Rodriguez v. RCO Reforesting, Inc. et al.

Filing 42

ORDER signed by Senior Judge William B. Shubb on 8/8/2017 GRANTING 33 Motion to Certify Class; ORDERING that expert reports be produced by 1/30/2018; ORDERING that all discovery be completed by 4/2/2018; ORDERING that all motions be filed by 4/16/2 018; CONTINUING the Final Pretrial Conference to 7/16/2018 at 01:30 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb; CONTINUING the Jury Trial to 9/18/2018 at 09:00 AM in Courtroom 5 (WBS) before Senior Judge William B. Shubb. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESUS SILVA RODRIGUEZ and
RIGOBERTO ZEPEDA LOA,

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MEMORANDUM AND ORDER RE:
AMENDED MOTION FOR
CONDITIONAL CERTIFICATION AND
MOTION TO MODIFY THE PRETRIAL
SCHEDULING ORDER

Plaintiffs,

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CIV. NO. 2:16-2523 WBS CMK

v.
RCO REFORESTING, INC. and
ROBERTO OCHOA,
Defendants.

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Plaintiffs Jesus Rodriguez and Rigoberto Loa brought

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this action against defendants RCO Reforesting, Inc. (“RCO”) and

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Roberto Ochoa, asserting various wage and hour and employment law

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claims under federal and California law.

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(“FAC”) (Docket No. 24).)

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amended Motion to conditionally certify this action as an FLSA

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collective action, issue notice to similarly situated individuals

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under 29 U.S.C. § 216(b), and modify the February 17, 2017,

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pretrial scheduling order.

(First Am. Compl.

Before the court is plaintiffs’

(Pls.’ Mot. (Docket No. 33).)
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Defendants employed plaintiffs as temporary forestry

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workers pursuant to the H-2B visa program.

(Docket No. 35

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(“Rodriguez Decl.”) ¶ 2; Docket No. 33-4 (“Loa Decl.”) ¶ 2.)

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Plaintiffs allege that defendants had a policy of not paying

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plaintiffs for overtime work and not reimbursing plaintiffs for

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their travel and visa costs, which reduced their first week pay

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to below minimum wage.

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practices allegedly violate the FLSA.

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court denied plaintiffs’ previous Motion to conditionally certify

(FAC ¶¶ 1, 23-26, 49-52.)

These

(See id. at 10-12.)

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this as a collective action on June 16, 2017.

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Order (Docket No. 31).)

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I.

The

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(See June 16, 2017

Conditional Certification
Employees may bring suits for FLSA violations on behalf

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of “other employees similarly situated.”

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The FLSA does not define “similarly situated,” and neither the

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Supreme Court nor the Ninth Circuit has offered clarification.

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Brown v. Citicorp Credit Servs., Civ. No. 1:12-62 BLW, 2013 WL

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4648546, at *2 (D. Idaho Aug. 29, 2013).

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Court has noted a collective action addresses “claims of multiple

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plaintiffs who share ‘common issues of law and fact arising from

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the same alleged [prohibited] activity.’”

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La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

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29 U.S.C. § 216(b).

However, the Supreme

Id. (quoting Hoffmann–

Under the two-step process for FLSA actions, the court

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first determines whether to conditionally certify the proposed

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class and send notice of the action based on the pleadings and

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affidavits.

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(E.D. Cal. 2010).

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appropriate is within the discretion of the district court.”

Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 471
“Determining whether a collective action is

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Leuthold v. Destination Am., 224 F.R.D. 462, 466 (N.D. Cal. 2004)

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(citation omitted).

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searching review of whether plaintiffs are similarly situated,

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often triggered by a motion to decertify by defendant.

After discovery, the court engages in a more

Id.

Courts apply a lenient standard to the first-step.

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Leuthold, 224 F.R.D. at 467.

This step requires that “plaintiffs

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make substantial allegations that the putative class members were

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subject to a single illegal policy, plan or decision.”

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266 F.R.D. at 471.

Murillo,

However, a plaintiff must supply “some modest

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evidentiary showing,” and the court need not rely on statements

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that indicate a lack of personal knowledge of alleged employer

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practices.

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burden to show that they are similarly situated “to all potential

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class members, not merely some portion of them.”

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Entm’t U.S.A. Inc., 67 F. Supp. 3d 1061, 1066 (D. Ariz. 2014).

Plaintiffs bear the

Kesley v.

Here, plaintiffs seek to conditionally certify an FLSA

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Brown, 2013 WL 4648546, at *1-3.

class defined as:

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All non-exempt workers employed by Defendants
at any time between May 5, 2014 through the
present, as forestry workers either under the
terms of an H-2B job order or who were
engaged in corresponding employment, who
incurred and were not reimbursed for their
travel and visa costs during the first weeks
of employment such that they made less than
minimum wage and/or worked in excess of forty
hours per week and were not compensated for
those hours at the applicable overtime rate.

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(Pls.’ Proposed Order (Docket No. 33-6).)

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Motion, plaintiffs submit affidavits and copies of defendants’ H-

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2B applications for 2013 through 2016.1

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In support of their

(See Docket No. 33-2.)

Defendants requested H-2B visas for 85 workers in 2013,
101 workers in 2014, 80 workers in 2015, and 67 workers in 2016.
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Both plaintiffs attest that they, as H-2B workers, were

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“not paid overtime for the hours [they] worked more than eight

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hours a day” and were “not paid more than 40 hours per week

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regardless of how many hours [they] actually worked.”

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Decl. ¶ 15; see Loa Decl. ¶ 12.)

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reimbursed for their visa or travel costs from Mexico to the

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company office in Yreka, (Rodriguez Decl. ¶¶ 7-8; Loa Decl. ¶¶ 5-

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7), causing them to make below minimum wage their first week,

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(FAC ¶ 52).

(Rodriguez

They also allegedly were not

They were aware that other H-2B workers were subject

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to the same conditions because they witnessed such conduct and

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discussed these issues with other H-2B workers.

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Loa Decl. ¶¶ 5, 7, 12.)

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(Id. ¶¶ 8, 15;

Defendants argue the class is impermissibly vague and

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overbroad because it includes H-2B visa workers and workers

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“engaged in corresponding employment.”

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discretion, narrow the scope of the proposed collective action.

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See, e.g., Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474,

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483-84 (E.D. Cal. 2006) (Coyle, J.) (excluding certain types of

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drivers from conditional certification of an FLSA collective

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action because plaintiffs failed to show these drivers were

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similarly situated); see also Adams v. Inter-Con Sec. Sys., Inc.,

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242 F.R.D. 530, 539 (N.D. Cal. 2007) (narrowing the class of

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individuals who are entitled to receive notice of the action).

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The court agrees that the proposed class is overbroad.

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The court may, in its

First, including those engaged in corresponding

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employment introduces ambiguity in the class.

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F.R.D. at 484 (removing inclusion of individuals engaged in

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“equivalent delivery positions” from conditional certification
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See Romero, 235

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because it “introduces ambiguity in the class”).

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employment is defined by 20 C.F.R. § 655.5 as someone engaged in

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“substantially the same work included in the job order or

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substantially the same work performed by the H-2B workers.”

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However, it is unclear what constitutes “substantially the same

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work,” and thus it is unclear to potential plaintiffs who falls

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within the scope of the class.

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from determining whether plaintiffs and all potential class

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members are similarly situated.

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Corresponding

Ambiguity also prevents the court

Second, and more importantly, plaintiffs’ affidavits

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are devoid of any information or personal knowledge regarding

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workers in corresponding employment.

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allegations that workers in corresponding employment were subject

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to the same alleged FLSA violations as the H-2B workers.

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Adams, 242 F.R.D. at 536 (finding conditional certification

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proper where “the putative class members were subject to a single

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illegal policy, plan or decision”).

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Rodriguez’s declarations discuss their knowledge of FLSA

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violations incurred by other H-2B visa workers, but make no

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mention of those in corresponding employment.

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Rodriguez Decl. ¶ 15 (“I know other H-2B workers were not paid

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for all of the hours they worked because we would discuss our pay

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and compare our paychecks.”) (emphasis added).)

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Amended Complaint also contains no allegations regarding workers

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in corresponding employment.

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that they have any personal knowledge regarding non-H-2B visa

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workers, plaintiffs fail to show that those in corresponding

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employment were subject to the same “single illegal policy, plan

There is no evidence or

See

Plaintiffs Loa’s and

(See, e.g.,

The First

Because plaintiffs fail to indicate

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or decision” as H-2B workers.

See Murillo, 266 F.R.D. at 471.

Because including workers in corresponding employment

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introduces ambiguity and there is no evidence that workers in

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corresponding employment suffered FLSA violations, plaintiffs

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have not shown that they are similarly situated “to all potential

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class members.”

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will exercise its discretion to narrow the scope of the proposed

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collective action and exclude those in corresponding employment.

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The court will conditionally certify a class of:

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The court

All non-exempt workers employed by Defendants
at any time between May 5, 2014 through the
present, as forestry workers under the terms
of an H-2B job order who (1) incurred and
were not reimbursed for their travel and visa
costs during the first weeks of employment
such that they made less than minimum wage
and/or (2) worked in excess of forty hours
per week and were not compensated for those
hours at the applicable overtime rate.

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See Kesley, 67 F. Supp. 3d at 1066.

II.

Notice
Where “the court finds initial certification

appropriate, it may order notice to be delivered to potential
plaintiffs.”

Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D.

623, 628 (E.D. Cal. 2009) (Karlton, J.) (citing Hoffmann-La
Roche, 493 U.S. at 172).

Having found that conditional

certification is proper, the court finds that issuance of notice
to the certified class is proper.

The court will address

plaintiffs’ proposed notice plan and proposed notice.
Plaintiffs seek authorization of a notice plan whereby
defendants provide plaintiffs with the contact information of all
potential class members, plaintiffs send notice of this action to
the potential members, defendants post a copy of the notice in

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English and Spanish in their office and employer-provided

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housing, and defendants provide a copy of the notice with the

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paychecks of each H-2B worker for the entire opt-in period.

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Plaintiffs request a six-month opt-in period from the date

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defendants provide the information of potential plaintiffs.

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Defendants object to several aspects of this notice plan.

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Defendants first object to the notice plan because

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plaintiffs’ opt-in period begins after production of all

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potential plaintiffs’ information, suggesting that failure by

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defendants to produce the name, phone number, and address of one

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potential member would delay commencement of the opt-in period

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indefinitely.

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requiring defendants to provide the information of all potential

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class members for which they have contact information and (2)

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commencing the opt-in period from the date this Order is signed.

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The court shall remedy this objection by (1)

Defendants next object to the requirement that

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defendants post notice of this action in all employer-provided

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housing and provide a copy of the notice with the paycheck of

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each H-2B worker for the six month opt-in period.

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agrees with both objections.

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notice of the action with each H-2B worker’s paycheck for six

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months is overly burdensome.

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notice with an H-2B worker’s paycheck will help facilitate notice

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to the potential class members.

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copy of the notice in each H-2B worker’s paycheck for the

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September 1, 2017, and October 1, 2017, pay periods.

The court

Requiring defendants to provide

However, providing a copy of the

Thus, defendants shall provide a

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Defense counsel argues that defendants do not own any

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of the employer-provided housing, and thus defendants would not
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be permitted to post the notices in employer-provided housing.

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At oral argument, defense counsel confirmed that defendants own

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no employer-provided housing.

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parties to this case--the owners of the employer-provided

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housing--to permit defendants to place a copy of the notice of

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this action in their facilities.

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require defendants to post notice of this action in employer-

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provided housing.

The court will not compel non-

Thus, the court will not

As for the content of the notice, it must “provide

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potential class members ‘accurate . . . notice concerning the

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pendency of the collective action, so that they can make informed

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decisions about whether to participate.’”

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492 (quoting Hoffmann-La Roche, 493 U.S. at 170)).

Romero, 235 F.R.D. at

Defendants first object to the portion of the “Your

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Rights to Join This Lawsuit” section that states those who

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believe they “were not reimbursed for your transportation and

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other expenses during the first weeks of work” may seek to join

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this action.

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Defendants argue that the reference to “other expenses”

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inaccurately suggests to potential plaintiffs that they may have

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broad entitlement for reimbursement of expenses beyond the

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requirements of the FLSA.

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potential class members with accurate information, Romero, 235

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F.R.D. at 492, the court finds that the expenses in this section

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should reflect the expenses listed in the conditionally certified

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class.

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“transportation and other expenses” with “travel and visa costs.”

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In light of the narrowed class, the court will also require

(See Proposed Notice at 3 (emphasis added).)

Because the notice should provide

The court thus will require plaintiffs to substitute

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plaintiffs to clarify that only individuals employed under the

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terms of an H-2B job order may join this action.

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Defendants also object to the portion of the “Your

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Legal Representation” section that states “However, CRLA and CDM

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will seek an award of costs and attorneys’ fees from the Court

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pursuant to an agreement with the Defendants.”

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Notice at 4.)

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it suggests the parties will reach an agreement regarding the

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attorneys’ fees award.

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(See Proposed

Defendants argue this sentence is improper because

The court agrees and plaintiffs shall

remove the phrase “pursuant to an agreement with the Defendants.”

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Defendants next object to the notice because it does

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not provide defense counsel’s contact information and does not

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inform potential plaintiffs that they have a right to select

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their own counsel.

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explicitly rejected these additions because they would “lead to

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confusion, inefficiency and cumbersome proceedings.”

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Adams, 242 F.R.D. at 541.

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objection.

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Other courts in the Ninth Circuit have

See, e.g.,

The court will overrule this

In all other regards, the court will approve

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plaintiffs’ notice plan and proposed notice.

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III. Amend Pretrial Scheduling Order

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Plaintiffs also move to modify the court’s February 17,

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2017, pretrial scheduling order (Docket No. 7) to extend

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discovery and other dates by six months in order to permit

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potential plaintiffs with time to opt-in.

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to close on August 31, 2017, and all motions must be filed by

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September 15, 2017, which will prevent potential plaintiffs from

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opting-in to this action and prevent the parties from
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All discovery is set

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incorporating the opt-in plaintiffs into their dispositive

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motions.

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modification because they first moved to modify the Scheduling

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Order less than three months after the court issued its

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Scheduling Order.

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modify the Scheduling Order, and the court will grant plaintiffs’

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Motion.

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Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992).

Plaintiffs did not delay in moving for this

The court finds that there is good cause to

See Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth

IT IS THEREFORE ORDERED that plaintiffs’ Motion for

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conditional certification of this action as an FLSA collective

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action and issuance of notice to class members (Docket No. 33)

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be, and the same hereby is, GRANTED:

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(1)

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collective action for:

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All non-exempt workers employed by Defendants
at any time between May 5, 2014 through the
present, as forestry workers under the terms
of an H-2B job order who (1) incurred and
were not reimbursed for their travel and visa
costs during the first weeks of employment
such that they made less than minimum wage
and/or (2) worked in excess of forty hours
per week and were not compensated for those
hours at the applicable overtime rate.

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The court conditionally certifies a FLSA

(2)

The court directs defendants to produce to

plaintiffs the names, addresses, and telephone numbers of all
potential class members for which they currently possess
information within fourteen days from the date this Order is
signed.
(3)

The court approves an opt-in period of six months,

commencing from the date this Order is signed.
(4)

The court approves the mailing of the Proposed

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Notice (Docket No. 33-1), as amended below, for distribution to

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potential class members, which shall include notice of the opt-in

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period as established in this Order.

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amended notice to the court and defendants within seven days from

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the date this Order is signed and prior to distribution to any

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potential class members.

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Notice as follows:

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(i)

Plaintiffs shall submit the

Plaintiffs shall amend the Proposed

In the section of the Proposed Notice titled

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“Your Rights to Join This Lawsuit,” plaintiffs shall substitute

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the clause “If you worked for Defendants at any time from May 5,

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2014 through the present (and even if you are not currently

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employed by Defendants), and believe you were not reimbursed for

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your transportation and other expenses during the first weeks of

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work” for “If you worked for Defendants at any time from May 5,

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2014 through the present (and even if you are not currently

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employed by Defendants) under the terms of an H-2B job order, and

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believe you were not reimbursed for your travel and visa costs

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during the first weeks of work.”
(ii) In the section of the Proposed Notice titled

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“Your Legal Representation,” plaintiffs shall delete the phrase

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“pursuant to an agreement with the Defendants.”
(5)

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The court directs that, for the six month opt-in

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period, defendants shall post a copy of the notice, in Spanish

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and English, in defendants’ offices.
(6)

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The court directs defendants to enclose a copy of

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the notice with the paycheck of each H-2B worker employed by

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defendants for the September 1, 2017, and October 1, 2017, pay

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periods.
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IT IS FURTHER ORDERED that plaintiffs’ Motion for to

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modify the court’s February 17, 2017 Scheduling Order (Docket No.

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33) be, and the same hereby is, GRANTED.

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17, 2017 Scheduling Order is modified as follows:

The court’s February

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(1)

Expert Reports are due January 30, 2018;

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(2)

All discovery closes April 2, 2018;

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(3)

All motions shall be filed by April 16, 2018;

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(4)

The Final Pretrial Conference is set for July 16,
2018, at 1:30 p.m. in Courtroom No. 5;

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(5)

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9:00 a.m.

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The jury trial is set for September 18, 2018, at

Dated:

August 8, 2017

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