Williams v. U.S. Bank National Association

Filing 83

STIPULATION and ORDER ALLOWING PLAINTIFF TO FILE AMENDED COMPLAINT signed by Judge Lawrence K. Karlton on 11/15/2013. Plaintiff may have leave to file her First Amended Complaint, attached as Exhibit A. (Attachments: # 1 Exhibit A)(Zignago, K.)

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 1 of 28

EXHIBIT A

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 2 of 28
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Matthew C. Helland, CA State Bar No. 250451
[e-mail]
NICHOLS KASTER, LLP
One Embarcadero Center, Suite 720
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff and those similarly situated

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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KAREN WILLIAMS, SANDRA ADAMS,
LISA CRAWFORD, DEBRA DUDLEY,
KENNETH FREESTONE, CONNIE LEITING,
MARIO MORA, JAMIE NOONAN-SILVA,
and KIMBERLY SEYMOUR individually and
on behalf of all others similarly situated,
Plaintiff,

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v.
U.S. BANK NATIONAL ASSOCIATION
and DOES 1-50, inclusive,

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Defendants.

Case No.: 2:12-cv-01907-LKK-EFB
FIRST AMENDED COLLECTIVE
ACTION COMPLAINT
(1) Failure to Pay Overtime Compensation
in Violation of the Fair Labor Standards
Act (29 U.S.C. § 201, et seq.)
(2) Failure to Pay Overtime Compensation
in Violation of California Law (Cal. Lab.
Code §§ 510, 1194, and 1198, and IWC
Wage Order(s))
(3) Waiting Time Penalties (Cal. Lab.
Code §§ 201-203)

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(4) Failure to Provide Itemized Wage
Statements (Cal. Lab. Code § 226)
(5) Failure to Provide and/or Authorize
Meal and Rest Periods (Cal. Lab. Code §
226.7)

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(6) Violation of California Business and
Professions Code §§ 17200 et seq.
DEMAND FOR JURY TRIAL

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FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 3 of 28
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Plaintiffs Karen Williams, Sandra Adams, Lisa Crawford, Debra Dudley, Kenneth

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Freestone, Connie Leiting, Mario Mora, Jamie Noonan-Silva, and Kimberly Seymour

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(“Plaintiffs”), on their own behalf and on behalf of all similarly situated individuals, by and

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through her attorneys Nichols Kaster, LLP, brings this action against Defendant U.S. Bank

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National Association (“Defendant”), and certain Doe Defendants, for damages and other relief

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relating to violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq and

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California Wage and Hour law.

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JURISDICTION AND VENUE
1.

This Court has jurisdiction to hear this Complaint and to adjudicate the claims

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stated herein under 28 U.S.C. § 1331 because this case is brought under the Fair Labor Standards

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Act, 29 U.S.C. § 201 et seq. This Court also has supplemental jurisdiction over the California

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state law claims pursuant to 28 U.S.C. § 1367.

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2.

Venue is proper in the United States District Court for the Eastern District of

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California pursuant to 28 U.S.C. § 1391 because Defendant operates in this district, and because a

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substantial part of the events or omissions giving rise to the claims occurred in this district.

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Pursuant to L.R. 120, this action is properly assigned to the Sacramento Division of the Eastern

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District of California because a substantial portion of the events or omissions giving rise to the

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claims occurred in Placer County, California.

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THE PARTIES
3.

Plaintiff Karen Williams is an individual residing in Rancho Cordova, California

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(Sacramento County). Plaintiff Williams was employed by Defendant from approximately

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September 2010 to April 2011 as a mortgage underwriter in Defendant’s Roseville, California

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office (Placer County).

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4.

Plaintiff Sandra Adams is an individual residing in Cameron Park, California.

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Plaintiff Adams has been employed by Defendant since approximately 2011, and was previously

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employed by Defendant from approximately February 2008 to 2010 as a mortgage underwriter in

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Defendant’s Roseville, California office (Placer County).

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5.

Plaintiff Lisa Crawford is an individual residing in Tustin, California. Plaintiff
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Crawford was employed by Defendant from approximately November 2008 to December 2011 as

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a mortgage underwriter in Defendant’s Los Alamitos, California office (Orange County).

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Plaintiff Debra Dudley is an individual residing in Marina, California. Plaintiff

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Dudley was employed by Defendant from approximately February 2011 to July 2012 as a

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mortgage underwriter in Defendant’s Campbell, California office (Santa Clara County).

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7.

Plaintiff Kenneth Freestone is an individual residing in Livermore, California.

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Plaintiff Kenneth Freestone has been employed by Defendants since approximately June 2010 as

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a mortgage underwriter in Defendant’s Campbell, California office (Santa Clara County).

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8.

Plaintiff Connie Leiting is an individual residing in Sacramento, California.

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Plaintiff Connie Leiting was employed by Defendant from approximately October 2003 to

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September 2012 as a mortgage underwriter in Defendant’s Roseville, California office (Placer

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County).

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9.

Plaintiff Mario Mora is an individual residing in Hawthorne, California. Plaintiff

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Mora was employed by Defendant from approximately November 2009 to February 2012 as a

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mortgage underwriter in Defendant’s Los Alamitos, California office (Orange County).

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10.

Plaintiff Jamie Noonan-Silva is an individual residing in Citrus Heights,

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California. Plaintiff Noonan-Silva has been employed by Defendant since approximately

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December 2008 as a mortgage underwriter in Defendant’s Roseville, California office (Placer

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County).

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11.

Plaintiff Kimberly Seymour is an individual residing in Fair Oaks, California.

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Plaintiff Seymour was employed by Defendant from approximately 2008 to November 2011 as a

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mortgage underwriter in Defendant’s Roseville, California office (Placer County).

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12.

Plaintiffs Adams, Crawford, Dudley, Freestone, Leiting, Mora, Noonan-Silva, and

Seymour are referred to collectively herein as the “California State Law Plaintiffs”.
13.

Plaintiffs bring this action on behalf of themselves and all other similarly situated

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individuals pursuant to 29 U.S.C. § 216(b). Plaintiffs and the similarly situated individuals are, or

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were, employed by Defendant as mortgage underwriters across the country during the applicable

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statutory period.
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14.

Defendant U.S. Bank National Association is a wholly owned subsidiary of U.S.

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Bancorp. Defendant does business and maintains offices in cities throughout the country,

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including Roseville, California (Placer County). Defendant employed Plaintiff and the similarly

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situated individuals within the meaning of the FLSA, 29 U.S.C. § 203. At all relevant times,

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Defendant’s gross annual sales made or business done has been in excess of $500,000. Defendant

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operates in interstate commerce by, among other things, selling mortgage loan products in

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multiple states.

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15.

Defendants Does 1-50, inclusive, are sued herein under fictitious names. Their

true names and capacities are unknown to Plaintiff. When their true names and capacities are

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ascertained, Plaintiff will amend this Complaint by inserting their true names and capacities

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herein. Plaintiff is informed and believes and thereon alleges that each of the fictitiously-named

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defendants is responsible in some manner for the occurrences herein alleged, and that the

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damages of Plaintiff and the putative class members herein alleged were proximately caused by

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such Defendant.

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FACTUAL ALLEGATIONS
16.

At all times relevant herein, Defendant operated a willful scheme to deprive its

mortgage underwriters of overtime compensation.
17.

Plaintiffs and the similarly situated individuals worked as mortgage underwriters

for Defendant during the applicable statutory period.
18.

Defendant routinely suffered and permitted Plaintiffs and the other mortgage

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underwriters to work in excess of eight hours per day and forty hours per week. However,

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Defendant improperly classified its mortgage underwriters as “exempt” from the FLSA and state

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wage and hour law, and therefore did not pay them overtime compensation for all overtime hours

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worked. Defendant uniformly applied this policy and practice to all mortgage underwriters.

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19.

Defendant did not keep accurate records of the hours worked by Plaintiffs and the

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other mortgage underwriters. Defendant never instructed Plaintiffs or other Mortgage

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Underwriters to keep records or their own hours worked. Because Defendant did not pay

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Plaintiffs for all the hours they worked, including overtime hours, Defendants’ wage statements
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did not accurately reflect all hours Plaintiffs worked.
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Defendant uniformly misrepresented to Plaintiffs and the other mortgage

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underwriters that they were ineligible to receive overtime pay. In reality, Plaintiffs and the other

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mortgage underwriters are, and were, nonexempt production employees who are, and were,

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entitled to overtime pay.

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Because Defendant required Plaintiffs to review a certain number of files per day,

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and because Plaintiffs were required to work until they completed their allocation of files,

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Plaintiffs regularly, on average at least weekly, worked through meal periods and rest periods.

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Defendant’s production requirements prevented Plaintiffs from taking uninterrupted meal and rest

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periods.
22.

Defendant’s supervisory employees observed Plaintiffs working through meal and

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rest periods. For example, Plaintiffs and other Mortgage Underwriters regularly ate lunch while

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they worked. Defendant’s supervisory employees observed this activity.

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23.

Defendant was aware, or should have been aware, that Plaintiffs and the other

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mortgage underwriters performed work that required payment of overtime compensation.

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Defendant is aware of wage and hour laws, as evidenced by the fact that it provides overtime

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compensation to other employees who are not mortgage underwriters. Moreover, federal courts

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have found mortgage underwriters to be non-exempt as a matter of law.

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24.

Defendant’s conduct, as set forth in this Complaint, was willful and in bad faith.

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Defendant operated under a scheme that has caused significant damages to Plaintiffs and the

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similarly situated individuals.

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COLLECTIVE ACTION ALLEGATIONS
25.

Plaintiffs, on behalf of themselves and all other similarly situated individuals,

restate and incorporate by reference the above paragraphs as if fully set forth herein.
26.

Plaintiffs bring their claims on behalf of themselves and other similarly situated

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employees as authorized under the FLSA, 29 U.S.C. § 216(b). The proposed collective class is as

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follows:

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All persons who are, or have been, employed by Defendant as mortgage
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Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 7 of 28
underwriters at any time within three years prior to this action’s filing date through
the date of final disposition of this action (the “FLSA Collective”).

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27.

Plaintiffs have signed consent forms to join this lawsuit pursuant to 29 U.S.C. §

216(b), which have previously been filed with the Court.
28.

Defendant classified all of its mortgage underwriters as “exempt” from overtime

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under the FLSA. Accordingly, Plaintiffs and the FLSA Collective were subject to Defendant’s

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policy, decision, and/or plan of improperly treating and classifying underwriters as “exempt”

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under the FLSA, and failing to pay appropriate overtime compensation.

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29.

Defendant is liable under the FLSA for failing to properly compensate Plaintiffs

and the FLSA Collective. Accordingly, notice should be sent to the FLSA Collective. There are

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numerous similarly situated current and former employees of Defendant who have been denied

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overtime pay in violation of the FLSA who would benefit from the issuance of a Court-supervised

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notice of this lawsuit and the opportunity to join. Those similarly situated employees are known

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to Defendant and are readily identifiable through Defendant’s records.

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FIRST CLAIM FOR RELIEF

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FAIR LABOR STANDARDS ACT – FAILURE TO PAY OVERTIME

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(on behalf of Plaintiffs and the FLSA Collective)

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30.

Plaintiffs, on behalf of themselves and all other similarly situated individuals,

restate and incorporate by reference the above paragraphs as if fully set forth herein.
31.

The FLSA, 29 U.S.C. § 207, requires each covered employer, such as Defendant,

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to compensate all nonexempt employees at a rate of not less than one and one-half times the

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regular rate of pay for work performed in excess of forty hours per work week.

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32.

Defendant routinely suffered and permitted Plaintiffs and the FLSA Collective to

work more than forty hours per week without overtime compensation.
33.

By failing to compensate Plaintiffs and the FLSA Collective overtime

compensation, Defendant violated the FLSA, 29 U.S.C. § 201 et seq.
34.

By failing to record, report, and/or preserve records of hours worked by Plaintiffs

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and the FLSA Collective, Defendant failed to make, keep, and preserve records with respect to

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each of their employees sufficient to determine their wages, hours, and other conditions and
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practice of employment, in violation of the FLSA, 29 U.S.C. § 201 et seq.
35.

Defendant knew, or showed reckless disregard for the fact, that it failed to pay

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these individuals overtime compensation in violation of the FLSA. The foregoing conduct, as

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alleged in this Compliant, constitutes a willful violation of the FLSA, within the meaning of 29

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U.S.C. § 255(a).

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36.

As a direct and proximate cause of Defendant’s unlawful conduct, Plaintiffs and

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the FLSA Collective have suffered, and will continue to suffer, a loss of income and other

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damages. Plaintiffs, on behalf of themselves and the FLSA Collective, seek damages in the

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amount of the unpaid overtime compensation, liquidated damages as provided by the FLSA, 29

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U.S.C. § 216(b), interest, attorneys’ fees and costs, and such other legal and equitable relief as the

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Court deems just and proper.

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SECOND CLAIM FOR RELIEF

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CALIFORNIA STATE LABOR CODE – FAILURE TO PAY OVERTIME

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Cal. Wage Order No. 4; Cal. Labor Code §§ 510, 1194

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(On Behalf of the California State Law Plaintiffs)

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37.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the preceding paragraphs.
38.

At all times relevant to this action, the California State Law Plaintiffs were

employed by Defendants within the meaning of the California Labor Code.
39.

By the course of conduct set forth above, Defendant violated Cal. Labor Code §§

510 and 1194.
40.

The California Labor Code requires employers, such as Defendant, to pay

overtime compensation to all non-exempt employees.
41.

The California State Law Plaintiffs were non-exempt employees entitled to be paid

proper overtime compensation for all hours worked.
42.

During the relevant statutory period, the California State Law Plaintiffs worked in

excess of eight hours in a work day and/or forty hours in a work week for Defendant.

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43.

California State Law Plaintiffs proper overtime compensation for overtime hours worked.

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44.

Defendant had a policy and practice of failing and refusing to pay proper overtime

pay to the California State Law Plaintiffs for their hours worked.

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During the relevant statutory period, Defendant failed and refused to pay the

45.

As a result of Defendant’s failure to pay wages earned and due, Defendant violated

the California Labor Code.

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46.

As a direct and proximate result of Defendant’s unlawful conduct, as set forth

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herein, the California State Law Plaintiffs have sustained damages, including loss of earnings for

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hours of overtime worked on behalf of Defendant, prejudgment interest, and attorneys’ fees and

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costs.

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THIRD CLAIM FOR RELIEF

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CALIFORNIA WAGE PAYMENT PROVISIONS OF LABOR CODE

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Cal. Labor Code §§ 201, 202 & 203

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(On Behalf of the California State Law Plaintiffs Except for Plaintiffs Adams, Freestone, and

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Noonan-Silva)

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47.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the preceding paragraphs.
48.

California Labor Code §§ 201 and 202 require Defendant to pay employees all

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wages due within the time specified by law. California Labor Code § 203 provides that if an

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employer willfully fails to timely pay such wages, the employer must continue to pay the subject

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employees’ wages until the back wages are paid in full or an action is commenced, up to a

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maximum of thirty days of wages.

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49.

The California State Law Plaintiffs are entitled to unpaid overtime compensation,

but to date have not received all such compensation.
50.

As a consequence of Defendant’s willful conduct in not paying proper

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compensation for all hours worked, the California State Law Plaintiffs (except for Plaintiffs

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Adams, Freestone and Noonan-Silva) are entitled to up to thirty days’ wages under Labor Code §

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203, together with interest thereon, and attorneys’ fees and costs.
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FOURTH CLAIM FOR RELIEF

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CALIFORNIA WAGE STATEMENT PROVISIONS OF LABOR CODE

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Cal. Wage Order No. 4; Cal. Labor Code § 226

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(On Behalf of Plaintiffs Adams, Freestone and Noonan-Silva)

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51.

Plaintiffs Adams, Freestone and Noonan-Silva allege and incorporate by reference

the allegations in the preceding paragraphs.
52.

Defendant knowingly and intentionally failed to provide timely, accurate, itemized

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wage statements including, inter alia, hours worked, to Plaintiffs Adams and Freestone in

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accordance with Labor Code § 226(a) and the IWC Wage Orders. Such failure caused injury to

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Plaintiffs Adams and Freestone, by, among other things, impeding them from knowing the

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amount of wages to which they are and were entitled.

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53.

Plaintiffs Adams, Freestone and Noonan-Silva are entitled to and seek injunctive

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relief requiring Defendant to comply with Labor Code 226(a) and further seek the amount

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provided under Labor Code 226(e), including the greater of all actual damages or fifty dollars for

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the initial pay period in which a violation occurs and one hundred dollars ($100) for each

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violation in a subsequent pay period.

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FIFTH CLAIM FOR RELIEF

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CALIFORNIA REST BREAK AND MEAL PERIOD PROVISIONS

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Cal. Wage Order No. 4; Cal. Labor Code §§ 226 et seq., 512,

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(On Behalf of the California State Law Plaintiffs)
54.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the proceeding paragraphs.
55.

California Labor Code section 512 prohibits an employer from employing an

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employee for a work period of more than five hours per day without providing the employee with

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a meal period of not less than 30 minutes, or for a work period of more than 10 hours per day

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without providing the employee with a second meal period of not less than 30 minutes.

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56.

Section 11 of Wage Order No. 4 provides (and at all times relevant hereto

provided) in relevant part that:
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No employer shall employ any person for a work period of more than five

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(5) hours without a meal period of not less than 30 minutes, except that

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when a work period of not more than six (6) hours will complete the day’s

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work the meal period may be waived by mutual consent of the employer and

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employee. Unless the employee is relieved of all duty during a 30 minute

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meal period, the meal period shall be considered an "on duty" meal period

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and counted as time worked. An "on duty" meal period shall be permitted

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only when the nature of the work prevents an employee from being relieved

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of all duty and when by written agreement between the parties an on-the-job

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paid meal period is agreed to. The written agreement shall state that the

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employee may, in writing, revoke the agreement at any time. If an employer

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fails to provide an employee a meal period in accordance with the applicable

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provisions of this Order, the employer shall pay the employee one (1) hour

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of pay at the employee’s regular rate of compensation for each work day

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that the meal period is not provided.

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57.

Section 12 of Wage Order No. 4 provides (and at all times relevant hereto

provided) in relevant part that:

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Every employer shall authorize and permit all employees to take rest

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periods, which insofar as practicable shall be in the middle of each work

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period. The authorized rest period time shall be based on the total hours

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worked daily at the rate of ten (10) minutes net rest time per four (4) hours

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or major fraction thereof. However, a rest period need not be authorized for

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employees whose total daily work time is less than three and one-half (3 ½)

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hours. Authorized rest period time shall be counted, as hours worked, for

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which there shall be no deduction from wages. If an employer fails to

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provide an employee a rest period in accordance with the applicable

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provisions of this Order, the employer shall pay the employee one (1) hour

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of pay at the employee’s regular rate of compensation for each work day

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that the rest period is not provided.

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58.

California Labor Code section 226.7 prohibits any employer from requiring any

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employee to work during any meal or rest period mandated by an applicable IWC wage order,

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and provides that an employer that fails to provide an employee with a required rest break or meal

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period shall pay that employee one additional hour of pay at the employee’s regular rate of

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compensation for each work day that the employer does not provide a compliant meal or rest

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period.

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59.

Defendant knowingly failed to provide the California State Law Plaintiffs with

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meal periods as required by law, and knowingly failed to authorize and permit the California

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State Law Plaintiffs to take rest periods as required by law. The California State Law Plaintiffs

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are therefore entitled to payment of the meal and rest period premiums as provided by law.

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SIXTH CLAIM FOR RELIEF

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CALIFORNIA UNFAIR COMPETITION LAW

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Cal. Bus. & Prof. Code §§ 17200 et seq.

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(On Behalf of the California State Law Plaintiffs)
60.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the preceding paragraphs.
61.

The foregoing conduct, as alleged, violates the California Unfair Competition Law

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(“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. of the Cal. Bus. & Prof. Code prohibits unfair

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competition by prohibiting, inter alia, any unlawful or unfair business acts or practices.

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62.

Beginning at a date unknown to the California State Law Plaintiffs, but at least as

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long ago as the year 2009, Defendant committed acts of unfair competition, as defined by the

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UCL, by, among other things, engaging in the acts and practices described herein. Defendant’s

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conduct as herein alleged has injured the California State Law Plaintiffs by wrongfully denying

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them earned wages, and therefore was substantially injurious to the California State Law

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Plaintiffs.

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63.

Defendant engaged in unfair competition in violation of the UCL by violating,

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inter alia, each of the following laws. Each of these violations constitutes an independent and

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separate violation of the UCL:

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A.

Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.

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B.

California Labor Code §§ 510 & 1194

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C.

California Labor Code §§ 226.7 & 512

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64.

Defendant’s course of conduct, acts, and practices in violation of the California

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laws mentioned in the above paragraph constitute a separate and independent violation of the

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UCL.

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Defendant’s conduct described herein violates the policy or spirit of such laws or

otherwise significantly threatens or harms competition.
65.

The harm to the California State Law Plaintiffs in being wrongfully denied

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lawfully earned wages outweighed the utility, if any, of Defendant’s policies or practices and

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therefore, Defendant’s actions described herein constitute an unfair business practice or act within

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the meaning of the UCL.

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66.

Pursuant to Business and Professions Code § 17200 et seq., the California State

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Law Plaintiffs are entitled to restitution of the overtime earnings and other unpaid wages alleged

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herein that were withheld and retained by Defendant during a period that commences four years

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prior to the filing of this action, a permanent injunction requiring Defendant to pay required

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wages, an award of attorneys’ fees pursuant to Code of Civil Procedure § 1021.5 and other

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applicable law, and costs.

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PRAYER FOR RELIEF
67.

WHEREFORE, Plaintiffs, on behalf of themselves and all members of the FLSA

Collective, pray for relief as follows:
A. Designation of this action as a collective action on behalf of the FLSA

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Collective and prompt issuance of notice pursuant to 29 U.S.C. § 216(b) to all

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similarly situated members of the Collective, apprising them of the pendency

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of this action, and permitting them to assert timely FLSA claims in this action

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by filing individual consent forms pursuant to 29 U.S.C. § 216(b);
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B. Judgment against Defendant for an amount equal to Plaintiff and the FLSA

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Collective’s unpaid overtime wages at the applicable rates;

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C. A finding that Defendant’s conduct was willful

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D. An equal amount to the overtime wages as liquidated damages;

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E. All costs and attorney’ fees incurred prosecuting these claims, including expert

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fees;

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F. Pre-judgment and post-judgment interest, as provided by law;

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G. Leave to add additional plaintiffs and/or state law claims by motion, the filing

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of written consent forms, or any other method approved by the Court; and

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H. Such further relief as the Court deems just and equitable.

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68.

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WHEREFORE, the California State Law Plaintiffs pray for relief as follows:
A.

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Unpaid overtime wages, other due wages, injunctive relief, and unpaid
meal and rest premiums pursuant to California law;

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B.

Appropriate equitable relief to remedy Defendants’ violations of state law;

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C.

Appropriate statutory penalties;

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D.

An award of damages and restitution to be paid by Defendant according to

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proof;

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E.

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Attorneys’ fees and costs of suit, including expert fees pursuant to Cal.
Labor §§ 1194, and California Code of Civil Procedure § 1021.5;

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F.

Pre-judgment and post-judgment interest, as provided by law; and

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G.

Such other equitable relief as the Court may deem just and proper.

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DEMAND FOR JURY TRIAL

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69.

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs,

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individually and on behalf of all others similarly situated, demand a trial by jury.

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Dated:

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NICHOLS KASTER, LLP
By:
Matthew C. Helland
Attorneys for Plaintiff and those similarly situated
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Robert L. Schug, CA State Bar No. 249640
[e-mail]
Matthew C. Helland, CA State Bar No. 250451
[e-mail]
NICHOLS KASTER, LLP
One Embarcadero Center, Suite 720
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

7

Attorneys for Plaintiff and those similarly situated

2
3
4
5

8

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

9
10
11
12
13

KAREN WILLIAMS, SANDRA ADAMS,
LISA CRAWFORD, DEBRA DUDLEY,
KENNETH FREESTONE, CONNIE LEITING,
MARIO MORA, JAMIE NOONAN-SILVA,
and KIMBERLY SEYMOUR individually and
on behalf of all others similarly situated,
Plaintiff,

14
15
16

v.
U.S. BANK NATIONAL ASSOCIATION
and DOES 1-50, inclusive,

17
18

Defendants.

Case No.: 2:12-cv-01907-LKK-EFB
FIRST AMENDED COLLECTIVE
ACTION COMPLAINT
(1) Failure to Pay Overtime Compensation
in Violation of the Fair Labor Standards
Act (29 U.S.C. § 201, et seq.)
(2) Failure to Pay Overtime Compensation
in Violation of California Law (Cal. Lab.
Code §§ 510, 1194, and 1198, and IWC
Wage Order(s))
(3) Waiting Time Penalties (Cal. Lab.
Code §§ 201-203)

19
20
21
22

(4) Failure to Provide Itemized Wage
Statements (Cal. Lab. Code § 226)
(5) Failure to Provide and/or Authorize
Meal and Rest Periods (Cal. Lab. Code §
226.7)

23
24

(6) Violation of California Business and
Professions Code §§ 17200 et seq.

25
26

DEMAND FOR JURY TRIAL

27
28
FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 16 of 28
1
2
3

Plaintiffs Karen Williams, Sandra Adams, Lisa Crawford, Debra Dudley, Kenneth

4

Freestone, Connie Leiting, Mario Mora, Jamie Noonan-Silva, and Kimberly Seymour

5

(“Plaintiffs”), on her their own behalf and on behalf of all similarly situated individuals, by and

6

through her attorneys Nichols Kaster, LLP, brings this action against Defendant U.S. Bank

7

National Association (“Defendant”), and certain Doe Defendants, for damages and other relief

8

relating to violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq and

9

California Wage and Hour law.

10
11

JURISDICTION AND VENUE
1.

This Court has jurisdiction to hear this Complaint and to adjudicate the claims

12

stated herein under 28 U.S.C. § 1331 because this case is brought under the Fair Labor Standards

13

Act, 29 U.S.C. § 201 et seq. This Court also has supplemental jurisdiction over the California

14

state law claims pursuant to 28 U.S.C. § 1367.

15

2.

Venue is proper in the United States District Court for the Eastern District of

16

California pursuant to 28 U.S.C. § 1391 because Defendant operates in this district, and because a

17

substantial part of the events or omissions giving rise to the claims occurred in this district.

18

Pursuant to L.R. 120, this action is properly assigned to the Sacramento Division of the Eastern

19

District of California because a substantial portion of the events or omissions giving rise to the

20

claims occurred in Placer County, California.

21
22

THE PARTIES
3.

Individual and representative Plaintiff Karen Williams is an individual residing in

23

Rancho Cordova, California (Sacramento County). Plaintiff Williams was employed by

24

Defendant from approximately September 2010 to April 2011 as a mortgage underwriter in

25

Defendant’s Roseville, California office (Placer County).

26

4.

Plaintiff Sandra Adams is an individual residing in Cameron Park, California.

27

Plaintiff Adams has been employed by Defendant since approximately 2011, and was previously

28

employed by Defendant from approximately February 2008 to 2010 as a mortgage underwriter in
-2FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 17 of 28
1
2

Defendant’s Roseville, California office (Placer County).
5.

Plaintiff Lisa Crawford is an individual residing in Tustin, California. Plaintiff

3

Crawford was employed by Defendant from approximately November 2008 to December 2011 as

4

a mortgage underwriter in Defendant’s Los Alamitos, California office (Orange County).

5

6.

Plaintiff Debra Dudley is an individual residing in Marina, California. Plaintiff

6

Dudley was employed by Defendant from approximately February 2011 to July 2012 as a

7

mortgage underwriter in Defendant’s Campbell, California office (Santa Clara County).

8
9
10
11

7.

Plaintiff Kenneth Freestone is an individual residing in Livermore, California.

Plaintiff Kenneth Freestone has been employed by Defendants since approximately June 2010 as
a mortgage underwriter in Defendant’s Campbell, California office (Santa Clara County).
8.

Plaintiff Connie Leiting is an individual residing in Sacramento, California.

12

Plaintiff Connie Leiting was employed by Defendant from approximately October 2003 to

13

September 2012 as a mortgage underwriter in Defendant’s Roseville, California office (Placer

14

County).

15

9.

Plaintiff Mario Mora is an individual residing in Hawthorne, California. Plaintiff

16

Mora was employed by Defendant from approximately November 2009 to February 2012 as a

17

mortgage underwriter in Defendant’s Los Alamitos, California office (Orange County).

18

10.

Plaintiff Jamie Noonan-Silva is an individual residing in Citrus Heights,

19

California. Plaintiff Noonan-Silva has been employed by Defendant since approximately

20

December 2008 as a mortgage underwriter in Defendant’s Roseville, California office (Placer

21

County).

22

11.

Plaintiff Kimberly Seymour is an individual residing in Fair Oaks, California.

23

Plaintiff Seymour was employed by Defendant from approximately 2008 to November 2011 as a

24

mortgage underwriter in Defendant’s Rosevilledale, California office (Placer County).

25
26
27
28

3.12.

Plaintiffs Adams, Crawford, Dudley, Freestone, Leiting, Mora, Noonan-Silva, and

Seymour are referred to collectively herein as the “California State Law Plaintiffs”.
4.13.

Plaintiffs brings this action on behalf of herself themselves and all other similarly

situated individuals pursuant to 29 U.S.C. § 216(b). Plaintiffs and the similarly situated
-3FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 18 of 28
1

individuals are, or were, employed by Defendant as mortgage underwriters across the country

2

during the applicable statutory period.

3

5.14.

Defendant U.S. Bank National Association is a wholly owned subsidiary of U.S.

4

Bancorp. Defendant does business and maintains offices in cities throughout the country,

5

including Roseville, California (Placer County). Defendant employed Plaintiff and the similarly

6

situated individuals within the meaning of the FLSA, 29 U.S.C. § 203. At all relevant times,

7

Defendant’s gross annual sales made or business done has been in excess of $500,000. Defendant

8

operates in interstate commerce by, among other things, selling mortgage loan products in

9

multiple states.

10

6.15.

Defendants Does 1-50, inclusive, are sued herein under fictitious names. Their

11

true names and capacities are unknown to Plaintiff. When their true names and capacities are

12

ascertained, Plaintiff will amend this Complaint by inserting their true names and capacities

13

herein. Plaintiff is informed and believes and thereon alleges that each of the fictitiously-named

14

defendants is responsible in some manner for the occurrences herein alleged, and that the

15

damages of Plaintiff and the putative class members herein alleged were proximately caused by

16

such Defendant.

17
18
19
20
21
22
23
24

FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS
7.16.

At all times relevant herein, Defendant operated a willful scheme to deprive its

mortgage underwriters of overtime compensation.
8.17.

Plaintiffs and the similarly situated individuals worked as mortgage underwriters

for Defendant during the applicable statutory period.
9.18.

Defendant routinely suffered and permitted Plaintiffs and the other mortgage

25

underwriters to work in excess of eight hours per day and forty hours per week. However,

26

Defendant improperly classified its mortgage underwriters as “exempt” from the FLSA and state

27

wage and hour law, and therefore did not pay them overtime compensation for all overtime hours

28

worked. Defendant uniformly applied this policy and practice to all mortgage underwriters.
-4FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 19 of 28
1

10.19. Defendant did not keep accurate records of the hours worked by Plaintiffs and the

2

other mortgage underwriters. Defendant never instructed Plaintiffs or other Mortgage

3

Underwriters to keep records or their own hours worked. Because Defendant did not pay

4

Plaintiffs for all the hours they worked, including overtime hours, Defendants’ wage statements

5

did not accurately reflect all hours Plaintiffs worked.

6

20.

Defendant uniformly misrepresented to Plaintiffs and the other mortgage

7

underwriters that they were ineligible to receive overtime pay. In reality, Plaintiffs and the other

8

mortgage underwriters are, and were, nonexempt production employees who are, and were,

9

entitled to overtime pay.

10

21.

Because Defendant required Plaintiffs to review a certain number of files per day,

11

and because Plaintiffs were required to work until they completed their allocation of files,

12

Plaintiffs regularly, on average at least weekly, worked through meal periods and rest periods.

13

Defendant’s production requirements prevented Plaintiffs from taking uninterrupted meal and rest

14

periods.

15

22.

Defendant’s supervisory employees observed Plaintiffs working through meal and

16

rest periods. For example, Plaintiffs and other Mortgage Underwriters regularly ate lunch while

17

they worked. Defendant’s supervisory employees observed this activity.

18

11.

19

12.23. Defendant was aware, or should have been aware, that Plaintiffs and the other

20

mortgage underwriters performed work that required payment of overtime compensation.

21

Defendant is aware of wage and hour laws, as evidenced by the fact that it provides overtime

22

compensation to other employees who are not mortgage underwriters. Moreover, federal courts

23

have found mortgage underwriters to be non-exempt as a matter of law.

24

13.24. Defendant’s conduct, as set forth in this Complaint, was willful and in bad faith.

25

Defendant operated under a scheme that has caused significant damages to Plaintiffs and the

26

similarly situated individuals.

27

COLLECTIVE ACTION ALLEGATIONS

28
-5FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 20 of 28
1

14.25. Plaintiffs, on behalf of herself themselves and all other similarly situated

2

individuals, restates and incorporates by reference the above paragraphs as if fully set forth

3

herein.

4

15.26. Plaintiffs brings her their claims on behalf of herself themselves and other

5

similarly situated employees as authorized under the FLSA, 29 U.S.C. § 216(b). The proposed

6

collective class is as follows:
All persons who are, or have been, employed by Defendant as mortgage
underwriters at any time within three years prior to this action’s filing date through
the date of final disposition of this action (the “FLSA Collective”).

7
8

16.27. Plaintiffs have has signed a consent forms to join this lawsuit pursuant to 29

9
10

U.S.C. § 216(b), which is attached hereto as Exhibithave previously been filed with the Court A.

11

As this case proceeds, it is likely that other individuals will sign consent forms and join as opt in

12

plaintiffs.

13

17.28. Defendant classified all of its mortgage underwriters as “exempt” from overtime

14

under the FLSA. Accordingly, Plaintiffs and the FLSA Collective were subject to Defendant’s

15

policy, decision, and/or plan of improperly treating and classifying underwriters as “exempt”

16

under the FLSA, and failing to pay appropriate overtime compensation.
18.29. Defendant is liable under the FLSA for failing to properly compensate Plaintiffs

17
18

and the FLSA Collective. Accordingly, notice should be sent to the FLSA Collective. There are

19

numerous similarly situated current and former employees of Defendant who have been denied

20

overtime pay in violation of the FLSA who would benefit from the issuance of a Court-supervised

21

notice of this lawsuit and the opportunity to join. Those similarly situated employees are known

22

to Defendant and are readily identifiable through Defendant’s records.

23

FIRST CLAIM FOR RELIEF

24

FAIR LABOR STANDARDS ACT – FAILURE TO PAY OVERTIME

25

(on behalf of Plaintiffs and the FLSA Collective)
19.30. Plaintiffs, on behalf of herself themselves and all other similarly situated

26
27

individuals, restates and incorporates by reference the above paragraphs as if fully set forth

28

herein.
-6FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 21 of 28
1

20.31. The FLSA, 29 U.S.C. § 207, requires each covered employer, such as Defendant,

2

to compensate all nonexempt employees at a rate of not less than one and one-half times the

3

regular rate of pay for work performed in excess of forty hours per work week.

4
5
6
7
8
9

21.32. Defendant routinely suffered and permitted Plaintiffs and the FLSA Collective to
work more than forty hours per week without overtime compensation.
22.33. By failing to compensate Plaintiffs and the FLSA Collective overtime
compensation, Defendant violated the FLSA, 29 U.S.C. § 201 et seq.
23.34. By failing to record, report, and/or preserve records of hours worked by Plaintiffs
and the FLSA Collective, Defendant failed to make, keep, and preserve records with respect to

10

each of their employees sufficient to determine their wages, hours, and other conditions and

11

practice of employment, in violation of the FLSA, 29 U.S.C. § 201 et seq.

12

24.35. Defendant knew, or showed reckless disregard for the fact, that it failed to pay

13

these individuals overtime compensation in violation of the FLSA. The foregoing conduct, as

14

alleged in this Compliant, constitutes a willful violation of the FLSA, within the meaning of 29

15

U.S.C. § 255(a).

16

36.

As a direct and proximate cause of Defendant’s unlawful conduct, Plaintiffs and

17

the FLSA Collective have suffered, and will continue to suffer, a loss of income and other

18

damages. Plaintiffs, on behalf of herself themselves and the FLSA Collective, seeks damages in

19

the amount of the unpaid overtime compensation, liquidated damages as provided by the FLSA,

20

29 U.S.C. § 216(b), interest, attorneys’ fees and costs, and such other legal and equitable relief as

21

the Court deems just and proper.

22

SECOND CLAIM FOR RELIEF

23

CALIFORNIA STATE LABOR CODE – FAILURE TO PAY OVERTIME

24

Cal. Wage Order No. 4; Cal. Labor Code §§ 510, 1194

25

(On Behalf of the California State Law Plaintiffs)

26
27

37.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the preceding paragraphs.

28
-7FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 22 of 28
1
2

38.

employed by Defendants within the meaning of the California Labor Code.

3
4

39.

40.

41.

42.

43.

44.

Defendant had a policy and practice of failing and refusing to pay proper overtime

pay to the California State Law Plaintiffs for their hours worked.

15
16

During the relevant statutory period, Defendant failed and refused to pay the

California State Law Plaintiffs proper overtime compensation for overtime hours worked.

13
14

During the relevant statutory period, the California State Law Plaintiffs worked in

excess of eight hours in a work day and/or forty hours in a work week for Defendant.

11
12

The California State Law Plaintiffs were non-exempt employees entitled to be paid

proper overtime compensation for all hours worked.

9
10

The California Labor Code requires employers, such as Defendant, to pay

overtime compensation to all non-exempt employees.

7
8

By the course of conduct set forth above, Defendant violated Cal. Labor Code §§

510 and 1194.

5
6

At all times relevant to this action, the California State Law Plaintiffs were

45.

As a result of Defendant’s failure to pay wages earned and due, Defendant violated

the California Labor Code.

17

46.

As a direct and proximate result of Defendant’s unlawful conduct, as set forth

18

herein, the California State Law Plaintiffs have sustained damages, including loss of earnings for

19

hours of overtime worked on behalf of Defendant, prejudgment interest, and attorneys’ fees and

20

costs.

21

THIRD CLAIM FOR RELIEF

22

CALIFORNIA WAGE PAYMENT PROVISIONS OF LABOR CODE

23

Cal. Labor Code §§ 201, 202 & 203

24

(On Behalf of the California State Law Plaintiffs Except for Plaintiffs Adams, Freestone, and

25

Noonan-Silva)

26
27

47.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the preceding paragraphs.

28
-8FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 23 of 28
1

48.

California Labor Code §§ 201 and 202 require Defendant to pay employees all

2

wages due within the time specified by law. California Labor Code § 203 provides that if an

3

employer willfully fails to timely pay such wages, the employer must continue to pay the subject

4

employees’ wages until the back wages are paid in full or an action is commenced, up to a

5

maximum of thirty days of wages.

6
7
8

49.

The California State Law Plaintiffs are entitled to unpaid overtime compensation,

but to date have not received all such compensation.
50.

As a consequence of Defendant’s willful conduct in not paying proper

9

compensation for all hours worked, the California State Law Plaintiffs (except for Plaintiffs

10

Adams, Freestone and Noonan-Silva) are entitled to up to thirty days’ wages under Labor Code §

11

203, together with interest thereon, and attorneys’ fees and costs.

12

FOURTH CLAIM FOR RELIEF

13

CALIFORNIA WAGE STATEMENT PROVISIONS OF LABOR CODE

14

Cal. Wage Order No. 4; Cal. Labor Code § 226

15

(On Behalf of Plaintiffs Adams, Freestone and Noonan-Silva)

16
17
18

51.

Plaintiffs Adams, Freestone and Noonan-Silva allege and incorporate by reference

the allegations in the preceding paragraphs.
52.

Defendant knowingly and intentionally failed to provide timely, accurate, itemized

19

wage statements including, inter alia, hours worked, to Plaintiffs Adams and Freestone in

20

accordance with Labor Code § 226(a) and the IWC Wage Orders. Such failure caused injury to

21

Plaintiffs Adams and Freestone, by, among other things, impeding them from knowing the

22

amount of wages to which they are and were entitled.

23

53.

Plaintiffs Adams, Freestone and Noonan-Silva are entitled to and seek injunctive

24

relief requiring Defendant to comply with Labor Code 226(a) and further seek the amount

25

provided under Labor Code 226(e), including the greater of all actual damages or fifty dollars for

26

the initial pay period in which a violation occurs and one hundred dollars ($100) for each

27

violation in a subsequent pay period.

28

FIFTH CLAIM FOR RELIEF
-9FIRST AMENDED COLLECTIVE ACTION COMPLAINT

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1

CALIFORNIA REST BREAK AND MEAL PERIOD PROVISIONS

2

Cal. Wage Order No. 4; Cal. Labor Code §§ 226 et seq., 512,

3
4
5
6

(On Behalf of the California State Law Plaintiffs)
54.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the proceeding paragraphs.
55.

California Labor Code section 512 prohibits an employer from employing an

7

employee for a work period of more than five hours per day without providing the employee with

8

a meal period of not less than 30 minutes, or for a work period of more than 10 hours per day

9

without providing the employee with a second meal period of not less than 30 minutes.

10
11

56.

Section 11 of Wage Order No. 4 provides (and at all times relevant hereto

provided) in relevant part that:

12

No employer shall employ any person for a work period of more than five

13

(5) hours without a meal period of not less than 30 minutes, except that

14

when a work period of not more than six (6) hours will complete the day’s

15

work the meal period may be waived by mutual consent of the employer and

16

employee. Unless the employee is relieved of all duty during a 30 minute

17

meal period, the meal period shall be considered an "on duty" meal period

18

and counted as time worked. An "on duty" meal period shall be permitted

19

only when the nature of the work prevents an employee from being relieved

20

of all duty and when by written agreement between the parties an on-the-job

21

paid meal period is agreed to. The written agreement shall state that the

22

employee may, in writing, revoke the agreement at any time. If an employer

23

fails to provide an employee a meal period in accordance with the applicable

24

provisions of this Order, the employer shall pay the employee one (1) hour

25

of pay at the employee’s regular rate of compensation for each work day

26

that the meal period is not provided.

27
28

57.

Section 12 of Wage Order No. 4 provides (and at all times relevant hereto

provided) in relevant part that:
-10FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 25 of 28
1

Every employer shall authorize and permit all employees to take rest

2

periods, which insofar as practicable shall be in the middle of each work

3

period. The authorized rest period time shall be based on the total hours

4

worked daily at the rate of ten (10) minutes net rest time per four (4) hours

5

or major fraction thereof. However, a rest period need not be authorized for

6

employees whose total daily work time is less than three and one-half (3 ½)

7

hours. Authorized rest period time shall be counted, as hours worked, for

8

which there shall be no deduction from wages. If an employer fails to

9

provide an employee a rest period in accordance with the applicable

10

provisions of this Order, the employer shall pay the employee one (1) hour

11

of pay at the employee’s regular rate of compensation for each work day

12

that the rest period is not provided.

13

58.

California Labor Code section 226.7 prohibits any employer from requiring any

14

employee to work during any meal or rest period mandated by an applicable IWC wage order,

15

and provides that an employer that fails to provide an employee with a required rest break or meal

16

period shall pay that employee one additional hour of pay at the employee’s regular rate of

17

compensation for each work day that the employer does not provide a compliant meal or rest

18

period.

19

59.

Defendant knowingly failed to provide the California State Law Plaintiffs with

20

meal periods as required by law, and knowingly failed to authorize and permit the California

21

State Law Plaintiffs to take rest periods as required by law. The California State Law Plaintiffs

22

are therefore entitled to payment of the meal and rest period premiums as provided by law.

23

SIXTH CLAIM FOR RELIEF

24

CALIFORNIA UNFAIR COMPETITION LAW

25

Cal. Bus. & Prof. Code §§ 17200 et seq.

26
27
28

(On Behalf of the California State Law Plaintiffs)
60.

The California State Law Plaintiffs allege and incorporate by reference the

allegations in the preceding paragraphs.
-11FIRST AMENDED COLLECTIVE ACTION COMPLAINT

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1

61.

The foregoing conduct, as alleged, violates the California Unfair Competition Law

2

(“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. of the Cal. Bus. & Prof. Code prohibits unfair

3

competition by prohibiting, inter alia, any unlawful or unfair business acts or practices.

4

62.

Beginning at a date unknown to the California State Law Plaintiffs, but at least as

5

long ago as the year 2009, Defendant committed acts of unfair competition, as defined by the

6

UCL, by, among other things, engaging in the acts and practices described herein. Defendant’s

7

conduct as herein alleged has injured the California State Law Plaintiffs by wrongfully denying

8

them earned wages, and therefore was substantially injurious to the California State Law

9

Plaintiffs.

10

63.

Defendant engaged in unfair competition in violation of the UCL by violating,

11

inter alia, each of the following laws. Each of these violations constitutes an independent and

12

separate violation of the UCL:

13

A.

Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.

14

B.

California Labor Code §§ 510 & 1194

15

C.

California Labor Code §§ 226.7 & 512

16

64.

Defendant’s course of conduct, acts, and practices in violation of the California

17

laws mentioned in the above paragraph constitute a separate and independent violation of the

18

UCL.

19

otherwise significantly threatens or harms competition.

20

Defendant’s conduct described herein violates the policy or spirit of such laws or

65.

The harm to the California State Law Plaintiffs in being wrongfully denied

21

lawfully earned wages outweighed the utility, if any, of Defendant’s policies or practices and

22

therefore, Defendant’s actions described herein constitute an unfair business practice or act within

23

the meaning of the UCL.

24

25.66. Pursuant to Business and Professions Code § 17200 et seq., the California State

25

Law Plaintiffs are entitled to restitution of the overtime earnings and other unpaid wages alleged

26

herein that were withheld and retained by Defendant during a period that commences four years

27

prior to the filing of this action, a permanent injunction requiring Defendant to pay required

28
-12FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 27 of 28
1

wages, an award of attorneys’ fees pursuant to Code of Civil Procedure § 1021.5 and other

2

applicable law, and costs.

3
4
5

PRAYER FOR RELIEF
67.

WHEREFORE, Plaintiffs, on behalf of herself themselves and all members of the

FLSA Collective, prays for relief as follows:

6

A. Designation of this action as a collective action on behalf of the FLSA

7

Collective and prompt issuance of notice pursuant to 29 U.S.C. § 216(b) to all

8

similarly situated members of the Collective, apprising them of the pendency

9

of this action, and permitting them to assert timely FLSA claims in this action

10

by filing individual consent forms pursuant to 29 U.S.C. § 216(b);

11

B. Judgment against Defendant for an amount equal to Plaintiff and the FLSA

12

Collective’s unpaid overtime wages at the applicable rates;

13

C. A finding that Defendant’s conduct was willful

14

D. An equal amount to the overtime wages as liquidated damages;

15

E. All costs and attorney’ fees incurred prosecuting these claims, including expert

16

fees;

17

F. Pre-judgment and post-judgment interest, as provided by law;

18

G. Leave to add additional plaintiffs and/or state law claims by motion, the filing

19

of written consent forms, or any other method approved by the Court; and

20

H. Such further relief as the Court deems just and equitable.

21
22
23

68.

WHEREFORE, the California State Law Plaintiffs pray for relief as follows:
A.

24

Unpaid overtime wages, other due wages, injunctive relief, and unpaid
meal and rest premiums pursuant to California law;

25

B.

Appropriate equitable relief to remedy Defendants’ violations of state law;

26

C.

Appropriate statutory penalties;

27

D.

An award of damages and restitution to be paid by Defendant according to

28

proof;
-13FIRST AMENDED COLLECTIVE ACTION COMPLAINT

Case 2:12-cv-01907-LKK-EFB Document 81-1 Filed 11/08/13 Page 28 of 28
1

E.

2

Labor §§ 1194, and California Code of Civil Procedure § 1021.5;

3

F.

4
A.G.

6

8

Pre-judgment and post-judgment interest, as provided by law; and
Such other equitable relief as the Court may deem just and proper.

5

7

Attorneys’ fees and costs of suit, including expert fees pursuant to Cal.

DEMAND FOR JURY TRIAL
26.

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs,

individually and on behalf of all others similarly situated, demands a trial by jury.

9

27.69.

10

Dated: July 20, 2012

11

NICHOLS KASTER, LLP
By:
Robert L. SchugMatthew C. Helland

12
13

Attorneys for Plaintiff and those similarly situated

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-14FIRST AMENDED COLLECTIVE ACTION COMPLAINT