Young v. Dollar Tree Stores, Inc.

Filing 284

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DECLARATIONS in Support of Plaintiff's Motions for Certification 121 . By Judge Robert E. Blackburn on 9/27/12.(kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-1840-REB-MJW
TAYNA YOUNG, on her own behalf and on behalf of others similarly situated,
Plaintiffs,
v.
DOLLAR TREE STORES, INC.,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DECLARATIONS
Blackburn, J.

This matter is before me on the Defendant Dollar Tree Stores, Inc.’s Motion
To Strike Declarations in Support of Plaintiff’s Motions for Certification [#121]1
filed February 6, 2012. The plaintiff filed a response [#147] and the defendant filed a
reply [#165]. I deny the motion.
The declarations at issue were submitted by the plaintiff in support of her motion
for conditional certification of a collective action under the Fair Labor Standards Act
(FLSA) and in support of her motion for certification of a plaintiff class under FED. R. CIV.
P. 23. The Rule 23 motion for class certification has been denied.
The defendant asserts three reasons to strike the declarations. First, the
defendant asserts that the declarations are boilerplate, and all of the declarants who
were deposed said that parts of the declarations are false, or they do not have personal

1

“[#121]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

knowledge of certain facts stated in their declaration. Second, the defendant argues
that the declaration of Debra Kelly should be stricken because the plaintiff failed to
produce Debra Kelly for her properly noticed deposition. Third, the defendant notes
that, except for the plaintiff’s declaration, all of the declarations are from employees or
former employees of the defendant who worked for the defendant in states other than
Colorado.
First, the fact that the declarations are boilerplate, without more, does not
demonstrate that the declarations are inherently false or are a sham. However, the
defendant contends also that all of the declarants who were deposed said that parts of
their declarations are false, or they do not have personal knowledge of certain facts
stated in their declaration. Many of the conflicts described in the defendant’s motion are
significant. However, I conclude that the conflicts cited by the defendant to not
demonstrate that the declarations are, in toto, false or are a sham. Rather, they indicate
that certain points in certain declarations should carry little if any weight in resolving
collective certification issues, particularly when more thorough and conflicting deposition
testimony is in the record. Except for the plaintiff’s declaration, I did not rely on the
declarations in resolving the motion for conditional certification of a FLSA collective
action. However, I will consider carefully contrasts and conflicts between a declaration
and the deposition testimony of the same witness when resolving the anticipated motion
to decertify the FLSA collection action.
Second, the Debra Kelly’s failure to appear for her deposition does not, on the
current record, provide a foundation to strike her declaration. It is undisputed that the
defendant was notified one day before Ms. Kelly’s deposition that a medical issue would
prevent Ms. Kelly from attending her deposition. The defendant says the plaintiff has
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not provided an alternate date for Ms. Kelly’s deposition. However, the current record
does not show that the plaintiff and Ms. Kelly refuse to produce Ms. Kelly for a
deposition.
Third, the defendant contends the declarations from people who worked for the
defendant in states other than Colorado are not relevant to a determination of whether
or not a class of defendant’s Colorado employees and former employees should be
certified under FED. R. CIV. P. 23. Therefore, the defendant asserts, the declarations of
the non-Colorado employees should be stricken. I did not consider the non-Colorado
declarations in considering, and denying, the plaintiff’s motion for certification of a class
of Colorado plaintiffs under Rule 23. The defendant’s argument that the non-Colorado
declarations are not relevant to a particular motion does not justify striking those
declarations from the record, particularly when the declarations potentially are relevant
to other motions and issues in this case.
THEREFORE, IT IS ORDERED that the Defendant Dollar Tree Stores, Inc.’s
Motion To Strike Declarations in Support of Plaintiff’s Motions for Certification
[#121] filed February 6, 2012, is DENIED.
Dated September 27, 2012, at Denver, Colorado.
BY THE COURT:

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