Casarotto v. Exploration Drilling , Inc.
OPINION AND ORDER ADOPTING IN FULL 33 Findings and Recommendations. Casarotto's Motion for Conditional Certification and Notice 27 is GRANTED IN PART as follows. SEE ORDER FOR DETAILS. Signed by Judge Susan P. Watters on 12/15/2015. (EMH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
Cierk, U.S. District Court
U1stnct Of Montana
PAUL CASAROTTO, on behalf of
himself and all others similarly
OPINION and ORDER
EXPLORATION DRILLING, INC.,
Plaintiff Paul Casarotto moves the Court to conditionally certify a collective
action and authorize the issuance of a notice to the putative class members
pursuant to the Fair Labor Standards Act ("FLSA"). Defendant Exploration
Drilling, Inc. ("Exploration") opposes the motion. On October 15, 2015, United
States Magistrate Judge Carolyn Ostby issued Findings and Recommendations on
the motion. In the Findings and Recommendations, Judge Ostby recommends that
this Court grant in part Casarotto's motion and conditionally certify the class.
Judge Ostby also recommends that this Court approve the Initial Notice and the
Reminder Notice (collectively "Notices") attached to the Findings and
Recommendations. Judge Ostby's recommended Notices are modified versions of
Casarotto's proposed notices.
Exploration timely objected and is therefore entitled to de novo review of
the specified findings or recommendations to which it objects. 28 U.S.C. §
636(b)(l). However, Exploration does not entirely comply with the Local Rule
regarding objections. L.R. 72.3(b) requires the objecting party to itemize each
recommendation to which an objection is made and set forth the authority relied
upon to contradict that recommendation. At times, Exploration does not itemize
Judge Ostby's conclusion to which it objects and provide contradicting authority,
but rather makes conclusory statements and refers the Court back to its brief
opposing the motion. For example, under a subheading entitled "Plaintiff was
Dissimilar," objection number 5 states, in its entirety, "Plaintiff was a dissimilar
employee. See Opposition, p. 12. The Magistrate incorrectly found the contrary
(Findings, p. 11)." (Doc. 34 at 3). This Court will not consider such conclusory
and unsupported objections.
Some of Exploration's objections are correctly stated and generally present
the following arguments: (1) Judge Ostby erred by considering the declarations
Casarotto attached to his opening brief; (2) Judge Ostby erred by applying the twostep approach; (3) Judge Ostby incorrectly recommends that this Court should
equitably toll the statute of limitations; (4) Judge Ostby's proposed Notices are
improper; and (5) Judge Ostby should have allowed preliminary discovery. For the
following reasons, this Court adopts the Findings and Recommendations in full.
Because the parties are familiar with the procedural and factual background of this
case, it will not be restated here.
I. The Declarations
Exploration argues that the declarations of the other flowback operators
attached to Casarotto's opening brief were incompetent and Judge Ostby erred by
considering them. Exploration continues that the declarations do not meet the
"exacting standards" of29 U.S.C. § 216(b). The Court disagrees.
The Court initially notes the declarations were mostly based on personal
knowledge. For example, Derek Faith declared that he frequently worked in
excess of 84 hours per week and was paid a day rate regardless of the number of
hours that he worked. (Doc. 28-5 at 3). Mr. Faith also described his duties as a
flowback operator. (Id. at 3-4). Mr. Faith may have included some hearsay in his
Declaration when he relayed information he learned from speaking with other
flowback operators. (Id. at 3). But on the whole, Mr. Faith's Declaration (and the
other five declarations) can hardly be described as "incompetent."
In any event, "evidence submitted in support of a motion for conditional
certification does not have to meet the admissibility standard applicable to
summary judgment motions." Guy v. Casal Inst. of Nevada, LLC, 2014 WL
1899006, at *4 (D. Nev. May 12, 2014). At the first step of class certification, the
evidentiary rules are relaxed and hearsay may be considered. Syed v. M-I, L.L. C.,
2014 WL 6685966, at *6-7 (E.D. Cal. Nov. 26, 2014). Accordingly, Judge Ostby
correctly considered the declarations supplied by Casarotto.
II. The Two-Step Approach
Exploration objects to the two-step test used by Judge Ostby. Exploration
argues that this Court should apply the test set forth in Shushan v. Univ. of
Colorado at Boulder, 132 F.R.D. 263 (D. Colo. 1990). However, as far as this
Court can tell, no district court in the Ninth Circuit has favorably cited Shushan's
method for certifying collective actions brought under the FLSA. District courts in
the Ninth Circuit have instead followed the majority approach and proceeded under
the two-step test. See Leuthold v. Destination Am., Inc., 224 F.RD. 462, 466-67
(N.D. Cal. 2004). This Court agrees with this approach. If Congress intended to
tie the requirements offed. R. Civ. P. 23 into 29 U.S.C. § 216(b), which is what
the Shushan Court did, Congress could have explicitly done so. Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). By using the term
"similarly situated," Congress intended to have a different standard applied to
collective actions brought under § 2 l 6(b ). Id. This Court is not persuaded that it
should break from the overwhelming majority of district courts and apply the test
enunciated in Shushan.
Judge Ostby also correctly applied the two-step approach. At the first step,
the Court determines whether the putative class members are similarly situated.
Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124, 1127 (N.D. Cal. 2009). The
movant only needs to present substantial allegations that the putative class
members "were together the victims of a single decision, policy, or plan." Bower
v. Cycle Gear, Inc, 2015 WL 2198461, at* 1 (N.D. Cal. May 11, 2015). This is a
lenient standard, and the "usual result is conditional class certification." Adams v.
Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007). Once the Court
finds that the putative class members are similarly situated, the plaintiff can send
notices of the collective action to potential class members. Id. at 539. The second
step occurs at the close of discovery, when the defendant can move for
"decertification." Lewis, 669 F. Supp. 2d at 1127.
Here, Casarotto has provided substantial allegations that he and other
flowback operators were subjected to a policy that violated the FLSA. Casarotto
alleges that he routinely was required to work over 40 hours per week without
receiving any overtime pay. Casarotto also makes sufficient factual allegations to
show that he was not exempt from the FLSA's overtime requirements. Casarotto's
fellow flowback operators make substantially similar allegations in their
declarations. The declarations' "cookie cutter" nature does not undermine the
allegations contained within them. Bollinger v. Residential Capital, LLC, 761 F.
Supp. 2d 1114, 1120 (W.D. Wash. 2011). Given the lenient standard at the first
step, Casarotto met his burden of showing that he and the putative class members
are similarly situated for purposes of§ 216(b).
III. Equitable Tolling
Exploration objects to Judge Ostby's recommendation to equitably toll the
statute of limitations until the date that Exploration supplies the contact
information on putative class members to Casarotto. This Court agrees with Judge
While equitable tolling is to be applied sparingly, district courts sometimes
equitably toll the statute of limitations in FLSA collective actions. Guy, 2014 WL
1899006 at *9. A court's delay in deciding a motion for conditional certification
"may justify some tolling of the statute of limitations." Id. This is especially true
when either the defendant causes the delay in conditional certification or when
faultless plaintiffs diligently pursue their legal rights. Adams, 242 F.R.D. at 543.
Like Adams, this Court finds that the "presence of both here makes equitable
tolling appropriate." Id.
While not frivolous, Exploration's opposition to Casarotto's motion was
unlikely to succeed. Given the lenient standard at the first step of conditional
certification and the substantial allegations made by Casarotto, the Court finds that
granting the Motion for Conditional Certification was a relatively easy decision.
By opposing the motion and relying on the often-rejected approach used in
Shushan in its objections to the Findings and Recommendations, Exploration
delayed the conditional certification as long as it could. Equitable tolling counters
the advantage that Exploration gained "by withholding potential plaintiffs' contact
information until the last possible moment." Adams, 242 F.R.D. at 543. Casarotto
and the putative class members are faultless in this delay and should not be
punished by the potential loss of claims caused by the lag in granting conditional
certification. In addition, the Court finds that Exploration is not prejudiced by
tolling the statute of limitations. Exploration was on notice of the potential claims
when Casarotto filed this action.
Exploration objects to several aspects of the Notices proposed by Judge
Ostby. This Court finds the objections to be meritless and adopts Judge Ostby's
First, Exploration generally asserts that the Notices lack neutrality. This
Court disagrees and finds that the Notices are sufficiently neutral. In the
introduction, the Initial Notice contains the statement that, "The Court has not yet
ruled on the merits of claims or defenses asserted by any party to the case."
(Doc. 33 at 23) (Bold in original). Judge Ostby added that language to Casarotto's
proposed initial notice. Compare Doc. 28-2 at I with Doc. 33 at 1. There is no
indication of judicial endorsement of the action's merits.
Second, Exploration argues that the time period for the notices should be
two years instead of three years. The general statute of limitations under the FLSA
is two years, but if the violations are "willful" the statute of limitations is three
years. 29 U.S.C. § 255(a). Given the limited information available at this early
stage, most courts decline to make a determination of willfulness when granting
conditional certification. Lee v. Metrocare Servs., 980 F. Supp. 2d 754, 768-69
(N.D. Tex. 2013); see also Romero v. Producers Dairy Foods, Inc., 235 F.R.D.
474, 484 (E.D. Cal. 2006). Courts "often conditionally certify the three-year
period upon a preliminary showing, and reserve final ruling on the issue until later
in the litigation." Ramirez v. Ghilotti Bros. Inc., 941 F. Supp. 2d 1197, 1206 (N.D.
Cal. 2013); see also Williams v. US. Bank Nat. Ass'n, 290 F.R.D. 600, 613 (E.D.
Cal. 2013). Accordingly, this Court agrees that it is appropriate to provide the
Notices to potential class members for the previous three years. Adams, 242
F.R.D. at 542. If this Court later determines that the general two year statute of
limitations applies, then claims that fall outside the time period can be pared from
the collective action.
V. Preliminary Discovery
Exploration's final objection is to Judge Ostby's refusal to allow preliminary
discovery. This Court finds that Judge Ostby properly did not allow Exploration to
conduct preliminary discovery. A court's decision on a motion for conditional
certification is "based primarily on the pleadings and any affidavits submitted by
the parties." Leuthold, 224 F.R.D. at 467. In granting conditional certification,
courts do not even need to consider evidence presented by the defendant.
Villarreal v. CaremarkLLC, 66 F. Supp. 3d 1184, 1190 (D. Ariz. 2014). Courts do
not "resolve factual disputes, decide substantive issues on the merits or make
credibility determinations at the first stage." Guy, 2014 WL 1899006 at *4. Given
the limited inquiry at this step in the proceedings, Exploration is not entitled to
After a de novo review, this Court agrees entirely with Judge Ostby.
Accodingly, IT IS HEREBY ORDERED:
1. Judge Ostby's Findings and Recommendations (Doc. 33) are ADOPTED
2. Casarotto's Motion for Conditional Certification and Notice (Doc. 27) is
GRANTED IN PART as follows.
3. Exploration has seven calendar days to provide Casarotto's Counsel, in
readable electronic format, the names, mailing addresses, and email addresses of
all putative members of the conditionally certified class. This class includes all
Flowback Operators employed by Exploration in the last three years, from the date
Casarotto's motion was filed, August 19, 2015.
4. Casarotto has seven additional calendar days to mail the Initial Notice
attached to Judge Ostby's Findings and Recommendations (Doc. 33 at 23-24) to all
putative class members. Casarotto shall file a notice in this action that the Initial
Notices have been mailed. Casarotto may send the Reminder Notice attached to
Judge Ostby's Findings and Recommendations (Doc. 33 at 26) 30 days after the
Initial Notices are mailed. Casarotto must file a notice with the Court indicating
the date the Reminder Notices have been mailed.
5. All class members must opt-in within 60 days of the date the Initial
Notices were mailed. No opt-ins are permitted after that deadline passes.
DATED this)'.["day of December, 2015.
United States District Judge
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