Inc., 287 F.R.D. 365, 368 (N.D.W. Va. 2012). “This stage typically occurs early in the

proceedings, before discovery is completed.” Id. During this stage, the district court makes a

threshold determination as to “whether the plaintiffs have demonstrated that potential class

members are similarly situated,” warranting court-facilitated notice to the putative class members.

Syrja v. Westat, Inc., 756 F. Supp. 2d 682, 686 (D. Md. 2010). “‘Similarly situated’ [does] not

mean ‘identical.’” Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 566 (D. Md. 2012)

(quoting Bouthner v. Cleveland Constr., Inc., 2012 WL 738578, *4 (D. Md. Mar. 5, 2012)).

Instead, “a group of potential FLSA plaintiffs is ‘similarly situated’ if its members can demonstrate

that they were victims of a common policy, scheme, or plan that violated the law.” Id. Plaintiffs

need only make “a ‘relatively modest factual showing’ that such a common policy, scheme, or

plan exists.” Id. (quoting Marroquin v. Canales, 236 F.R.D. 257, 259 (D. Md. 2006)). In other

words, “[t]he standard for conditional certification is fairly lenient.” Romero v. Mountaire Farms,

Inc., 796 F. Supp. 2d 700, 705 (E.D.N.C. 2011).

After the close of discovery, a defendant is permitted to move to decertify the class.

It is during the second stage, also referred to as the decertification stage, that “the court conducts

a ‘more stringent inquiry’ to determine whether the plaintiffs are in fact ‘similarly situated,’ as

required by § 216(b).” Butler, 876 F. Supp. 2d 560, 566 (D. Md. 2012) (quoting Rawls v. Augustine

Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007)).

2. Analysis

At this early stage, Ms. Hager need only make “a relatively modest factual

showing” that she and putative members of the collective were “victims of a common policy,

scheme, or plan that violated the law.” See Butler, 876 F. Supp. 2d at 576. Ms. Hager has produced

sufficient evidence plausibly demonstrating that Omnicare has a uniform misclassification scheme

of treating its delivery drivers as non-employee independent contractors nationwide, which, in

turn, has resulted in wage and hour law violations under the FLSA. Indeed, Ms. Hager has

submitted an Omnicare Courier Agreement between it and three different courier companies,

including its subcontractors and contractors, encompassing at least seven (7) different states.6 [See

Doc. 32-4, Ex. B]. In the agreement, Omnicare expressly disclaims any responsibility concerning

“federal and state wage-hour obligations (including overtime),” while simultaneously retaining a

significant level of control regarding critical terms and conditions of the delivery drivers’ work.

[Id. at 17].

For instance, the agreement indicates that Omnicare, via its parent company, CVS,

retains the right to terminate or replace “any person performing Courier Services7 . . . if CVS

determines that such substitution or replacement is in the best interests of CVS or patient care, and

provided the substituting or replacing personnel meets all requirements under this Agreement.”

[Doc. 32-4, Ex. B at 7]. The agreement also states that delivery drivers must abide by certain

requirements set forth by Omnicare, such as receiving infection control training and training in

HAZMAT regulations and the handling of controlled substances, as well as passing background

checks and drug screens. [Id. at 6-7].

6 These states include Texas, New Mexico, Tennessee, Ohio, Kentucky, Oklahoma, and

Colorado. [See Doc. 32-4, Ex. B at 1-2].

7 “Courier Services” is defined in the agreement as “the pickup, transportation, delivery,

delivery receipt confirmation, and reporting, by Courier of Property to consignors and consignees

specified by Pharmacy, by vehicle delivery, in accordance with the Shipment Schedule or

otherwise directed by Pharmacy.” [Doc. 32-4, Ex. B at 2].

Additionally, Omnicare’s website describes Omnicare as a “national provider of

long term care pharmacy services delivering more than 70 million prescriptions a year to skilled

nursing facility customers nationwide.” [Doc. 32-3, Ex. 3]. In a recent Omnicare job posting for

an “Advisor Courier Delivery and Logistics Management” position, it refers to its delivery services

as “the face of the company.” [Doc. 32-3, Ex. 2]. The posting also lists some relevant duties of this

position as “optimizing a courier network,” “working directly with couriers in onboarding,

training, etc.,” and “managing courier performance.” [Id. at 2].

Moreover, the declarations of Ms. Hager and Mr. Messick8 further support the

allegation that Omnicare has engaged in a nationwide misclassification scheme of treating delivery

drivers as independent contractors, rather than employees, resulting in wage and hour violations

under the FLSA. Indeed, their declarations describe the same or similar experiences regarding the

daily control and direction that delivery drivers were subjected to by Omnicare regarding how

deliveries were to be made. [See Doc. 32, Exs. E and F]. Specifically, it is alleged that the drivers

had no control over their scheduled workdays, their delivery routes, or how deliveries were made.

[Id.] They were also required to comply with Omnicare’s policy to obtain a nurse’s signature upon

delivery, use an electronic device to confirm the delivery was made in real-time, and return the

paperwork to their respective Omnicare facilities at the end of their assigned routes. [Id.]. As a

result of this alleged misclassification scheme, the delivery drivers contend that they were often

required to work more than forty (40) hours per week without receiving overtime pay and were

not reimbursed for vehicle related expenses. [Id.].

8 Mr. Messick currently performs delivery work out of an Omnicare facility in Ohio;

however, he declares that in his sixteen (16) years as a delivery driver, he has also made deliveries

for Omnicare in Indiana and Kentucky. [Doc. 32-8, Ex. F at 1].

Importantly, it is alleged that regardless of the regional courier company Omnicare

contracts with, the delivery drivers perform the same core delivery work for Omnicare under

substantially the same conditions. [Id.]. For example, Mr. Messick asserts in his declaration that

he has been required to contract with four (4) different courier companies throughout his sixteen

(16) year tenure “in order to work for Omnicare as a delivery driver.” [Doc. 32-8, Ex. F at 2].

Regardless of which courier company he contracted with, he alleges that he has always been

required to use his personal vehicle, has never been reimbursed for any vehicle-related expenses,

and has never received overtime compensation for working in excess of forty (40) hours per week.9

[Id.]. Accordingly, these declarations, along with all other evidence submitted by Ms. Hager,

provide the modest evidentiary showing that a similarly situated group of putative plaintiffs exists

nationwide, thus warranting conditional class certification at this stage.

The Court further concludes that Omnicare’s assertions in opposing conditional

class certification are without merit. Omnicare contends that Ms. Hager “cannot establish that she

and all members of the proposed collective are victims of a common policy or plan that violated

the FLSA.” [Doc. 35 at 10.] Specifically, Omnicare asserts that Ms. Hager has failed to show that

it had a common policy of paying delivery drivers below the minimum wage or failing to pay

overtime given that each courier company, not Omnicare, had the exclusive ability to determine

its own pay practices. Omnicare points to variations in how drivers are paid depending on which

courier company the driver has contracted with in support of denying conditional certification.

Omnicare asserts that the declarations submitted by Ms. Hager “only further highlight

individualized policies that flowed from and were independently implemented by each individual

9 Mr. Messick notes that his current route does not require him to work more than forty

(40) hours per week. [Doc. 32-8, Ex. F at 3].

courier company.” [Doc. 35 at 13]. Lastly, Omnicare asserts that Ms. Hager’s collective “will

require individualized alter ego and joint employment analyses for each opt-in,” and “[t]he wide

range of entities that will need to be analyzed in relation to [Omnicare] – beyond pay practices –

further support denial of conditional certification in this case.” [Id. at 16].

The assertions are indefensible ground at this stage of the litigation, inasmuch as

they concern the merits of the claims at issue or “whether the potential opt-ins are in fact similarly

situated to [Ms. Hager].” Sullivan-Blake v. FedEx Ground Package Sys., Inc., No. 18-1698, 2019

WL 4750141 (W.D. Pa. Sept. 30, 2019). “[A]t this early stage . . . the Court does not resolve factual

disputes, decide substantive issues going to the ultimate merits, or make creditability

determinations.” Byard, 287 F.R.D. at 371 (internal quotations omitted). Moreover, “[c]ourts

routinely find that plaintiffs are similarly situated despite distinctions in their job titles, functions,

or pay.” Id. (internal quotations omitted). Indeed, “courts have held that ‘[d]ifferences as to time

actually worked, wages actually due[,] and hours involved are, of course, not significant’ in

determining whether proposed class members are similarly situated.” Gordon v. TBC Retail

Group, Inc., 134 F. Supp. 3d 1027, 1035 n.6 (quoting Pelczynski v. Orange Lake Country Club,

Inc., 284 F.R.D. 364, 368 (D.S.C. 2012)). Thus, arguments concerning dissimilarities of the

proposed class “are more appropriately decided at step two, [the decertification stage,] after it is

known who the class will consist of, and after some of the factual issues can be fleshed out in

discovery.” Byard, 287 F.R.D. at 371 (internal quotations omitted).

Lastly, Omnicare contends that if the Court determines certification is warranted,

Ms. Hager’s proposed collective definition is temporally overbroad. As previously mentioned, Ms.

Hager seeks to define the class as follows:

All individuals who delivered pharmaceutical products for Omnicare nationwide to

Omnicare’s customers, clients, or business partners, (from June 28, 2016 to the date

the Court authorizes notice), and who were classified as independent contractors.

Omnicare contends that “[b]ecause FLSA opt-in plaintiffs are only able to bring claims dating

back, at most, to three years before they join this case, the complaint’s filing date, [June 28, 2019],

is not the appropriate measuring point.” [Doc. 35 at 17]. Omnicare thus asserts that the putative

collective members who receive notice should be limited to those drivers who delivered

pharmaceutical products for Omnicare three years prior to the date of this Memorandum Opinion

and Order. Omnicare contends that this will help ensure that notice of the collective action is not

sent to delivery drivers whose statutes of limitations may have already expired. The Court agrees.

“The FLSA provides a statute of limitations of two years unless the cause of action

arises from a ‘willful violation,’ in which case a three-year limitations period applies.” Martin v.

Deiriggi, 985 F.2d 129, 135 (4th Cir. 1992) (quoting 29 U.S.C. § 255(a)). The statute of limitations

period for an individual claimant continues to run until that claimant files a written consent to opt-

in to the action. 29 U.S.C. § 256(b). Thus, limiting the collective to individuals who delivered

pharmaceutical products for Omnicare at any time during the three years preceding the date of this

Memorandum Opinion and Order “ensures that the certified class is limited to similarly situated .

. . [delivery] [d]rivers and that notice is not sent to individuals lacking a viable claim.” Davis v.

Omnicare, Inc., No. 5:18-cv-142-REW, 2019 WL 6499127, *6 (E.D. Ky. Dec. 3, 2019); see also

Atkinson v. TeleTech Holdings, Inc., No. 3:14-cv-253, 2015 WL 853234, *3 (S.D. Ohio Feb. 26,

2015) (concluding that limiting the proposed class “will help ensure that notice of the collective

action is not sent to former employees whose statutes of limitations may have already expired.”).

For the reasons set forth above, the Court conditionally certifies the collective

FLSA nationwide class as follows10:

All current and former delivery drivers classified as independent contractors who

delivered pharmaceutical products for Omnicare to Omnicare’s customers, clients,

or business partners and received their last paycheck in connection with this

delivery work on or after September 29, 2020.

The Court ORDERS that this modification be reflected in the proposed notice form [Doc. 32-14,

Ex. L] submitted by Ms. Hager. Given the conclusion that conditional certification is proper, the

Court now turns to Ms. Hager’s request for court-supervised notice to the putative members of

the collective.

3. Notice

“Courts ‘have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b). . .

by facilitating notice to potential plaintiffs’ of the pendency of the collective action.” Byard, 287

F.R.D. at 372 (quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)). “The

Court has ‘broad discretion’ regarding the ‘details’ of the notice sent to potential opt-in plaintiffs.”

Id. (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y. 2006)) (quoting Hoffmann-

La Roche, 493 U.S. at 171). “In its notice-facilitation role, the Court settles disputes regarding

notice content, and ‘ensure[s] that it is timely, accurate, and informative.’” Davis, 2019 WL

6499127, at *9 (quoting Hoffmann-La Roche, 493 U.S. at 172).

Ms. Hager requests the authorization of the issuance of the notice and consent

forms, attached as Exhibit L to her motion [Doc. 32-14], to all prospective collective members via

United States First Class Mail, electronic mail, and text message. Ms. Hager further requests that

10 Consistent with Ms. Hager’s complaint, the Court further orders that putative collective

members who in fact received notice as part of Davis v. Omnicare, Inc, et al., Case No. 5:18-cv-

00142-REW-MA (E.D. Ky.), not receive notice pursuant to this Memorandum Opinion and Order.

the proposed notice be issued consistent with the method set forth in her Proposed Order attached

as Exhibit M. [See Doc. 32-15].

Specifically, to facilitate notice, Ms. Hager requests the Court to direct Omnicare,

within ten (10) days of the date of this Memorandum Opinion and Order, to provide her counsel

the following identifying information for each putative collective member in Excel format:

[F]ull name; last known mailing address(es) with city, state, and zip code; all known

email address(es); all known cell phone numbers; beginning date(s) of

employment; ending date(s) of employment (if applicable); and the courier

companies that [Omnicare] contracted with during the claims period (indicating

relevant dates of the contractual relationship).

[Doc. 32-15, Ex. M at 3]. Ms. Hager also requests that putative opt-in plaintiffs be given the option

to consent to join the collective action through use of electronic signatures. [Id.] Additionally, Ms.

Hager requests that putative opt-in plaintiffs be given ninety (90) days to file their consent. [Id. at

4]. She also requests that her counsel be authorized to send a reminder notice via regular mail,

electronic mail, and text message forty-five (45) days after the initial mailing of the proposed

notice. [Id.].

Omnicare raises several objections to the form and method of Ms. Hager’s proposed

notice. The Court will address each objection in turn.

a. Production of Identifying Information

Omnicare first contends that Ms. Hager “has not identified a feasible plan for

distribution of notice,” thus her notice plan is futile and must be denied. [Doc. 35 at 18].

Specifically, Omnicare objects to providing the information listed above to Ms. Hager. Omnicare

contends that inasmuch as it did not hire or contract with the delivery drivers of the third party

courier companies, “it does not know the full list of drivers within the collective definition or

which, if any, ‘were classified as independent contractors,’ so as to fall within the collective

definition.” [Doc. 35 at 18]. Omnicare further contends that it is unaware of the identifying

information requested that is specific to each of these individuals given that it has no control over

this information possessed by the subcontractors.11

Ms. Hager replies that “[i]nformation that may technically be in the possession of

Omnicare’s subcontractors is certainly within its control for discovery purposes.” [Doc. 39 at 19].

Ms. Hager contends that Omnicare could easily obtain the identifying information and “streamline

the process by simply emailing all its contractors tomorrow to obtain information relevant to

notice.” [Id.]. Ms. Hager further asserts that Omnicare was put “on notice in the Parties’ Rule 26(f)

Report that it had an obligation to take reasonable efforts to preserve such plainly relevant

information.” [Id.].

As mentioned above, Ms. Hager requests that Omnicare be ordered to produce the

names, last known addresses, email addresses, cell phone numbers, the dates of employment of all

putative collective members, and to produce the names of the courier companies it contracted with

during the claims period. Additionally, Ms. Hager requests that the Court authorize notice to be

issued to all putative collective members via United States First Class Mail, electronic mail, and

text message. “Courts have discretion to “permit limited discovery to facilitate notice [in FLSA

collective actions].” Lee, 236 F.R.D. at 201-202 (collecting cases). Additionally, “[c]ourts

routinely order the production of names and addresses in collective actions.” Blount v. U.S. Sec.

Assocs., 945 F. Supp. 2d 88, 97 (D.D.C. 2013); see also Byard, 287 F.R.D. 365 at 376-77 (requiring

11 Omnicare contends that it lacks control this information for the reasons set forth in its

portion of the parties’ Rule 26(f) report. In the report, Omnicare asserts that inasmuch as Ms. Hager

chose not to include the subcontractors as defendants, such information must be obtained via third-

party subpoenas. [See Doc. 19 at 7].

defendant to produce names and last known contact information, including addresses and email

address, of putative class members). The disclosure of phone numbers, however, “implicates

privacy concerns and . . . should not be required absent particularized need.” Blount, 945 F. Supp.

2d at 97.

As such, Omnicare will be directed to produce the full names, last known addresses,

and email addresses of the proposed class members. Further, the Court discerns no reason why the

proposed members’ dates of employment or the names of the courier companies Omnicare

contracted with during the claims period should not be disclosed. The Court will not, however,

order production of the mobile phone information at this time. Ms. Hager may move for a further

order requiring the disallowed production if some potential class members are unable to be reached

based on the information produced. See Blount, 945 F. Supp. 2d at 97 (permitting plaintiffs to file

an additional motion requesting production of birth dates and phone numbers if some potential

plaintiffs are unable to be reached by the information provided.).

Furthermore, although Omnicare asserts that it lacks the ability to obtain the

requested information, it could easily obtain such information by simply contacting the

subcontractors it did business with during the claims period. Indeed, the only information

Omnicare needs to make this request is (1) the scope of the putative class as defined earlier within,

and (2) the names of those subcontractors with whom it did business, which it presumably

possesses. See Rivera v. Power Design, Inc., 172 F. Supp. 3d 321, 330 (D.D.C. 2016) (ordering

the defendant to “contact any of its subcontractors . . . that may have records relating to any

potential class members” in order to facilitate notice).

Accordingly, the Court OVERRULES Omnicare’s objection to producing the

information described herein and AUTHORIZES Ms. Hager’s counsel to send notice to all

putative collective members via First Class United States Mail and electronic mail.

b. Duration of Opt-in Period

Omnicare next objects to the ninety (90) day opt-in period proposed by Ms. Hager.

Instead, Omnicare requests a notice period of sixty (60) days inasmuch as Ms. Hager has not

presented any justification to extend notice beyond this period. Ms. Hager, however, asserts that a

ninety (90) day period “is warranted given the scope of the collective and based on Omnicare’s

self-serving position that it has no ability to obtain information that would streamline the notice

process and make administrative issues during the notice period less likely to occur.” [Doc. 39 at

18-19].

The Court concludes that a ninety (90) day opt-in period is appropriate given the

scope of the proposed nationwide class. Indeed, “[d]istrict courts in the Fourth Circuit generally

authorize opt-in periods between thirty and ninety days.” Privette v. Waste Pro of N. Carolina,

Inc., No. 2:19-CV-3221-DCN, 2020 WL 1892167, *7 (D.S.C. Apr. 16, 2020) (collecting cases).

Furthermore, while “notice periods may vary . . . numerous courts around the country have

authorized ninety day opt-in periods for collective actions.” Butler, 876 F. Supp. 2d 560, 575 (D.

Md. 2012) (collecting cases). Accordingly, given the circumstances of this matter, the Court

OVERRULES Omnicare’s objection and AUTHORIZES the ninety (90) day opt-in period.

c. Reminder Notice

Omnicare next objects to a reminder notice being sent to putative members of the

collective forty-five (45) days after the initial mailing of the notice. Ms. Hager contends that a

reminder notice is appropriate given the scope of the class and the concern that some class

members may not receive the initial notice.

The Court concludes that a reminder notice of forty-five (45) days after mailing of

the initial notice is unwarranted given that “district courts around the country have found reminder

notices have a tendency to both stir up litigation . . . and inappropriately encourage putative

plaintiffs to join the suit.” Byard, 287 F.R.D. at 373 (collecting cases) (internal citations omitted);

see also Wolfran v. PHH Corp, No. 1:12-CV-599, 2012 WL 6676778, at *4 (S.D. Ohio Dec. 21,

2012) (finding “[m]any courts have rejected reminder notices, recognizing the narrow line that

divides advising potential opt-in plaintiffs of the existence of the lawsuit and encouraging

participation.”)). Indeed, “[t]he purpose of notice is to simply inform potential class members of

their rights. Once they receive that information, it is their responsibility to act as they see fit.” Id.

(quoting Witteman v. Wisconsin Bell, Inc., No. 09-440, 2010 WL 446033, at *3 (W.D.Wis. Feb.

2, 2010)). Accordingly, the Court SUSTAINS Omnicare’s objection and DENIES Ms. Hager’s

request to issue a reminder notice.

d. Content of Notice and Consent Forms

Lastly, Omnicare objects to the content of the proposed notice and opt-in form

submitted by Ms. Hager. Omnicare contends that these documents contain inconsistencies and

incomplete and inaccurate statements. First, Omnicare asserts that while the notice form correctly

states that opt-ins may obtain their own counsel in paragraph nine, paragraph ten and the consent

form “incorrectly advise that opting into the case is consent to being represented by [Ms. Hager’s]

counsel.” [Doc. 35 at 19]. Second, Omnicare asserts that the submitted consent form “improperly

requires that the named plaintiff will act as [the opt-ins’] agent to make decisions in the litigation.”

[Id.]. Third, Omnicare contends that the proposed notice lacks the required statement informing

opt-ins that they may be held liable for its costs associated with the litigation. Ms. Hager does not

address these objections in her reply.

Contrary to Omnicare’s assertion, the proposed notice form accurately contains a

statement informing opt-ins that they may be responsible for costs. Indeed, paragraph ten of the

notice states “[i]f Plaintiff wins or a settlement is reached, you may be entitled to a sum as part of

the judgment or settlement. However, if Plaintiff loses, you will receive nothing, and court costs

and expenses could possibly be assessed against you.” [Doc. 32-14 at 5] (emphasis added). The

Court finds this statement to be sufficient.

As to Omnicare’s remaining objections, the Court agrees that any suggestion

regarding mandatory joint representation or named plaintiff agency in the proposed notice and

consent form should be removed or modified. See Davis, 2019 WL 6499127, at *11 (concluding

“representations regarding Named-Plaintiff agency and any suggestions of mandatory joint

representation are incomplete or inaccurate and must be modified or stricken.”). As Omnicare

mentions, the proposed notice form correctly informs opt-ins of their ability to choose their own

counsel in paragraph nine. [See Doc. 32-14 at 4]. Paragraph ten, however, for the sake of clarity,

should be modified to read as follows:

By timely submitting a Consent Form you will be part of this case. You may agree

to be represented by Plaintiff’s counsel or counsel of your own choosing. If you

wish to be represented by an attorney of your own choosing, he or she may file the

opt-in consent form with the Court on your behalf.

Likewise, paragraph four of the consent form should also be modified to permit opt-ins to choose

their own counsel should they be inclined to do so, and paragraph five should be eliminated or

modified to remove any mention of named-plaintiff agency.

III.

Based on the foregoing discussion, and having considered the entirety of the record,

the Court ORDERS as follows:

1. That Omnicare’s motion to strike be, and hereby is, DENIED;

2. That Ms. Hager’s motion for conditional certification and court-facilitated notice

on the terms set forth herein be, and hereby is, GRANTED as stated earlier within

and otherwise denied as to its residue;

3. That a nationwide collective be, and hereby is, CONDITIONALLY CERTIFIED

as follows:

All current and former delivery drivers classified as

independent contractors who delivered pharmaceutical

products for Omnicare to Omnicare’s customers, clients, or

business partners and received their last paycheck in

connection with this delivery work on or after September 29,

2020;

4. That it be, and hereby is, as stated in footnote ten earlier within, directed that all

putative collective members who in fact received notice as part of Davis v.

Omnicare, Inc, et al., Case No. 5:18-cv-00142-REW-MA (E.D. Ky.) will not

receive notice pursuant to this Memorandum Opinion and Order;

5. That it be, and hereby is, ORDERED that Ms. Hager amend her proposed notice

and consent form in accordance with the modifications as detailed above and

submit the amended notice and consent forms to the Court for final approval by

October 5, 2020;

6. That it be, and hereby is, ORDERED that counsel for Ms. Hager provide putative

collective members the option to consent to join this collective action through the

use of electronic signatures; and

7. That it be, and hereby is, ORDERED that, within ten (10) days of the date of this

Memorandum Opinion and Order, Omnicare shall provide Ms. Hager the full

names, last known mailing addresses, email addresses, and the dates of employment

of the putative class members in Excel format, and the names of the courier

companies that Omnicare contracted with during the claims period (indicating the

relevant dates of the contractual relationship).

ENTERED: September 29, 2020

Ay 4 Xo

aS. □ □ Lol

oes fe Frank W. Volk

“lee” = United States District Judge

33