Russell et al v. Swick Mining Services USA Incorporated et al

Filing 49

ORDER granting Plaintiffs Wendell Russell, Michael Oelke, Ricky Rowland, and Randy McGrath's Motion to Amend Scheduling Order (Doc. 27 ). Plaintiffs shall file its Amended Complaint on the docket by April 19, 2017. IT IS FURTHER ORDERED grantin g Plaintiffs' Motion for Conditional Collective Action Certification (Doc. 33 ). Plaintiffs' Notice and Consent forms shall be written and sent in compliance with this Order. Plaintiffs' counsel will serve as interim class counsel. Signed by Judge John J Tuchi on 4/14/17.(KGM)

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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wendell Russell, et al., 10 Plaintiffs, 11 ORDER v. 12 No. CV-16-02887-PHX-JJT Swick Mining Services USA Incorporated, et al., 13 Defendants. 14 15 At issue is putative class action Plaintiffs Wendell Russell, Michael Oelke, Ricky 16 Rowland, and Randy McGrath’s Motion to Amend Scheduling Order (Doc. 27, Mot. to 17 Amend), to which Defendant Swick Mining Services USA, Inc. filed a Response 18 (Doc. 34, Mot. to Amend Resp.), and in support of which Plaintiffs filed a Reply 19 (Doc. 41, Mot. to Amend Reply); and Plaintiffs’ Motion for Conditional Collective 20 Action Certification, Appointment of Class Counsel, and Request for Expedited Court- 21 Supervised Corrective Notice of Pending Collective Action (Doc. 33, Mot. for Cert.), to 22 which Defendant filed a Response (Doc. 38, Mot. for Cert. Resp.), and Plaintiffs filed a 23 Reply (Doc. 35, Mot. for Cert. Reply). The Court finds these matters appropriate for 24 decision without oral argument. See LRCiv 7.2(f). 25 I. BACKGROUND 26 Plaintiffs filed their original Complaint (Doc. 1), the current operative pleading, on 27 August 29, 2016, alleging that Defendant violated the Fair Labor Standards Act 28 (“FLSA”), 29 U.S.C. § 201 et seq., when it failed to pay them, as well as other similarly 1 situated employees, overtime wages owed to them. Defendant filed its Answer on 2 September 30, 2016, after a short extension of time to respond. (Docs. 6, 9-10.) 3 In late September or early October, the parties entered into settlement discussions 4 and a tolling agreement continuing the statute of limitations period for their claims to 5 December 15, 2016. (Doc. 29, Ex. A.) On November 16, 2016, the Court entered a 6 Scheduling Order setting a December 23, 2016 deadline for amending the complaint or 7 adding parties. (Doc. 18.) On December 9, 2016, the parties entered a stipulation to 8 extend the deadline for any conditional certification motion to January 31, 2017. (Docs. 9 24-25.) The present Motions followed. 10 II. LEGAL STANDARDS 11 A. 12 A party may amend a pleading once as a matter of course within 21 days after 13 serving it, or within 21 days of service of, among others, a Rule 12(b)(6) motion. Fed. R. 14 Civ. P. 15(a). In all other circumstances, absent the opposing party’s written consent, a 15 party must seek leave to amend from the court. Fed. R. Civ. P. 15(a)(2). Although the 16 decision to grant or deny a motion to amend is within the trial court’s discretion, “Rule 17 15(a) declares that leave to amend shall be freely given when justice so requires.” Foman 18 v. Davis, 371 U.S. 178, 182 (1962) (citation and internal quotation marks omitted). “In 19 exercising its discretion with regard to the amendment of pleadings, a court must be 20 guided by the underlying purpose of Rule 15—to facilitate a decision on the merits rather 21 than on the pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 22 1987) (citation and internal quotation marks omitted). Fed. R. Civ. P. 15 and 16 23 However, the policy in favor of allowing amendments is subject to limitations. 24 Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002) (holding that after a 25 defendant files a responsive pleading, leave to amend is not appropriate if the 26 “amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, 27 or creates undue delay.”). Where a court has entered a scheduling order under Rule 16 28 and set a deadline for amending the pleadings, the Court “should address the issue under -2- 1 [Rule] 16.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Under 2 Rule 16, a party must show “good cause for not having amended their complaint before 3 the time specified in the scheduling order expired.” Id. “This standard ‘primarily 4 considers the diligence of the party seeking the amendment.’” Id. (citing Johnson, 975 at 5 607. 6 B. 7 An FLSA action “may be maintained against any employer . . . by any one or 8 more employees for and on behalf of himself or themselves and other employees 9 similarly situated.” 29 U.S.C. § 216(b). The decision to certify a collective action under 10 the FLSA is within the discretion of the Court. Edwards v. City of Long Beach, 467 F. 11 Supp. 2d 986, 989 (C.D. Cal. 2006). To certify a collective action under the FLSA, the 12 Court must determine whether named Plaintiffs and potential opt-in members are 13 “similarly situated.” 29 U.S.C. § 216(b). The FLSA does not define the term “similarly 14 situated,” and the Ninth Circuit Court of Appeals has not construed the term. Wood v. 15 TriVita, Inc., No. CV–08–0765–PHX–SRB, 2009 WL 2046048, at *2 (D. Ariz. Jan. 22, 16 2009). FLSA Conditional Class Certification 17 The majority of courts, including this one, have adopted the two-tiered approach to 18 seeking class certification. See, e.g., Bogor v. Am. Pony Exp., Inc., No. 09–2260–PHX– 19 JAT, 2010 WL 1962465, at *2 (D. Ariz. May 17, 2010). Under that approach, courts 20 evaluate the case under a lenient standard and may grant conditional certification. See 21 Juvera v. Salcido, 294 F.R.D. 516, 519 (D. Ariz. 2013). If the Court “‘conditionally 22 certifies’ the class, putative class members are given notice and the opportunity to ‘opt- 23 in.’ The action proceeds as a representative action throughout discovery.” Id. (citing Hipp 24 v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001)). The Court then 25 reevaluates, usually prompted by a motion for decertification, the “similarly situated” 26 question at a later stage, once discovery has produced sufficient information regarding 27 the nature of the claims. Id. This determination, under a stricter standard, is based on 28 much more information, which makes a factual determination possible. Id. -3- 1 III. ANALYSIS 2 A. 3 Plaintiffs seek to amend their Complaint, primarily to add a subclass of putative 4 members based on a different allegedly violative payment structure. (See Doc. 27, Ex. A.) 5 Defendant argues that Plaintiffs have alleged only carelessness in failing to amend before 6 the Scheduling Order deadline and that such inadvertence is insufficient to meet Rule 7 16’s good cause standard. (Mot. to Amend Resp. at 2 (citing Johnson v. Mammoth 8 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).) Plaintiffs respond with several 9 “good cause” factors: (1) the collective action has not been conditionally certified and no 10 additional notice will need to be sent; (2) some putative class members are part of both 11 proposed classes (i.e., the class proposed in the original Complaint, as well as the second 12 subclass in the proposed Amended Complaint); (3) formal discovery is in its infancy and 13 had not commenced at the time of filing; (4) the statute of limitations has not expired on 14 any of Plaintiffs’ claims; (5) Plaintiffs seek not to add another party, but only an hourly 15 wage component to their existing claim; and (6) their Motion was filed one month after 16 the Court-imposed deadline and “within days” of Plaintiffs’ counsel realizing that the 17 stipulated extension to file a motion seeking conditional class certification did not also 18 apply to amendment. (Mot. to Amend at 5-6.) Motion to Amend 19 Much of Plaintiffs’ argument focuses on lack of prejudice, rather than diligence, 20 which Defendant argues is “immaterial to this analysis.” (Mot. to Amend. Resp. at 2 21 (citing Coleman, 232 F.3d at 1295).) However, while the district court primarily 22 considers diligence of the party seeking amendment, the existence and degree of 23 prejudice to the party opposing modification may also be considered. Johnson, 975 F.2d 24 at 609. If the party was not diligent, however, “the inquiry should end.” Id. While the 25 Court will consider prejudice, as well as other factors, it agrees that almost all of 26 Plaintiffs’ above justifications are irrelevant as to good cause. 27 Still, because Defendant will suffer no prejudice whatsoever from allowing 28 Plaintiffs to file their Amended Complaint—the statute of limitations has not yet run, no -4- 1 meaningful discovery or notices have been sent, and Defendant will be forced to litigate 2 the substance of Plaintiffs’ proposed Amended Complaint in one form or another—the 3 Court searches for a modicum of diligence and good cause. In support of its diligence 4 claims, Plaintiffs cite their belief that the extension of time to file for class certification 5 equally applied to amendment and that, once Plaintiffs’ counsel realized it did not, 6 Plaintiffs filed their Motion to Amend “within days.” (Mot. to Amend at 5-6.) Plaintiffs 7 also state that on January 17, 2017, they were informed of Defendant’s communication 8 with putative class members of the second proposed subclass, which included checks to 9 compensate for bonuses owed—communications that purportedly inform their proposed 10 Amended Complaint. (Mot. to Amend at 4.) But Plaintiffs’ main argument is that any 11 lack of diligence is excusable, even if based on mistake, and that once their mistake was 12 realized, they were diligent in seeking amendment. Defendant notes that Plaintiffs knew 13 of the issues related to the second proposed subclass prior to their Court ordered deadline, 14 illustrating a lack of diligence. (Mot. to Amend Resp. at 3.) The Court agrees that 15 Plaintiffs’ argument stretches the bounds of diligence and good cause. However, the 16 secondary and tertiary factors that the Court may consider in deciding Plaintiffs’ Motion 17 weigh overwhelmingly in favor of amendment. Not only is there no prejudice to 18 Defendant—which it does not dispute—forcing the filing of a second, partially parallel 19 action would not only be wasteful to the parties, but would unnecessarily exhaust judicial 20 resources, cause duplicative filings and efforts, and may be subject to consolidation. 21 Despite a slight showing of diligence and good cause, the Court will not demand an 22 exercise in waste and will grant Plaintiffs’ Motion to Amend. 23 B. 24 Motion for Conditional Class Certification, Appointment of Class Counsel, and Request for Expedited Court-Supervised Corrective Notice 25 While Defendant denies Plaintiffs’ allegations, arguing that they misconstrue the 26 pay structures at issue, it nonetheless does not oppose Plaintiffs’ request for conditional 27 collective action certification, given the lenient standard in the first phase. (Mot. for Cert. 28 Resp. at 2-3.) Nor does Defendant object to Plaintiffs’ counsel serving as interim class -5- 1 counsel. (Mot. for Cert. Resp. at 10.) Thus, the Court will grant those portions of 2 Plaintiffs’ Motion, respectively. 3 Defendant does object to certain aspects of Plaintiffs’ Motion for Expedited Court- 4 Supervised Notice, chiefly: Plaintiffs’ (1) class definition; (2) method of mailing their 5 proposed Notice and Consent forms; (3) full request for employee contact information; 6 and (4) proposed posting of Notice and Consent forms. Thus, the Court will only address 7 those issues that Defendant disputes, analyzing each in turn. 8 1. Putative Class Description 9 Defendant objects to Plaintiffs’ characterization of the putative class action as 10 overly broad. (Mot. for Cert. Resp. at 4-5.) The current putative class Plaintiffs seek to 11 provide notice to is described as: 12 13 14 All current and former employees of Swick Mining Services (USA), Inc. who perform or have performed work as Drillers, Trainee Drillers, Helpers or similar duties for Swick Mining Services (USA), Inc. since August 29, 2013 to the present. 15 (Mot. for Cert., Ex. A.) Defendant contends that the description is overbroad as: (1) the 16 phrase “similar duties” is undefined and vague; (2) it does not apply only to those who 17 were explicitly subject to a flat sum payment for a day’s work, as is alleged in Plaintiffs’ 18 original Complaint; and (3) it exceeds both the two or three year statute of limitations 19 under the FLSA. (Mot. for Cert. Resp. at 5.) 20 As to Defendant’s first argument, Plaintiffs respond that their lack of knowledge 21 as to all Defendant’s job titles does not preclude use of the term “similarly situated.” 22 (Mot. for Cert. Reply at 3.) The Court agrees. The Ninth Circuit has not defined the term 23 “similarly situated” and during the first phase, Plaintiffs’ burden regarding similarity of 24 class members is low. See, e.g., Wetheim v. Ariz., No. CIV 92–453 PHX RCB, 1993 WL 25 603552, at *1 (D. Ariz. Sept. 30, 1993) (“All that need be shown by plaintiff is some 26 identifiable factual or legal nexus that binds together the various claims of the class 27 members . . .”). As Plaintiffs note, any putative plaintiff that mistakenly opts-in but is not 28 sufficiently similarly situated can and will be excluded from the class. Moreover, -6- 1 Defendant provides no precedent that would guide the Court’s analysis in excluding 2 Plaintiffs’ proposed language. (See Mot. for Cert. Resp. at 4.) Accordingly, the term 3 “similarly situated” may remain in Plaintiffs’ class definition. 4 Defendant’s second argument, that Plaintiffs’ definition improperly includes 5 workers who were not subject to a flat sum per-day (Mot. for Cert. Resp. at 5), is only 6 relevant to Plaintiffs’ original Complaint. Because the Court will allow Plaintiffs to file 7 their proposed Amended Complaint that includes two subclasses, the second of which is 8 composed of employees who received a nondiscretionary bonus, Defendant’s objection is 9 no longer relevant. Thus, the Court will deny Defendant’s proposed modification limiting 10 the class to workers who were paid “a flat sum for a day’s work.” (Mot. for Cert. Resp. 11 at 5.) 12 Finally, Defendant’s third argument, that Plaintiffs’ definition is incongruous with 13 any applicable statute of limitations (Mot. for Cert. Resp. at 5), is well taken. While 14 Defendant cites no analogous precedent, it correctly cites the applicable statute of 15 limitations as counted from the date the notice is sent—two years generally, and three for 16 willful violations. 29 U.S.C. § 255. Further, the limitation periods are not stayed or tolled 17 until each opt-in plaintiff has filed his or her written consent form with the Court, as 18 Plaintiffs acknowledge. (Mot. for Cert. Reply at 5.) Nevertheless, and despite Plaintiffs’ 19 admission that the Defendant’s proposed date will “likely have no impact on opt-in 20 claims” of the first subclass (Mot. for Cert. Reply at 5), Plaintiffs seek to extend the 21 period in the notice back to August 29, 2013—three years prior to the filing of their 22 original Complaint. (Mot. for Cert., Ex. A.) While Plaintiffs provide non-binding 23 authority illustrating that such class periods have been accepted, several of Plaintiffs’ 24 cited cases, in addition to being issued in other districts or circuits, specifically note their 25 idiosyncratic facts. See, e.g., Chhab v. Darden Restaurants, Inc., No. 11 CIV. 8345 NRB, 26 2013 WL 5308004, at *15 (S.D.N.Y. Sept. 20, 2013) (allowing challenges to timeliness 27 to be entertained at a later date but noting their discomfort with the reasoning offered by 28 such courts, as well as the “unique timing of events” leading to its decision). -7- 1 Accordingly, such unique cases do not convince the Court that Plaintiffs’ date is 2 appropriate; nor does Plaintiffs’ argument that the date should be equitably tolled as a 3 whole. (Mot for Cert. Reply. at 5-6.) Because equitable tolling is only available in 4 extraordinary circumstances, Alvarez–Machain v. United States, 107 F.3d 696, 701 5 (9th Cir. 1996), it serves neither the parties nor the conservation of judicial resources to 6 allow likely precluded plaintiffs to join the class, only to parse through each on a case-by- 7 case basis, searching for the exception, rather than the rule. Should potential plaintiffs 8 come forth with arguments for equitable tolling, or if discovery were to yield evidence of 9 conduct allowing equitable extension, prescriptive measures may be taken. Thus, 10 Plaintiffs’ proposed Notice shall be revised to reflect a class period beginning three years 11 prior to the date the notice is sent. 12 2. Notice and Consent 13 Defendant does not object to conditional certification, including providing putative 14 class members with appropriate Notice and Consent forms. (Mot. for Cert. Resp. at 5.) 15 However, in addition to objecting to the class description, Defendant objects to the 16 characterization of its communications with employees, the opt-in period, statements 17 regarding the effect of joining the lawsuit, the omission of contact information for 18 Defendant’s counsel, and alleged solicitation to participate in subsequent suits. (Mot. for 19 Cert. Resp. at 6-8.)1 20 First, in Section 3 of the proposed Notice, Plaintiffs wish to contextualize any 21 payments employees may have received for back overtime wages. (Mot for Cert., Ex. A.) 22 Defendant argues that the Notice mischaracterizes the communications that are not per se 23 improper. (Mot. for Cert. Resp. at 6.)2 However, Defendant’s communications are 24 1 25 26 27 28 Defendant also takes issue with the statement of the effect of the Court’s approval of the Notice and any ambiguity regarding the number of defendants (Mot. for Cert. Resp. at 8), but Plaintiffs’ Reply acquiesces to proposed clarifications as to each (Mot. for Cert. Reply at 9-10). 2 While Plaintiffs argue that Defendant’s citation to “Kelsey, 67 F. Supp. 3d at 1075” is inaccurate (Mot. for Cert. Reply at 6), the Court has verified Defendant’s quotations therein. See Kesley v. Entm’t U.S.A. Inc., 67 F. Supp. 3d 1061 (D. Ariz. 2014). While Defendant’s pin-cite appears to yield duplicative results in some instances, -8- 1 relevant to the proposed Amended Complaint. Moreover, nothing in Defendant’s filings 2 avers that Plaintiffs’ description of the communications are factually inaccurate. (See 3 Docs. 38, 38-1.) While Defendant is correct that its communication with employees 4 regarding potential compensation owed to them is not per se improper, neither is 5 Plaintiffs’ attempt to apprise employees of their rights, and Plaintiffs do not seek to 6 restrict those communications—as is the case in Defendant’s cited precedent. 7 Second, in Section 4 of the proposed Notice, Plaintiffs propose a 90-day opt-in 8 period, while Defendant asserts that a 60-day deadline is sufficient. (Mot. for Cert. Resp. 9 at 7.) Because Plaintiffs have provided ample facts showing that the putative plaintiffs 10 have peculiar work schedules and job-related travel, as well as abundant precedent on the 11 issue, the Court finds a 90-day opt-in period appropriate. See Williams v. U.S. Bank Nat. 12 Ass’n, 290 F.R.D. 600, 614 (E.D. Cal. 2013) (rejecting conclusory proposal of a 60-day, 13 rather than 90-day, opt-in period where Defendant offered no “independent reason the 14 period should be reduced from 90 to 60 days,” other than that “some courts in this Circuit 15 have approved 60 days, and others have approved 90 days”). 16 Third, Defendant argues that the proposed Notice should include a statement 17 advising potential plaintiffs that they may be required to respond to written discovery, 18 appear for a deposition, and/or testify at trial. (Mot. for Cert. Resp. at 7.) However, in 19 Defendant’s cited precedent, the plaintiffs explicitly agreed to add a similar discovery 20 admonition. See Kesley, 67 F. Supp. 3d at 1074; O’Neal v. America’s Best Tire LLC, No. 21 CV-16-00056-PHX-DGC, 2016 WL 3087296, at *6 (D. Ariz. June 2, 2016). Here, 22 Plaintiffs strongly oppose such language, and the Court agrees that it may have a chilling 23 effect on recipients who may be unfamiliar with litigation. Any opt-in who remains 24 reticent to actively engage in discovery will have abundant opportunity to withdraw from 25 the action. Accordingly, the Court will not require a description of potential discovery 26 obligations in Plaintiffs’ Notice. See Prentice v. Fund for Pub. Interest Research, Inc., 27 28 Defendant’s latter cite (Mot. for Cert. Resp. at 7), while misspelled, yields the correct case. Thus, Plaintiffs’ assessment that they were unable to diligently locate or respond to the citation is incorrect. -9- 1 No. C-06-7776 SC, 2007 WL 2729187, at *5 (N.D. Cal. Sept. 18, 2007) (“[s]uch 2 language is unnecessary and inappropriate . . . [as] individualized discovery is rarely 3 appropriate in FLSA collective actions,” and “[i]ncluding a warning about possible 4 discovery when that discovery is unlikely will serve no purpose other than deterring 5 potential plaintiffs . . . based on unfounded concerns about the hassle of discovery”). 6 Fourth, Defendant advocates adding its counsel’s contact information to Sections 7 8 and 9 of the proposed Notice. (Mot. for Cert. Resp. at 7.) Once again, Defendant cites 8 to precedent in which the plaintiffs agreed to include the language. (Mot. for Cert. Resp. 9 at 7 (citing Coyle v. Flowers Foods Inc., No. CV-15-01372-PHX-DLR, 2016 WL 10 4529872, at *7 (D. Ariz. Aug. 30, 2016).) Further, Plaintiffs respond that adding such 11 information may cause confusion and that if a person has already decided to opt-in, 12 communication by Defendant’s counsel would essentially invade an imminent attorney- 13 client relationship. Still, cases within this District exist holding that granting Plaintiffs’ 14 counsel exclusive access to potential collective action members could provide them “an 15 avenue to mislead potential collective action members in an attempt to secure their 16 consent to join the lawsuit.” Bados Madrid v. Peak Constr., Inc., No. 2:09-CV-00311 17 WJS, 2009 WL 2983193, at *3 (D. Ariz. Sept. 17, 2009). Further, and as the Court 18 previously addressed, nothing precludes pre-opt-in communication with a potential 19 § 216(b) plaintiff, “unless the communication undermines or contradicts the Court’s 20 notice.” Parks v. Eastwood Ins. Servs., Inc., 235 F. Supp. 2d 1082, 1085 (C.D. Cal. 21 2002). “If an undermining or contradictory communication is sent, the Court can control 22 the proceedings through sanctions, requiring payment for a curative notice, regulation of 23 future ex parte communications, or other appropriate orders.” Id. Accordingly, the Court 24 will allow Defense counsel’s contact information to be included in the Notice, subject to 25 the foregoing admonition, precluding all communication proscribed by applicable law. 26 Fifth, Section 3 of Plaintiffs’ proposed Consent form states that if the action is 27 decertified, opt-ins consent to refile those claims in a separate or related action again. 28 Defendant argues that this impermissibly solicits the putative class members for - 10 - 1 subsequent lawsuits in the event this action is ultimately decertified. (Mot. for Cert. Resp. 2 at 8.) Because the Court will allow Plaintiffs to file their proposed Amended Complaint 3 and Plaintiffs submit that the language was included as a precaution in the event their 4 Motion to Amend was denied, the language and controversy are moot. Thus, the language 5 shall be stricken from any Notice and Consent. 6 3. Personal Contact Information 7 Defendant agrees to provide the last known mailing and email address of the 8 potential collective action members, but opposes providing telephone numbers, social 9 security numbers, and birth dates of its employees due to privacy concerns. (Mot. for 10 Cert. at 8.) Plaintiffs respond only to say that such identifying information would increase 11 the probability that those entitled to notice receive it. (Mot. for Cert. Resp. 10.) While 12 Plaintiffs may be correct, the Court sees no reason to demand such unnecessarily 13 intrusive information to be produced and will not require Defendant to disclose such 14 personal identifiers. See Villarreal v. Caremark LLC, 66 F. Supp. 3d 1184, 1196 (D. Ariz. 15 2014) (denying request for defendants to provide telephone and social security numbers 16 of potential plaintiffs); Taylor v. Autozone, Inc., No. CV-10-8125-PCT-FJM, 2011 WL 17 2038514, at *5 (D. Ariz. May 24, 2011) (declining to provide telephone and social 18 security numbers as that information is “sensitive, and putative class members may have 19 provided personal data to defendant with the expectation of confidentiality”); Stickle v. 20 SCI W. Mkt. Support Ctr., L.P., No. 08-083-PHX-MHM, 2009 WL 3241790, at *7 (D. 21 Ariz. Sept. 30, 2009) (supplying “the phone numbers of thousands of Defendants’ current 22 and former employees seems like a needless intrusion into the privacy of these 23 individuals and their families . . . . Similarly, Plaintiffs are not entitled to any social 24 security numbers.”) (citations omitted)). 25 Likewise, Defendant does not object to the Notice and Consent forms being both 26 mailed and emailed, but objects to resending the Notice and Consent forms of an 27 employee whose mailed copy of the form is returned as undeliverable or otherwise 28 allowing Plaintiffs to send a second notice. (Mot. for Cert. Resp. at 9.) Plaintiffs respond - 11 - 1 by reiterating potential plaintiffs’ peculiar work schedules may require multiple notices to 2 ensure a fulsome class. (Mot. for Cert. Reply at 8, 10.) The Court agrees with Plaintiffs 3 and will not preclude resending the Notice and Consent forms when a mailed copy is 4 returned as undeliverable or sending a second notice; two attempts to solicit opt-in parties 5 does not constitute harassment or pressure. See, e.g., Sandoval v. Tharaldson Employee 6 Mgmt., No. EDCV 08-00482-VAPOP, 2009 WL 3877203, at *11 (C.D. Cal. Nov. 17, 7 2009) (exhibiting common practice of FLSA settlement agreements to include multiple 8 notices before granting court approval). 9 4. Physical Placement of Notice and Consent 10 Defendant objects to the posting of Notice and Consent copies at each of its 11 business locations and worksites, as they have no control over their client’s worksites and 12 posting them at the properties it does control would have no effect since they are only 13 sporadically populated with any employees who could be potential class members. (Mot. 14 for Cert. Resp. at 9-10.) Plaintiffs do not assert a meaningful response to this argument 15 and, in recognition of the unique working arrangement between Defendant and its 16 employees potentially at issue, the Court will not permit the proposed physical postings. 17 IV. CONCLUSION 18 Although Plaintiffs’ purported belief that the extension of time to move for class 19 certification also tolled their time to amend their Complaint was mistaken, Plaintiffs were 20 fairly diligent in attempting to file an Amended Complaint and diligent in litigating this 21 suit generally. Given that the entirety of the remaining factors militate towards 22 amendment, the Court will allow Plaintiffs to amend their Complaint. Because Defendant 23 does not oppose class certification or the appointment of conditional class counsel, the 24 Court will grant each. The class Notice and Consent forms issued shall fully comply with 25 the foregoing. 26 IT IS THEREFORE ORDERED granting Plaintiffs Wendell Russell, Michael 27 Oelke, Ricky Rowland, and Randy McGrath’s Motion to Amend Scheduling Order 28 (Doc. 27). - 12 - 1 2 3 4 5 6 7 8 9 IT IS FURTHER ORDERED that Plaintiffs shall file its Amended Complaint on the docket by April 19, 2017. IT IS FURTHER ORDERED granting Plaintiffs’ Motion for Conditional Collective Action Certification (Doc. 33). IT IS FURTHER ORDERED that Plaintiffs’ Notice and Consent forms shall be written and sent in compliance with this Order. IT IS FURTHER ORDERED that Plaintiffs’ counsel will serve as interim class counsel. Dated this 14th day of April, 2017. 10 11 12 Honorable John J. Tuchi United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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