Anderson v. Mountain View Pizza Co. et al

Filing 56

ORDER granting 55 Joint Motion to Stay. Signed by Magistrate Judge Timothy J. Cavan on 2/13/2019. (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
MIKE ANDERSON, individually and
on behalf of similarly situated persons,
Plaintiff,

CV 18-58-BLG-SPW-TJC

ORDER GRANTING JOINT
MOTION

vs.
MOUNTAIN VIEW PIZZA CO.,
BLACK HILLS PIZZA, INC., and
CHOOSE THE RIGHT PIZZA, LLC,
Defendants.
The parties have filed a Joint Motion to Approve Stipulated Form of Notice
of Collective Action and Stay Litigation Pending Mediation. (Doc. 55.) Plaintiff
filed this action under the Fair Labor Standards Act (“FLSA”) and requested that
the case proceed as a collective action under 29 U.S.C. § 216(b). (Doc. 1.)
Plaintiff alleges Defendants used a flawed method to determine reimbursement
rates for drivers who use their own vehicles to deliver pizza and other food items to
Defendants’ customers. (Id.) Plaintiff asserts the Defendants’ methodology
provides such an unreasonably low reimbursement rate that the drivers’
unreimbursed expenses cause their wages to fall below the applicable minimum
wage. (Id.) Plaintiff seeks to recover unpaid minimum wages owed to himself and
all similarly situated deliver drivers employed by Defendants. (Id.)

Employees pursing a FLSA action to recover unpaid minimum wages may
bring the action “for and in behalf of [] themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). Unlike in class actions brought under Rule 23 of
the Federal Rules of Civil Procedure, a putative plaintiff in a FLSA collective
action must affirmatively opt in to the action. Id.
Neither the FLSA nor the Ninth Circuit have defined “similarly situated.”
But most courts within the Ninth Circuit and this district have adhered to a twostep certification procedure. Casarotto v. Exploration Drilling, Inc., 2015 WL
8780050, *2 (D. Mont. Dec. 15, 2015). At step one, the court makes a preliminary
determination whether to conditionally certify a class and send notice to potential
class members. Id. “This is a lenient standard, and the ‘usual result is conditional
class certification.’” Id. (citing Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530,
536 (N.D. Cal. 2007). The second step occurs at the close of discovery, and is
generally prompted by a motion for decertification filed by the defendant. Id.
Here, the parties have stipulated to conditionally certifying this case as a
collective action under and FLSA. (Doc. 55 at ¶ 6.) They have also provided the
court with a proposed notice to be sent to all current and former delivery drivers
employed by Defendants within three years preceding the Court’s order approving
the notice. (Id.) The parties indicate that following issuance of the notice and
expiration of the opt-in period, they intend to engage in mediation with a mediator.

Id. The parties request the Court continue to stay the case while they pursue
mediation. Id. The parties agree that in the event the case does not settle, Plaintiff
retains the burden to obtain final collective action certification, and that
Defendants may file their own motion to decertify the collective action. Id.
Based on the stipulation of the parties, the Court finds good cause to
conditionally certify this case as a collective action under 29 U.S.C. § 216(b) and
permit notice to all putative class members of their opportunity to opt in.
Accordingly, IT IS HEREBY ORDERED that the parties Joint Motion is
GRANTED as follows:
1.

Plaintiff’s claim asserted under the Fair Labor Standards Act

(“FLSA”) is conditionally certified as a collective action;
2.

The parties’ agreed form of notice is approved for dissemination, per

the parties’ Joint Motion, to all current and former delivery drivers employed by
Defendants within three years preceding the Court’s Order approving notice plus
periods of tolling, with the exception that the caption at the top of the first page
of the notice shall be corrected to read “UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MONTANA”;
3.

Defendants’ stipulation to conditional certification shall not be

construed as an admission that liability exists for any period of time, including but
not limited to, the third year;

4.

In the event this case does not settle, Plaintiff retains the burden to

move for and obtain final collective action certification, and Defendants reserves
the right to oppose that motion, and to file its own motion to decertify the
collective action;
5.

This litigation is stayed until August 1, 2019 to permit the parties to

disseminate notice, disclose data and mediate;
6.

Within 30 days of this Order, Defendant shall disclose information

and data pursuant to the parties’ Joint Motion to enable dissemination of the
parties’ agreed-upon notice;
7.

Within 30 days of the close of the opt-in period, Defendants shall

produce data pertaining to all opt-in Plaintiffs pursuant to the parties’ Joint Motion;
8.

The parties shall mediate within 30 days of Defendants’ production of

such data pertaining to all opt-in Plaintiffs;
9.

Within 10 days of the conclusion of mediation, the parties shall report

to the Court whether mediation was successful.
DATED this 13th day of February, 2019.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge