Greene v. Alan Waxler Group Charter Services, LLC

Filing 198

ORDER Denying 174 Motion decertify as a representative class and collective action. Signed by Judge James C. Mahan on 6/26/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ROBERT GREENE,

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2:09-CV-748 JCM (NJK)

Plaintiff,

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v.

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ALAN WAXLER GROUP CHARTER
SERVICES, LLC dba AWG CHARTER
SERVICES, et al.,

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Defendants.

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ORDER

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Presently before the court is a motion to decertify filed by defendants Alan Waxler and Alan

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Waxler Group Charter Services LLC (hereinafter “AWG” or defendant). (Doc. # 174). The plaintiffs

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have responded with an opposition to the motion, (doc. # 188), and the defendants have replied, (doc.

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# 191).

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I.

Background

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The case arises out of the plaintiffs’ allegations that the defendants failed to pay employees

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for all hours worked and to pay overtime as required by Nevada wage-and-hour laws and the Fair

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Labor Standards Act (FLSA). The court initially denied the plaintiffs’ request to certify a class or

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collective action for failure to demonstrate numerosity, (doc. # 94), but granted the plaintiffs’ second

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request, (doc. # 103).

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The court certified the following: (1) Class under Federal Rule of Civil Procedure 23: all

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current and former drivers employed by the AWG defendants in the state of Nevada from 2003 to

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James C. Mahan
U.S. District Judge

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the present. (doc. # 112, Ex. A); and (2) FLSA collective action: all current and former drivers

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employed by the AWG defendants from 2003 to the present excluding those employees over whom

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the Secretary of the U.S. Department of Transportation has power to establish qualifications and

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maximum hours of service rules pursuant to the Motor Carrier Act of 1935. Id.

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II.

Legal Standard

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A. Decertification of Class Action Under Rule 23

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The class-action device was designed as "an exception to the usual rule that litigation is

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conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S.

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682, 700-701 (1978). Class relief is "peculiarly appropriate" when the "issues involved are common

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to the class as a whole" and when they "turn on questions of law applicable in the same manner to

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each member of the class." Id. at 701. In such cases, "the class-action device saves the resources of

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both the courts and the parties by permitting an issue potentially affecting every [class member] to

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be litigated in an economical fashion under Rule 23." Id.

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"[T]he prerequisites of numerosity, commonality, typicality, and adequacy of representation"

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specified in Rule 23(a), effectively "limit the class claims to those fairly encompassed by the named

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plaintiff's claims." General Telephone Co. of Northwest v. EEOC, 446 U.S. 318, 330 (1980). “This

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does not mean merely that they have all suffered a violation of the same provision of law.” Wal-Mart

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Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). In order to certify, "a class representative must

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be part of the class and ‘possess the same interest and suffer the same injury' as the class members."

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East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).

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B. Decertification of Collective Action Under FLSA

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The FLSA was created to provide a uniform national policy of guaranteeing compensation

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for all work or employment covered by the act. Barrentine v. Arkansas–Best Freight Sys., Inc., 450

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U.S. 728, 741 (1981). The FLSA grants individual employees broad access to the courts and permits

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an action to recover minimum wages, overtime compensation, liquidated damages, or injunctive

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relief. Id. at 740. Under the FLSA, an employee may initiate a collective action on behalf of himself

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or herself and other similarly situated people. 29 U.S.C. § 216(b). Court-supervised notice of

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James C. Mahan
U.S. District Judge

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pendency of § 216(b) actions “serves the legitimate goal of avoiding a multiplicity of duplicative

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suits and setting cutoff dates to expedite disposition of the action.” Hoffman–La Roche, Inc. v.

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Sperling, 493 U.S. 165, 172 (1989).

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There is a two-tiered approach to certifying a collective action under the FLSA. The first tier

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is the “notice stage” which requires only a “modest factual showing” and “the bar is quite low . . .

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typically result[ing] in conditional class certification.” Small v. Univ. Med. Ctr. of S. Nev., no. 2:13-

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cv-00298-APG-PAL, 2013 WL 3043454, at *1 (D. Nev. June 14, 2013). In the notice stage, the

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essential question is whether employees are sufficiently similarly situated, so that notice should be

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sent to prospective plaintiff[s].” Id. This “modest factual showing” standard is used because, at the

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initial stage of a collective action, the court has only minimal evidence to make its determination as

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to class member certification. Fetrow-Fix v. Harrah’s Entertainment, Inc., no. 2:10-cv-00560-RLH-

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PAL, 2011 WL 6938594, at *3 (D. Nev. Dec. 30, 2011).

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During the “second stage” of the analysis, a court reviews several factors in determining

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whether to decertify a conditionally certified collective action, including “(1) disparate factual and

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employment settings of the individual plaintiffs; (2) the various defenses available to defendant

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which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4)

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whether plaintiffs made the [proper] filings.” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,

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1103 (10th Cir. 2001).

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III.

Discussion

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The defendants’ argue that the plaintiffs failed to produce evidence of damages. (Doc. # 188).

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However “[d]amage calculations alone cannot defeat certification” as such determinations in “nearly

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all wage-and-hour class actions” may be determined individually “once the common liability

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questions are adjudicated.” Leyva v. Medline Indus. Inc., 716 F.3d 510, 513-14 (9th Cir. 2013).

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Furthermore, representative testimony of the named plaintiffs is sufficient to establish a

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prima facie right to recover for non-testifying individuals on FLSA claims. McLaughlin v. Ho Fat

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Seto, 850 F.2d 586, 589 (9th Cir. 1988). Therefore even without evidence on the record to support

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individualized calculations of damages, evidence of a practice or informal policy requiring

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James C. Mahan
U.S. District Judge

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employees to work off-the-clock is sufficient to show liability and commonality. Furthermore, the

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declarations already on the record indicate the defendants had such a practice, and are sufficient to

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certify a collective action. (Doc. # 73-1).

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The court, in granting the initial certifications, has already determined that the plaintiffs meet

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the Rule 23 requirements and the initial “similarly situated” requirement under the FLSA. Although

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a judge is “free to modify” Rule 23 certifications, initial certification is granted only after all

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elements are met and should be modified only “in light of subsequent developments in litigation.”

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Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). In the instant case there has been no such

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development.

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The defendants also claim that the plaintiffs have failed to reach the higher burden at the

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second stage of the collective action analysis, (doc. # 174), yet simultaneously claim “the inquiry [of

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the certification of a class under Rule 23] is largely the same under the FLSA.” Id. Under the logic

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of the defendants, it follows that if Rule 23 certification standards are the same as the FLSA

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decertification inquiry, the court’s decision to certify the Rule 23 class action, (doc. # 112), would

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be sufficient to meet the burden of showing that the plaintiffs are “similarly situated.”

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The defendants also fail to show how the common contentions, failure to pay for all hours

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worked and for unpaid overtime, do not render the plaintiffs sufficiently “similarly situated.” The

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defendants move to decertify the class by taking a narrow view of the allegations in order to

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manufacture inconsistencies – pointing out that the named plaintiffs had different day-to-day

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activities, drove different types of vehicles, and are alleging different types of work duties that the

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defendants required be performed off the clock. (Doc. # 174). However, merely pointing to

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differences in minor details, such as what work was required off the clock, does not constitute a

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“disparate factual or employment setting.” Schemkes v. Presidential Limousine, no.

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2:09-cv-1100-GMN-PAL, 2011 WL 868182, at *3 (D. Nev. Mar. 10, 2011) (holding that although

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the drivers were from different companies and “specific facts related to certain employees may differ,

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it does not change the allegations that there was a violation of the law under very similar

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circumstances common to all parties”).

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James C. Mahan
U.S. District Judge

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Furthermore, the defendants do not put forward any individualized defenses. Moreover, the

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defendants’ argument regarding the motor carriers’ exemption from the FLSA has already been

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rejected by the court. (Doc. # 94). The court is capable of creating a class that excludes those

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employees for whom the defense creates an exception. Therefore, the evidence on the record

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continues to demonstrate that the “commonality” and “similarly situated” criteria are met, and the

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court finds no reason to decertify the collective action.

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IV.

Conclusion

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The defendants’ arguments regarding the plaintiffs’ “dearth of evidence” as to damages do

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not persuade the court that the class and collective actions should be decertified, and would be more

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properly addressed in a motion for summary judgement. As the defendants’ motion to decertify puts

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forth arguments that have previously been rejected and does not provide additional evidence, it will

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be denied.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

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decertify as a representative class and collective action, (doc. # 174), be, and at the same time hereby

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is, DENIED.

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DATED June 26, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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