Pataky et al v. The Brigantine, Inc.

Filing 70

ORDER Granting 65 Plaintiffs' Ex Parte Motion for Approval of: (1) Filing of Certain FLSA Joinder Notices; (2) Mailing of FLSA Joinder Notices to Newly Discovered Potential Class Members. Signed by Judge Gonzalo P. Curiel on 10/03/2017. (ajs)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

NEAL PATAKY, JESSICA CLEEK, and
LAUREN MICHELSON, individually,
and on behalf of others similarly situated,

13
14
15
16
17

Case No.: 3:17-cv-00352-GPC-AGS
ORDER GRANTING PLAINTIFFS’
EX PARTE MOTION FOR
APPROVAL OF:

Plaintiffs,
v.

(1) FILING OF CERTAIN FLSA
JOINDER NOTICES

THE BRIGANTINE, INC., a California
corporation,
Defendant.

(2) MAILING OF FLSA JOINDER
NOTICES TO NEWLY
DISCOVERED POTENTIAL CLASS
MEMBERS

18
19
20

[ECF No. 65.]

21
22

On May 16, 2017, this Court entered an order regarding notice to FLSA class

23

members requiring that Plaintiff’s counsel file all Consent to Join forms received

24

containing a postmark that is no later than sixty days from the initial mailing date. (Dkt

25

No. 27.) Under the Court’s order all consent to join forms should have been filed by July

26

31, 2017. Plaintiffs’ counsel subsequently received four additional consent forms with

27

postmarks between August 1-August 3, 2017 from potential plaintiffs Israel Dominguez,

28

Crystal Hogan, John Manley, and Misty Perkins (“Additional Plaintiffs”).
1
3:17-cv-00352-GPC-AGS

1

On September 26, 2017, Plaintiffs filed an ex parte motion to approve the filing of

2

the four August forms. (Dkt No. 65.) Defendants filed a notice of opposition to the Ex

3

Parte Motion on September 26, 2017, and filed a response on September 29, 2017. (Dkt

4

No. 66-67.) On September 29, 2017, the Court ordered directed plaintiffs to file a

5

supplemental brief addressing the Helton factors. (Dkt No. 68). Plaintiffs filed this brief

6

on October 3, 2017. (Dkt No. 69.)

7

I.

Late Consent to Join Forms

8

In determining whether a late opt-in consent to join form should be deemed timely

9

in an FLSA action, courts consider: (1) whether “good cause” exists for untimeliness; (2)

10

prejudice to the defendant; (3) how late the consent forms were filed; (4) judicial

11

economy; and (5) the remedial purposes of the FLSA. Helton v. Factor 5, Inc., No. C 10-

12

04927 SBA, 2014 WL 1725734, at *3 (N.D. Cal. Apr. 29, 2014).

13

The Court will excuse the untimeliness of the four additional plaintiffs who sent

14

consent to join forms postmarked after the July 31, 2017 deadline. Good cause exists to

15

excuse the untimeliness as the delay at issue here was not due to any fault of counsel.1

16

Moreover, Defendants are not seriously prejudiced by the addition of only four plaintiffs

17

to an existing class of 118 individuals and allowing the additional plaintiffs to join is

18

consistent with a broad reading of the FLSA in favor of coverage. Kelley v. Alamo, 964

19

F.2d 747, 749–750 (8th Cir. 1992) (“The FLSA ... is a remedial statute that has been

20

construed liberally to apply to the furthest reaches consistent with congressional

21

direction. A generous reading, in favor of those whom congress intended to benefit from

22

the law, is also appropriate when considering issues of time limits and deadlines.”)

23

Most importantly, the Court will excuse the minor untimeliness because the

24

postmarks of the late forms are dated August 1, 2, and 3, 2017, merely a few days after

25
26
27
1

28

Counsel appears to have engaged in a good faith attempt to meet and confer with opposing counsel to
submit this request as a joint motion prior to filing this ex parte motion. (Dkt. No. 65, Exs. 2-4.)
2
3:17-cv-00352-GPC-AGS

1

the July 31, 2017 deadline.2 (Supp. Br. at 2.) Moreover, each additional plaintiff appears

2

to have signed their consent to join form on or prior to the deadline. See (Dkt No. 65-1)

3

(listing 6/10/2017, 7/27/2017, 7/31/2017, 7/31/2017 as the dates the consent to join forms

4

were signed). Finally, judicial economy warrants inclusion of the additional plaintiffs in

5

the current class of 118 individuals in this case. Four additional separately filed but

6

substantively similar actions would not be in the interest of judicial economy. See (Supp.

7

Br. at 3.)

8
9

Accordingly, the Court will excuse the minor tardiness of the additional plaintiffs.
See In Re Wells Fargo Home Mortgage Overtime Pay Litigation, 2008 WL 4712769 at

10

*2 (N.D. Cal. 2008) (rejecting a “rigid application of a ‘good cause’ standard” because it

11

“does not fully respond to the various factors with which the court must concern itself”

12

such as prejudice to the defendant); Helton, 2014 WL 1725734, at *4 (allowing ten tardy

13

opt-in plaintiffs to join FLSA).
The Court Orders Plaintiffs’ counsel to immediately file the four additional

14
15

Consent to Join forms from FLSA class members: (1) Israel Dominguez; (2) Crystal

16

Hogan; (3) John Manley; and (4) Misty Perkins.

17

II.

18

Notice to Newly Discovered Class Members
Plaintiff also requests to send notice to newly discovered class members.

19

Defendant does not oppose this motion. (Dkt No. 65 at 3.) For the reasons stated in the

20

motion and based on the supporting documents, and there being no opposition by

21

Defendant, THE BRIGANTINE, INC., the Court also Orders Plaintiffs’ counsel to

22

commence a notice mailing within ten days, consistent with this Court’s May 16, 2017

23

Order, to: (1) Gustavo Sanchez; (2) Jeffrey Yellen; (3) Fausto Rodriguez; (4) Forrest

24

Gittins; and (5) Kyle Herring. Plaintiffs’ counsel shall notify Defendant’s counsel of the

25
26

The Court recognizes that the exact phrasing in Helton is “how late the consent forms were filed.”
Helton, 2014 WL 1725734. Since plaintiffs are requesting permission to file and have not yet filed these
forms, the Court will consider the extent of the additional plaintiffs’ tardiness as the critical inquiry for
this factor.
2

27
28

3
3:17-cv-00352-GPC-AGS

1

date this mailing begins. Plaintiffs’ counsel shall file all Consent to Join forms it receives

2

containing a postmark that is no later than sixty days from the initial mailing date to these

3

five individuals.

4
5

IT IS SO ORDERED.

6
7

Dated: October 3, 2017

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
3:17-cv-00352-GPC-AGS