Butcher et al v. Delta Memorial Hospital
ORDER granting in part and denying in part 35 Motion for Summary Judgment; denying 41 Motion to Strike ; denying 44 Motion for Leave to File; denying 19 Motion to Certify Class. Signed by Judge Susan Webber Wright on 4/17/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DONNA BUTCHER, MELLIE
STOVALL, JESSICA KIZER,
KENNETTA JOINER, AND
Individually and on behalf of
others similarly situated
DELTA MEMORIAL HOSPITAL
NO: 5:12CV00241 SWW
Six former employees of Defendant Delta Memorial Hospital (“Delta”)
bring this putative collective action pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq., seeking compensation for overtime. The case
is before the Court on (1) Plaintiffs’ motion for conditional certification (docket
entries #19, #20), Delta’s response in opposition (docket entries #32, #33), and
Plaintiffs’ reply (docket entry #34 ); (2) Delta’s motion for summary judgment
(docket entries #35, #36, #37), Plaintiffs’ response in opposition (docket entries
#38, #39), and Delta’s reply (docket entry #40);1 and (3) Plaintiffs’ motion to
amend (docket entry #44), Delta’s response in opposition (docket entry #45), and
Plaintiffs’ reply (docket entry #46). After careful consideration, and for reasons
that follow, Plaintiffs’ motion for conditional certification is denied, Delta’s
motion for summary judgment is granted in part and denied in part, and Plaintiffs’
motion to amend is denied.
Plaintiffs Donna Butcher, Mellie Buchanon, Hattie Stovall, Jessica Kizzer,
Kenneta Joiner, and Andrea McTigrit, all former employees of Delta’s hospital in
Dumas, Arkansas, bring this putative collective action on behalf of themselves and
other past and current Delta employees. Plaintiffs claim that during their
employment, they regularly worked through their thirty-minute lunch breaks
because of “understaffing and the amount of business that the [hospital] received.”
ECF Nos. 20-1 through 25-5, ¶4. Plaintiffs also claim that even though Delta
knew or should have known that they regularly worked through lunch, the hospital
automatically deducted a thirty-minute lunch break from their daily time records,
which effectively denied them compensation for overtime.
Plaintiffs filed a motion asking the Court to strike Delta’s reply on the ground that it was
filed a week past the filing deadline. Delta’s reply focuses on the same arguments presented in
support of its motion for summary judgment, and Plaintiffs will suffer no prejudice if Court
considers that filing. Accordingly, Plaintiffs’ motion to strike will be denied.
Butcher, Stovall, and Kizer report that they were unaware of a “system” by
which they could claim compensation for a missed lunch period. See ECF No. 201 (Butcher Decl., ¶¶ 4-5); ECF No. 20-3 (Stovall Decl., ¶¶ 4-5); ECF No. 20-4
(Kizer Decl., ¶¶ 4-5) . Buchanon and McTigrit, on the other hand, state that they
were able to reclaim a missed lunch periods “on a few occasions,” but they were
never able to reclaim the time consistently. See ECF No. 20-2 (Buchanon Decl.,
¶5), ECF No. 20-5 (McTigrit Decl. ¶5). Plaintiffs also claim that Delta’s time
rounding practices caused them to work “off the clock” without compensation.
II. Motion for Conditional Certification of a Collective Action
Plaintiffs wishing to sue on behalf of a class under the FLSA must utilize the
opt-in class mechanism provided in 29 U.S.C. § 216(b) instead of the opt-out class
procedures provided under Federal Rule of Civil Procedure 23. See Mooney v.
Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other
grounds by Desert Palace Inc. v. Costa, 539 U.S. 90 (2003). Section 216(b)
provides for a class action where the complaining employees are “similarly
situated.” Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th
Cir. 2001). Unlike class actions under Federal Rule of Civil Procedure 23, “‘[n]o
employee shall be a party plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in the court in which such
action is brought.’” Id. (quoting § 216(b)). District courts have discretionary
power “in appropriate cases” to authorize the sending of notice to potential class
members in a collective action. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165,
169 (1989). In determining whether an opt-in case is appropriate for courtauthorized notice, the central question is whether plaintiffs have established that
they and the putative class members are “similarly situated” for purposes of
§ 216(b). See Thiessen, 267 F.3d at 1102; Severtson v. Phillips Beverage Co., 137
F.R.D. 264, 265-67 (D. Minn. 1991).
This Court has adopted the basic framework of the two-tiered ad hoc
approach outlined in Mooney v. Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir.
1995), overruled on other grounds by Desert Palace Inc. v. Costa, 539 U.S. 90
(2003), for determining whether plaintiffs and absent class members are similarly
situated. See Musticchi v. City of Little Rock, No. 4:08cv00419 SWW (E.D. Ark.
Feb. 2, 2009)(order granting conditional class certification). The approach set
forth in Mooney is as follows:
The first determination is made at the so-called “notice
stage.” At the notice stage, the district court makes a
decision – usually based only on the pleadings and any
affidavits which have been submitted – whether notice of
the action should be given to potential class members.
Because the Court has minimal evidence, this determination
is made using a fairly lenient standard, and typically results
in “conditional certification” of a representative class. If
the district court “conditionally certifies” the class, putative
class members are given notice and the opportunity to “optin.” The action proceeds as a representative action
The second determination is typically precipitated by a
motion for “decertification” by the defendant usually filed
after discovery is largely complete and the matter is ready
for trial. At this stage, the court has much more
information on which to base its decision, and makes a
factual determination on the similarly situated question. If
the claimants are similarly situated, the district court allows
the representative action to proceed to trial. If the
claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are dismissed
without prejudice. The class representatives – i.e. the
original plaintiffs – proceed to trial on their individual
54 F.3d at 1213-14 (internal footnote omitted).
At the “notice stage,” the Court makes an initial determination, under a
lenient standard, whether the named plaintiffs and the putative class members are
“similarly situated.” The plaintiff bears the burden of proof at this stage, and
“‘can meet this burden by making a modest factual showing sufficient to
demonstrate that they and potential plaintiffs together were victims of a common
policy or plan that violated the law.’” Wheeler v. Baxter Healthcare Corp., No.
4:11CV00263 JLH, 2011 WL 5402446, *2 (E.D. Ark. Nov. 8, 2011)(quoting
Kautsch v. Premier Commc'ns, 504 F. Supp. 2d 685, 689 (W.D. Mo. 2007)).
Plaintiffs can satisfy their burden by presenting detailed allegations supported by
affidavits, but they “may not meet this burden through unsupported assertions of
additional plaintiffs and widespread FLSA violations.’” Littlefield v. Dealer
Warranty Servs ., LLC, 679 F. Supp. 2d 1014, 1017 (E.D. Mo. 2010)(citation
This Court also requires that named plaintiffs make a preliminary factual
showing that similarly-situated potential plaintiffs actually exist. See Musticchi v.
City of Little Rock, No. 4:08cv00419 SWW (E.D. Ark. Feb. 2, 2009)(order
granting conditional class certification at 6). “Without such a requirement, it is
doubtful that § 216(b) would further the interests of judicial economy, and it would
undoubtedly present a ready opportunity for abuse.” White v. Osmose, Inc., 204 F.
Supp. 2d 1309, 1314 (M.D. Ala. 2002). “The courts, as well as practicing
attorneys, have a responsibility to avoid the ‘stirring up’ of litigation through
unwarranted solicitation,” Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267
(D. Minn. 1991), and “an employer should not be unduly burdened by a frivolous
fishing expedition conducted by plaintiff at the employer’s expense.” D’anna v.
M/A-Com, Inc., 903 F. Supp. 889, 894 (D. Md. 1995).
Additionally, this Court agrees with those courts that require evidence that
other similarly-situated individuals desire to opt into the litigation. See Dybach v.
State of Fla. Dept. of Corrections, 942 F.2d 1562, 1567–68 (11th Cir. 1991);
Alvarez v. Sun Commodities, Inc., 2012 WL 2344577, *2 (S.D. Fla. 2012);
Johnson v. VCG Holding Corp., 802 F. Supp.2d 227, 239 (D. Me. July 25, 2011);
McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 805 (S.D. Tex. 2010); Salazar
v. Agriprocessors, Inc., 2008 WL 782803 (N.D. Iowa 2008); Saxton v. Title Max of
Alabama, Inc., 431 F. Supp. 2d 1185, 1187 (N.D. Ala. 2006). The Court
recognizes that district courts within the Eighth Circuit differ as to whether and by
what means a plaintiff must demonstrate that similarly-situated individuals are
interested in joining the proposed collective action. See e.g., Ford v. Townsends of
Ark., Inc., 4:08CV00598 BSM, 2010 WL 1433455, *5 (E.D. Ark. April 9,
2010)(no showing required)(citing Helmert v. Butterball, No. 4:08CV00342 JLH,
2009 WL 5066759, at *3 (E.D.Ark. Dec. 15, 2009)); Musticchi v. Little Rock, No.
4:08CV00419 SWW (E.D.Ark. Feb. 2, 2009) (showing required);2 Robinson v.
Tyson Foods, Inc., 254 F.R.D. 97 (S.D. Iowa 2008) (showing required); Kautsch v.
Premier Communications, 504 F. Supp.2d
685 (W.D. Mo.2007) (no showing required). However, this Court continues to
In Musticchi v. City of Little Rock, No. 4:08cv00419 SWW (E.D. Ark.), this Court found
that the plaintiff made a sufficient showing that similarly-situated individuals desired to “opt in”
based on the submission of several consent forms by opt-in candidates and the named plaintiff’s
representation that others had expressed an interest in opting in. See Musticchi, ECF No.
26(order granting conditional class certification at pages 7-8).
find that plaintiffs must do more than speculate that putative opt-in plaintiffs would
be interested in joining a collective action. Without such a requirement, the parties
and the Court could waste valuable resources issuing notice to potential plaintiffs3
only to find that the case cannot proceed as a collective action. See Parker v.
Rowland Express, Inc., 492 F. Supp. 2d 1159, 1165 (D. Minn. 2007)(stating that “a
plaintiff must do more than show the mere existence of other similarly situated
persons because there is no guarantee that those persons will actually seek to join
the lawsuit”); see also Bouaphakeo v. Tyson Foods, Inc. 564 F. Supp. 2d 870, 892
(N.D. Iowa 2008)(citation and internal quotation marks omitted)(“[O]ther’s interest
in joining the litigation is relevant to whether or not to put a defendant employer to
the expense and effort of notice to a conditionally certified class of claimants.”).
In an effort to show that they were victims of a common policy that violated
the FLSA, five of the six named plaintiffs present sworn declarations stating that
they frequently worked through their thirty-minute meal periods and went
uncompensated for that time. See ECF Nos. 20-1 through 20-5 (Butcher,
Buchanon, Stovall, Kizer, McTigrit Decls.). The declarants held different
positions at the hospital and worked in different departments, but they all worked
The effectiveness of a collective action under the FLSA depends on accurate and timely
notice to potential opt-in plaintiffs, and considerable time, effort, and litigation is often devoted
to issues regarding the content and transmission of court-approved notice.
at Delta’s hospital in Dumas. Plaintiffs Butcher, Stovall, and Kizer testify that
during their employment, they were unaware of any “system” by which they could
reclaim the thirty-minute time period that Delta automatically deducted from their
daily time records. See ECF Nos. 20-1, 20-3, 20-4. But plaintiffs McTigrit and
Buchanon testify that they were unable to reclaim time for missed lunch breaks on
a consistent basis. See ECF Nos. 20-2, 20-5.
The separate plaintiffs’ declarations are silent on the subject of other
similarly-situated employees, and they are void of testimony indicating that other
past or current employees have an interest in joining this lawsuit. Additionally, the
declarations include no testimony regarding Delta’s time rounding practices.
Delta asserts several arguments in opposition to conditional certification.
First, Delta argues that Plaintiffs fail to state a claim because the FLSA permits the
practices of time rounding and automatic deductions for meal periods. However,
liability under the FLSA depends on whether the employer suffered or permitted an
employee to work uncompensated overtime, and an employer “suffers or permits”
work if it knows or has reason to believe that work was performed. See 29 C.F.R.
§ 785.11. Here, Plaintiffs allege facts sufficient to state a claim for relief: that
Delta was aware that its automatic, thirty-minute deduction practice caused
employees to work overtime without compensation.
Second, Delta contends that Plaintiffs have failed to meet their burden to
show that Delta knew or should have known that it engaged in a widespread
practice or plan that violated the FLSA. However, Plaintiffs shoulder no such
burden at the notice stage.
Third, Delta asserts that Plaintiffs have failed to demonstrate the existence of
similarly-situated employees who desire to join this lawsuit. The Court agrees.
“The mere anticipation that others may want to join the lawsuit or the mere
presence of a uniformly adverse compensation policy is insufficient by itself [to
warrant the creation of a collective action].” Guerra v. Big Johnson Concrete
Pumping, Inc., No. 2:05CV14237, 2006 WL 2290512, *10 (S.D. Fla. May 17,
2006). Although courts have granted conditional certification based on a single
affidavit or consent to join the case by at least one similarly-situated individual, the
named plaintiffs in this case provide no such evidence. Here, the named plaintiffs
submit forms stating that they consent to join this action, but they present no
evidence that other similarly-situated individuals, who are not already parties to
this lawsuit, give consent or desire to opt-in.
Plaintiffs argue that the similarity of their individual claims, standing alone,
“suggests that other plaintiffs, working at the same location and bound by the same
policies, likely exist.” ECF No. 34, at 10 (emphasis added). However, for
important reasons previously noted, Plaintiffs shoulder the burden to present
evidence of other similarly-situated individuals, who desire to opt into this
litigation. Plaintiffs’ declarations are void of any information or suggestion
regarding other similarly-situated individuals. Accordingly, conditional
certification is denied without prejudice. This ruling does not preclude Plaintiffs
from reasserting their motion based on supplemental evidence.
III. Motion for Summary Judgment
Delta moves for summary judgment, arguing that it is clear from the record
that Plaintiffs’ allegations are conclusory and have no basis in fact. Summary
judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). As a prerequisite to summary judgment, a moving party must
demonstrate “an absence of evidence to support the non-moving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has
properly supported its motion for summary judgment, the non-moving party must
“do more than simply show there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
The non-moving party may not rest on mere allegations or denials of his
pleading but must “come forward with ‘specific facts showing a genuine issue for
trial.’” Id. at 587 (quoting Fed. R. Civ. P. 56(e)). “[A] genuine issue of material
fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the
outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could
return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co.,
49 F.3d 399, 401 (8th Cir. 1995).
Separate plaintiffs Butcher, Buchanon, Stovall, and Kizer allege that during
their employment with Delta, when they arrived to work early and clocked in
before their scheduled shift, Delta’s time clock would automatically “round up” to
reflect the scheduled clock-in time instead of the time that they actually began
working. The separate plaintiffs further allege that if they worked past their
scheduled shifts, the time clock “rounded the time backward” to reflect the
scheduled clock-out time. Department of Labor regulations address the practice of
time rounding as follows:
“Rounding” practices. It has been found that in some industries,
particularly where time clocks are used, there has been the practice for
many years of recording the employees' starting time and stopping time
to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour.
Presumably, this arrangement averages out so that the employees are
fully compensated for all the time they actually work. For enforcement
purposes this practice of computing working time will be accepted,
provided that it is used in such a manner that it will not result, over a
period of time, in failure to compensate the employees properly for all
the time they have actually worked.
29 CFR § 785.48.
Delta presents the affidavit of Chris Bolin, the hospital’s CEO, who testifies
that at all relevant times, Delta’s time clock consistently rounded to the nearest
fifteen-minute interval, based on an 8-minute rounding rule. Under such a rule,
when an employee clocks in or out and no more than 7 minutes and 59 seconds
have elapsed within a given quarter hour, time is rounded back to the nearest
quarter hour; but if 8 or more minutes have elapsed, time is rounded up to the
nearest quarter hour.
Delta also presents the affidavits of sixteen current and former Delta
employees who worked as supervisors during the relevant time period. See ECF
Nos. 35-13 through 35-27. With minor variations, the supervisors’ affidavits
contain identical statements, which repeat Bolin’s description of Delta’s time
Plaintiffs acknowledge that a facially-neutral time rounding practice does
not violate the FLSA, but they assert that a question remains as to “whether
[Delta’s] clock, now and during all times relevant to this suit, rounded in such a
fashion.” ECF No. 38, at 8. According to Plaintiffs’ unverified complaint
allegations, Delta’s time rounding practice always benefitted Delta and worked
Delta has presented admissible evidence that during the relevant time period,
it consistently employed a facially-neutral time rounding practice, which is
sanctioned by Department of Labor regulations. Given that evidence, Plaintiffs
may not avoid summary judgment by reasserting the complaint allegations.
Instead, Plaintiffs shoulder the burden to come forward with specific facts showing
genuine issues for trial, and they have failed to do so.
Plaintiffs argue that discovery in this case is “far from over” and that “[t]his
factor alone weighs heavily against a finding for summary judgment, as courts
have been extraordinarily reluctant to dispose of a matter in which discovery has
not yet closed.” ECF No. 38, at 2. Plaintiffs are mistaken. When a party resisting
summary judgment is unable to adequately respond due to lack of discovery, he or
she may seek relief under Rule 56(d). Under Rule 56(d), formerly Rule 56(f), “[i]f
a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition [to summary judgment], the court
may . . . defer considering the motion or deny it; . . . or issue any other appropriate
order.” Fed. Rule Civ. P. 56(d). In this case, Plaintiffs do not make a specific
request for relief under Rule 56(d), nor do they provide specific facts explaining
how further discovery will enable them to overcome Delta’s proof. In sum, the
Court finds no cause for delaying a decision on Delta’s motion for summary
Automatic Deduction for Thirty-Minute Lunch Break
Bolin testifies that at all relevant times, Delta granted all hourly employees a
thirty-minute lunch break, which could be taken inside or outside of the hospital.
Bolin states that pursuant to hospital policy, employees who left the hospital at
lunch were required to clock out when they left and clock in when they returned;
but if an employee did not leave the hospital during his or her lunch period, the
time clock automatically deducted thirty minutes.
Bolin reports that hospital policy required that if an employee worked
through his or her lunch break, it was the employee’s responsibility to notify his or
her supervisor, who would override the automatic deduction to reflect the actual
time worked. Bolin explains: “This was because employees often took their lunch
break at irregular times, as time permitted, and there was no way for the hospital to
know if an employee never took a lunch break unless the employee told their
supervisor.” Id. (Bolin Aff., ¶ 39). Bolin states that he is not aware of instances
where a supervisor failed to follow the foregoing policy, nor is he aware of
circumstances that put Delta on notice that employees were not reporting missed
Delta points to testimony set forth in the aforementioned supervisor
affidavits, which repeats Bolin’s assertion that “the employee was responsible for
notifying the employee’s supervisor so the supervisor could override the automatic
deduction to reflect the time worked.” ECF Nos. 31-13 through 31-27. Each
supervisor affidavit contains the following statement:
I can state that, in my capacity as a supervisor, I never failed to make
such an adjustment if a request was made to me by an employee under
my supervision. In addition, I am not aware of any situation where any
employee ever requested an adjustment and the hospital failed to make
the adjustment. Certainly no employee made such a complaint to me.
Delta argues that in light of the evidence presented, each plaintiff has the
burden to show either that she notified a supervisor that she missed lunch breaks
and the supervisor failed to adjust her time record, or that a supervisor had reason
to know about the plaintiff’s missed lunch breaks. Regarding the first alternative,
Delta reports that in response to discovery requests, Plaintiffs were unable to “cite
even one specific instance where they asked a supervisor to modify a time card,
and the hospital failed to do so.” ECF No. 36, at 21. However, liability under the
FLSA does not depend on whether Plaintiffs fulfilled a duty to report overtime, but
whether Delta knew or had reason to believe that Plaintiffs performed work for
which they were not compensated. See 29 C.F.R. § 785.11.
As for the second alternative, each named plaintiff has alleged Delta
“knew” that she worked though her lunch period. Delta insists that the
supervisors’ testimony demonstrates that Plaintiffs’ allegations are untrue.
However, Delta fails to present evidence that the affiants served as Plaintiffs’
supervisors or that the affiants have specific, personal knowledge regarding
Plaintiffs’ individual claims. The supervisors’ general and unvaried testimony
simply fails to demonstrate an absence of evidence to support Plaintiffs’ claims.
Thus, Plaintiffs have no burden at this juncture to come forward with evidence
supporting the claim that Delta knew that they worked through lunch breaks
Finally, Delta asserts that there are no “genuine factual issues tending to
prove the plaintiffs’ claims that they worked more than [forty] hours per week
without being compensated.” EFC No. 36, at 22. According to Delta, Plaintiffs
can overcome summary judgment only if they come forward with specific facts to
support their “conclusory allegations.” However, Delta submits no evidence
demonstrating an absence of evidence that Plaintiffs worked overtime without
compensation. Accordingly, Plaintiffs’ claims for overtime based on Delta’s
automatic thirty-minute deduction policy are not subject to dismissal on summary
judgment. However, for reasons previous stated, the Court finds no genuine
issues of fact with respect to Plaintiffs’ claims for overtime based on Delta’s time
IV. Motion to Amend
Plaintiffs seek leave to file an amended complaint that adds class action
claims under Federal Rule of Civil Procedure 23 for unjust enrichment and
promissory estoppel. Delta opposes the motion and asserts that the amendment
would cause it to suffer prejudice. Plaintiffs contend that “[a]ll work that is to be
done to maintain and certify a class action is upon Plaintiffs . . . and requires
minimal work on the part of Defendant[, and] “Defendant has over two months in
which to conduct any additional discovery . . . necessary.” ECF No. 46, at 2.
Plaintiffs further state that the proposed unjust enrichment and promissory estoppel
claims arise from the same facts underlying their original claims.
The Court denies Plaintiffs’ request to amend the complaint for the purpose
of joining class action allegations under Rule 23. Rule 23(c)(1)(A) requires that
district courts determine whether a class action is maintainable “at an early
practicable time” after the commencement of an action, and Local Rule 23.1
provides that motions for class certification shall be filed according to the final
scheduling order entered in a case. In this case, the final scheduling order set
February 16, 2013 as the deadline for Plaintiffs’ motion for class certification, and
the Court finds that Plaintiffs fail to show good cause for altering that deadline.4
The Court further finds that the proposed amendment for class claims under
Rule 23 would be futile. See Knapp v. Hanson, 183 F.3d 786, 790 (8th Cir.
1999)(providing that permission to file an amended complaint may be denied when
the proposed amendment would be futile). The proposed complaint reveals that
Plaintiffs seek class certification under Rule 23(b)(3) for adjudication of unjust
enrichment and promissory estoppel claims of 100 to 300 present and former Delta
employees, who went uncompensated for non-overtime or “straight-time” hours.5
Certification is warranted under Rule 23(b)(3) only if a court finds that “the
questions of law or fact common to class members predominate over any questions
affecting only individual members . . . . ” Fed. Rule Civ. P. 23(b)(3). The
Rule 16 of the Federal Rules of Civil Procedure requires a district judge to issue a
scheduling order that limits the time to join parties, amend pleadings, complete discovery, and
file motions, see Fed. R. Civ. P. 16(b)(1), and it provides that scheduling deadlines “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(4)(b); see also
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 706 (8th Cir. 2008)(quoting Sosa v. Airprint
Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)(“to permit district courts to consider motions . . .
without regard to Rule 16(b) ‘would render scheduling orders meaningless and effectively read
Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure’” ).
The Fair Labor Standards Act provides no stand-alone claim for straight-time
compensation. See Monahan v. County of Chesterfield, VA., 95 F.3d 1263, 1284 (4th Cir.
1996)(“Absent a minimum wage/maximum hour violation, we find no remedy under the FLSA
for pure gap [straight] time claims.”); Arnold v. Arkansas, 910 F. Supp. 1385, 1394 (E.D. Ark.
1995)(holding that claims for straight time pay for work periods when no overtime was worked
are not cognizable under the FLSA).
predominance standard requires that common questions predominate over
individual questions, and it “tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
In deciding whether common issues predominate over individual issues, a
court must conduct a rigorous analysis, including an examination of what the
parties would be required to prove at trial. See In re Zurn Pex Plumbing Products
Liability Litigation, 644 F.3d 604, 611 (8th Cir. 2011)(citing Avritt v. Reliastar Life
Ins. Co., 615 F.3d 1023, 1029 (8th Cir. 2010)). “The nature of the evidence that
will suffice to resolve a question determines whether the question is common or
individual.” Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005). If the
evidence required to resolve a particular question would vary among individual
class members, it is an individual question. See id. But if the same evidence
would suffice for each member, then it becomes a common question. See id.
Without question, claims for promissory estoppel would require the
consideration of individual evidence regarding reliance,6 which would overwhelm
To determine whether Delta is equitably estopped with respect to a particular plaintiff,
an individualized inquiry would be required to determine when the cause of action accrued,
what misrepresentations were made and when, and whether the plaintiff relied on the
misrepresentations. See Van Dyke v. Glover , 326 Ark. 736, 745, 934 S.W.2d 204, 209 (1996).
any common questions of law or fact presented by class claims.
IT IS THEREFORE ORDERED that Plaintiffs’ motion for conditional
certification (docket entry #19) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendant’s motion for summary judgment
(docket entry #35) is GRANTED IN PART AND DENIED IN PART. Plaintiffs’ claims
based on time rounding practices are summarily dismissed, but Plaintiff’s claims based on
automatic time deductions for lunch breaks remain for trial.
IT IS FURTHER ORDERED that Plaintiffs’ motion for leave to amend (docket
entry #46) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to strike (docket entry #41) is
IT IS SO ORDERED THIS 17TH DAY OF APRIL, 2013.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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