Fenn v. Hewlett-Packard Company

Filing 32

MEMORANDUM DECISION AND ORDER denying 23 Motion to Open Discovery and for Leave to Take Depositions of Plaintiff and Declarants. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KAREN FENN, on behalf of herself and
those similarly situated,
Plaintiff,

Case No. 1:11-CV-00244-BLW
MEMORANDUM DECISION AND
ORDER

v.
HEWLETT-PACKARD COMPANY,
Defendant.

INTRODUCTION
The Court has before it Defendant’s Motion to Open Discovery and for Leave to
Take Depositions of Plaintiff and Declarants (Dkt. 23). Hewlett-Packard Company
(“HP”) asks the Court to grant it leave to take brief, expedited depositions of Fenn and
four other individuals who filed declarations in support of Fenn’s Motion for Conditional
Certification. By stipulation, HP’s response to the Motion for Conditional Certification is
due September 9, 2011.
ANALYSIS
The FLSA provides a cause of action for an employee against an employer who
fails to pay overtime wages. 29 U.S.C. § 207(a), (o). An employee may sue “for and in
behalf of himself . . . and other employees similarly situated.” Id. § 216(b). This is known

MEMORANDUM DECISION AND ORDER - 1

as a collective action, and proceeds on an opt-in basis. Id.; see Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989). “To facilitate this process, a district court may
authorize the named plaintiffs in an FLSA collective action to send notice to all potential
plaintiffs.” Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th
Cir. 2000). “It is within the discretion of the district court to determine whether a
certification of a § 216(b) collective action is appropriate.” Edwards v. City of Long
Beach, 467 F. Supp. 2d 986, 989 (C.D. Cal. 2006).
Although the Ninth Circuit has not articulated a single standard to guide this
Court’s “similarly situated” analysis, a majority of courts adopt a two tiered approach.
See, e.g., Khadera v. ABM Indus. Inc., No. C08-0417 RSM (W.D. Wash. Feb. 19, 2010);
Colson v. Avnet, Inc., No. 09-603-PHX-MHM (D. Ariz. Jan. 27, 2010); Davis v. Westgate
Planet Hollywood Las Vegas, LLC, No. 2:08-cv-00722-RCJ-PAL (D. Nev. Jan. 12,
2009); Goudie v. Cable Commc’ns, Inc., No. 08-CV-507-AC (D. Or. Oct. 14, 2008);
Hoffman v. Securitas Sec. Servs., No. CV07-502-S-EJL (D. Idaho Aug. 27, 2008);
Edwards, 467 F. Supp. 2d at 990.
Under the two-step approach, “the first step is for the court to decide, based
primarily on the pleadings and any affidavits submitted by the parties, whether the
potential class should be given notice of the action.” Edwards, 467 F. Supp. 2d at 990
(internal quotation marks omitted). Given the lack of discovery and limited evidence
available to the court at this early stage in the proceedings, “this determination is usually
made under a fairly lenient standard and typically results in conditional class
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certification.” Id. (internal quotation marks omitted). Indeed, plaintiff need not show that
his position is or was identical to the putative class members’ positions; a class may be
certified under the FLSA if the named plaintiff can show that his position was or is
similar to those of the absent class members. However, unsupported assertions of
widespread violations are not sufficient to meet Plaintiff’s burden. Id. (quoting Freeman
v. Wal-Mart Stores, Inc., 256 F. Supp. 2d 941, 945 (W.D. Ark. 2003)). All the plaintiff
needs to show, “is that some identifiable factual or legal nexus binds together the various
claims of the class members in a way that hearing the claims together promotes judicial
efficiency and comports with the broad remedial policies underlying the FLSA.”
Wertheim v. Arizona, 1993 WL 603552, at *1 (D. Ariz. Sept. 30, 1993). The second phase
of the two-step approach occurs once discovery is complete and the case is ready for trial.
At that time, the party opposing § 216(b) collective action treatment may move to
decertify the class. Id. at 990 n.1.
The Court may authorize discovery before a Rule 26(f) conference. F.R.C.P.
26(d). HP points out that this Court granted such authorization in Cannell v. Shopko,
1:05-CV-00496-BLW, which, like this case, was a collective action. However, early
discovery in that case was limited to a single deposition of the plaintiff, where the
plaintiff had made some conclusory remarks about other employees. Here, HP wants to
take depositions of the plaintiff and four other individuals over the next two weeks. It is
not clear whether those individuals are represented by plaintiff’s counsel, or whether they
would need time to retain separate counsel. Either way, it would be a significant burden
MEMORANDUM DECISION AND ORDER - 3

to prepare for those depositions at this point, and it would likely delay resolution of the
Motion for Conditional Certification. The statute anticipates the lack of discovery and
limited evidence available to a court at the early stage of a collective action proceeding,
which is why the determination made at the first stage is “usually made under a fairly
lenient standard . . . .” Edwards, 467 F. Supp. 2d at 990.
Accordingly, the Court will not grant the motion. It may be that once the Motion
for Conditional Certification is fully briefed, the Court will have a better understanding of
the issues in this case, and the Court may need to allow the depositions before making its
decision. However, the more likely scenario is that the Court will be able to decide the
issue as presented, and HP may move to decertify the class at a later date if the Court
conditionally certifies the action.
ORDER
IT IS ORDERED:
1.

Defendant’s Motion to Open Discovery and for Leave to Take Depositions
of Plaintiff and Declarants (Dkt. 23) is DENIED.

DATED: August 26, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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