Damitio v. Sushi Zanmai Incorporated et al

Filing 31

ORDER granting 27 Motion for Hoffman-La Roche Notice by Judge John L. Kane on 07/17/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane

Civil Action No. 12-cv-2603-JLK
JENNIFER DAMITIO, on behalf of herself and all similarly situated persons,
Plaintiff,
v.
SUSHI ZANMAI INCORPORATED, a Colorado corporation, NAOTA KANDA and
MASAO MAKI,
Defendants.
ORDER GRANTING MOTION FOR HOFFMAN-LA ROCHE NOTICE
Kane, J.

This Fair Labor Standards Act (“FLSA”) action is before me on Plaintiff’s Motion
for Approval of Hoffman-La Roche Notice, Doc. 27. A Hoffman-La Roche notice allows
a named FLSA plaintiff to discover the identity of all “similarly situated” individuals
with potential claims and informs such individuals of the lawsuit and their right to opt-in.
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). The standard for a
Hoffman-La Roche notice is lenient; provided a plaintiff submits “substantial allegations
that the putative class members were together the victims of a single decision, policy, or
plan,” a motion for Hoffman-La Roche notice is typically granted. Thiessen v. Gen. Elec.
Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). See also Brown v. Money Tree
Mortgage, Inc., 222 F.R.D. 676, 679 (D. Kan. 2004) (“The standard for certification at
this notice stage, then, is a lenient one that typically results in class certification.”)

Plaintiff, who complains her tips as a restaurant server were diverted in violation
of the FLSA, argues that this case is an “ideal FLSA collective action” because she is
similarly situated to dozens of other individuals subjected to Sushi Zanmai’s tip policy.
She contends Sushi Zanmai’s discovery responses make clear that it maintains a standard
tip policy. Accordingly, each of Sushi Zanmai’s servers is “similarly situated” for
purposes of FLSA “notice stage” certification.
Defendants do not dispute the substantive merits of Plaintiff’s motion, but rather
argue that it is time-barred because the Scheduling Order’s deadline for joinder of parties
had passed before Plaintiff filed the instant motion.1 Because the Scheduling Order also
expressly states that Plaintiff anticipates filing a Hoffman-La Roche motion within a
certain amount of time, however, Plaintiff argues the parties did not intend the joinder
deadline to apply to the joinder of opt-in plaintiffs who might be recipients of a HoffmanLa Roche notice. Instead, Plaintiff argues that the specified time period listed within the
provision concerning anticipated motions controls with respect to the “deadline” for a
Hoffman-La Roche motion and the attendant joinder such a notice could engender.
Specifically, the Scheduling Order states that “Plaintiff anticipates filing a Motion for
Hoffman-LaRoche Notice under the FLSA within thirty days after receiving [Sushi
Zanmai’s] written discovery responses.” Stipulated Scheduling and Discovery Order at
¶8(b), Doc. 25 (attached). As Defendants responded to discovery on April 15, 2013 and
Plaintiff filed the instant motion on June 9, 2013, Plaintiff’s conduct is consistent with

1

The Scheduling Order lists May 13, 2013 as the joinder deadline. The instant motion was filed on June
9, 2013. Defendants responded to discovery on April 15, 2013.

that set forth as anticipated in the Scheduling Order. Moreover, Plaintiff argues it would
have been impractical approaching impossible for her to have joined opt-in parties before
the joinder deadline, because Sushi Zanmai did not respond to discovery until April 15,
2013, giving the parties shy of one month to brief a Hoffman-La Roche motion, receive a
ruling, and conduct the notice process, should you apply the joinder deadline.
Under Hoffman–La Roche, I have “a managerial responsibility to oversee the
joinder of additional parties” to assure that a FLSA collective action is run “in an
efficient and proper way.” Hoffman–La Roche, Inc., 493 U.S. at 171. I agree with
Plaintiff that it would be most inefficient to disallow notice and thereby invite future
FLSA claims against Sushi Zanmai by others similarly situated who were unaware of the
instant lawsuit. “Court authorization of notice serves the legitimate goal of avoiding a
multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the
action.” Hoffman–La Roche, Inc., 493 U.S. at 169-72, 173. To avoid duplicative
lawsuits against Sushi Zanmai, I GRANT Plaintiff’s motion.

DATED:

July 17, 2013

BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge