McSwiggin et al v. Omni Limousine

Filing 70

ORDER denying 35 Motion to Certify Class.; denying 36 Motion.; denying 68 Motion for District Judge to Reconsider Order. IT IS FURTHER ORDERED that the untimely joinders (ECF Nos. 39 , 50 , 61 ) be, and the same hereby are, STRICKEN. Signed by Judge James C. Mahan on 1/23/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 CHRISTY MCSWIGGIN MCSWIGGIN, 13 KEVIN Case No. 2:14-cv-02172-JCM-NJK ORDER 11 12 and Plaintiffs, v. OMNI LIMOUSINE, 14 Defendant. 15 16 Presently before the court is named plaintiffs Christy and Kevin McSwiggin’s motion to 17 certify a class pursuant to Federal Rule of Civil Procedure 23, defendant Omni Limousine’s motion 18 for decertification of the conditional class formed pursuant to the Fair Labor Standards Act 19 (“FLSA”), and defendant’s objection to Magistrate Judge Koppe’s September 23, 2016, order 20 denying defendant’s second motion to strike. (ECF Nos. 35, 36, 68). The parties have filed 21 responses and replies for the first two motions, and plaintiffs have filed a response to defendant’s 22 objection. (ECF Nos. 41, 43, 53, 55, 69). 23 Plaintiffs filed a class action complaint on December 19, 2014, alleging seven causes of 24 action against defendant that involve their compensation for their employment as 25 “Chauffeurs/Limousine drivers.” (ECF No. 1 at 5). On July 16, 2015, this court granted plaintiffs’ 26 motion for circulation pursuant to 29 U.S.C. § 216(b), allowing plaintiffs twenty-eight days to 27 provide notice and establishing an opt-in period for putative class members spanning 90 days. 28 (ECF Nos. 21, 63). 1 A. Motion to certify 2 On July 29, 2016, this court denied plaintiffs’ motion to extend time to provide notice, 3 finding that plaintiffs’ realization that no notice had been given—fifty-one days after the close of 4 time to do so—was inexcusable neglect. (ECF No. 63). Reasoning that “prospective plaintiffs 5 cannot opt-in to litigation of which they have not received notice,” this court also deemed the opt- 6 in period as expired. (Id. at 7). 7 Federal Rule of Civil Procedure 23(a) mandates that “[o]ne or more members of a class 8 may sue or be sued as representative parties on behalf of all members only if . . . the class is so 9 numerous that joinder of all members is impracticable.” A class’s certification may be questioned 10 for failure to satisfy this numerosity requirement. See Harik v. California Teachers Ass’n, 326 11 F.3d 1042, 1051 (9th Cir. 2003). A class comprised of an insufficient number of members will 12 not be allowed to form. See id. (citing General Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980)) (“The 13 Supreme Court has held [a fifteen-person class] is too small.”). 14 In this case, plaintiffs have submitted four notices of filing of consent to joinder. (ECF 15 Nos. 13, 39, 50, 61). Together, these notices indicate that fifteen individuals wish to participate in 16 the litigation. See (ECF No. 13, 39, 50, 61). Yet, plaintiffs acknowledge that the deadline for 17 opting into the litigation was November 16, 2015. (ECF No. 29). All notices but the first—which 18 involved only six individuals—were filed after that deadline. (ECF Nos. 13, 39, 50, 61). 19 Even if all of the joinders were timely, the proposed class still would fail the numerosity 20 requirement. See Harik, 326 F.3d at 1051. This is true even by plaintiffs’ own arguments. See 21 (ECF No. 35 at 3) (citing Int’l Molders’ & Allied Workers’ Local Union No. 164 v. Nelson, 102 22 F.R.D. 457, 461 (N.D. Cal. 1983)). Therefore, plaintiff’s motion is denied, and the purported class 23 will not be certified under Rule 23. Defendant’s motion for decertification 24 B. 25 Employees, for themselves and “employees similarly situated,” may sue their employers 26 under the FLSA. 29 U.S.C. § 216(b); see Senne v. Kansas City Royals Baseball Corp., 315 F.R.D. 27 523, 585 (N.D. Cal. 2016). A collective action under the FLSA is certified at two stages. See, 28 e.g., Senne, 315 F.R.D. at 585. This court has already ruled to conditionally certify this FLSA 1 class during the “notice” stage, which requires a putative class seeking conditional certification to 2 satisfy a low factual threshold. See Greene v. Alan Waxler Grp. Charter Servs., LLC, 2014 WL 3 2919162, at *2 (D. Nev. June 26, 2014) (quoting Small v. Univ. Med. Ctr. of S. Nev., 2013 WL 4 3043454, at *1 (D. Nev. June 14, 2013); see also (ECF No. 21). 5 After discovery, district courts reassess whether an FLSA class is “similarly situated” 6 pursuant to the FLSA.1 See Greene, 2014 WL 2919162, at *2. To that end, this court examines 7 “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses 8 available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural 9 considerations; and (4) whether plaintiffs made the [proper] filings.”2 Id. (quoting Thiessen v. 10 Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)). 11 As an initial matter, any potential class asserted under the FLSA in this case must be 12 restricted to those six individuals indicated in the timely notice of filing of consents to joinder. 13 (ECF No. 13). To do otherwise would effectively eviscerate this court’s July 29, 2016, order 14 denying plaintiffs’ motion to extend the notice and opt-in deadlines. (ECF No. 63). Moreover, 15 plaintiff has offered declarations from each individual in that putative class. 16 Christy McSwiggin indicates that she did not receive additional overtime compensation 17 when she worked more than 40 hours a week, was required to perform actions before, after, and 18 in-between driving tasks without compensation, “[defendant] . . . regulated [her] appearance, 19 conduct, and activities while performing them,” and had driven an interstate trip. (ECF No. 43-4 20 at 30–34). 21 Kevin McSwiggin similarly states that he is not paid overtime for alleged labor performed 22 prior to his shift, waited or worked between rides without compensation for about two hours each 23 day although his behavior and appearance was regulated—purportedly pursuant to defendant’s 24 Chauffeur Handbook, and he echoes Christy’s sentiment that “[i]t is my belief that, outside of a 25 26 27 28 1 This court issues this order cognizant that a class action under 29 U.S.C. § 216(b) is separate from one governed by Federal Rule of Civil Procedure 23(a). See Greene, 2014 WL 2919162, at *1–2. 2 The court is satisfied in this case that the parties have made the appropriate filings addressing the present decertification question. 1 few select employees, no other chauffeur/limousine drivers at Omni are regularly assigned 2 interstate trips.” (Id. at 36–41). 3 Next, Dawn-Marie Voss declares that she “was only paid for the time [she] spent actually 4 driving the client” and likewise alleges that she was not compensated for overtime or for time 5 allegedly spent working before, in between, or after dropping off patrons. (Id. at 82–83). Ms. 6 Voss asserts that she has only done one interstate trip while working for Omni. (Id.). 7 Mark Voss asseverates the same allegations as the prior individuals who joined the action 8 such as a lack of pay for overtime or alleged compensable work done before, in-between, or after 9 work; however, he states that he has performed multiple interstate trips. (Id. at 87–89). 10 Bruce Williams asserts roughly the same facts, except that he has never performed an 11 interstate trip. (Id. at 91–94). The final potential member of the class, Nita Brandelius-Stern 12 reasserts these common allegations, but she has never driven an interstate trip. (Id. at 78–80). 13 Accordingly, it appears that the factual and employment settings of these six individuals are not 14 excessively different from one another. See Greene, 2014 WL 2919162, at *2. In sum, it appears 15 that the six putative members of the FLSA class all allege factually similar allegations regarding 16 the circumstances of their employment and compensation against defendant. 17 Turning to defendant’s arguments, this court first acknowledges defendant’s reply offering 18 cases where district courts have decertified FLSA classes because the class size was too small. 19 (ECF No. 53). Although the courts in Griffith v. Fordham Fin. Mgt., 2016 U.S. Dist. LEXIS 10459 20 at *9 (S.D.N.Y., Jan. 28, 2016), and Keef v. M.A. Mortenson Co., 2009 U.S. Dist. LEXIS 14358, 21 at *8 (D. Minn., Feb. 24, 2009), found that argument persuasive, this court is not aware of any 22 “numerosity” requirement for an FLSA class. See Greene, 2014 WL 2919162, at *2; see also 23 Verma v. 3001 Castor, Inc., 2016 U.S. Dist. LEXIS 164026, at *19 (E.D. Pa. Nov. 29, 2016) 24 (reasoning that citation to Keef was unpersuasive). Indeed, there is no issue of “enthusiasm,” here 25 but rather a failure to provide timely notice.3 See Griffith, 2016 U.S. Dist. LEXIS 10459 at *9 26 (S.D.N.Y., Jan. 28, 2016); see also (ECF No. 63). 27 28 3 Although this court is cognizant that a relatively small class does not produce the same efficiency benefits from collective litigation as a larger class would, this court makes this determination in light of the FLSA decertification standard. See Greene, 2014 WL 2919162, at *2. 1 Defendant’s motion to decertify endeavors to show that the FLSA class members are not 2 “similarly situated.” (ECF No. 36). Its arguments applicable to the present motion include, inter 3 alia, that drivers’ daily activities differ in terms of pre-shift activities, mid-shift activities, 4 unpermitted mid-shift activities, meal breaks, and post-shift activities. (Id.). Next, defendant 5 asserts that individual workers have correspondingly individualized credibility issues, particularly 6 as it pertains to the alleged “dishonest practice among Omni’s drivers of ‘stealing rides.’” (Id. at 7 12). Further, defendant asserts that individual drivers’ non-compensable off-duty activities and 8 the billing system’s rounding practices require individualized examination. (ECF No. 36). Finally, 9 defendant asserts that the “piece-rate” system is suitable for the limousine driver profession and 10 permissible under the FSLA, and otherwise addresses the merits of the case as it pertains to 11 interstate travel and “overtime experiences.” (Id. at 13, 19); see also C.F.R. 778.418(b). 12 Relevantly, this court in Greene ruled that “merely pointing to differences in minor details, 13 such as what work was required off the clock, does not constitute a ‘disparate factual or 14 employment setting.’” 2014 WL 2919162, at *3 (quoting Schemkes v. Presidential Limousine, 15 2011 WL 868182, at *3 (D. Nev. Mar. 10, 2011)). Therefore, the major point of defendant’s 16 argument that is reiterated throughout its discussion of individual considerations for FLSA 17 decertification, that individual work experiences may be different among potential class members, 18 is unpersuasive in light of these particular allegations and this conditional class. 19 Defendant suggests that the time between tasks is used by drivers for dishonest acts. (ECF 20 Nos. 36, 36-9). Plaintiffs respond that “[d]efendant does not allege or provide evidence showing 21 that any Plaintiff engaged in this practice.” (ECF No. 43 at 21 n.47). In its reply, defendant 22 protests that this response does not account for Kevin McSwiggin’s admission “that one-third of 23 the putative collective action members engaged in ‘stealing rides.’” (ECF Nos. 36 at 10, 53 at 14 24 n.9). Upon review, that deposition does identify any of the current plaintiffs as engaging in that 25 practice. (ECF No. 36-9 at 11–12). 26 With respect to interstate activities, Omni asserts that its divers are exempt from overtime 27 activities pursuant to the Federal Motor Carriers Act, and defendant also states that the piecework 28 system of compensation is legally acceptable. (ECF No. 36). However, the standard for 1 addressing the second stage of the FLSA certification process does not include an assessment of 2 the legal merits of a defendant’s arguments, just a consideration of the individualized or collective 3 nature of the case. See Greene, 2014 WL 2919162, at *2. Therefore, the underlying merits of the 4 class’s claims should not be adjudicated at this stage of the litigation. Similarly, defendant’s 5 citation to Berry v. County of Sonoma, does not control here because that adjudication involved 6 the merits of an FLSA claim. See 30 F.3d 1174, 1182 (9th Cir. 1994). Moreover, defendant’s 7 citation to Integrity Staffing Solutions, Inc. v. Busk, is not helpful to its argument, and the alleged 8 contents of defendant’s Chauffeur Handbook and the plaintiffs’ declarations may suggest that 9 drivers have been employed in part to perform the relevant non-driving activities. See 135 S. Ct. 10 513, 519 (2014) (clarifying an issue of law whether the time workers spent submitting to security 11 screenings was compensable under the FLSA); see also (ECF Nos. 43-2, 43-4). 12 Finally, a defendant should not be allowed to hide behind its own imprecise timekeeping 13 system to automatically prevail on a motion for decertification—a relatively early stage of this 14 proceeding. See Bao Yi Yang v. Shanghai Gourmet, LLC, 471 F. App’x 784, 787 (9th Cir. 2012) 15 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946) (partially superseded by 16 statute on other grounds, as described in IBP, Inc. v. Alvarez, 546 U.S. 21, 26 (2005)) (discussing 17 factual burdens in the context of an appeal from a bench trial judgment). Therefore, defendant’s 18 discussion of rounding errors or other idiosyncratic timekeeping practices does not defeat 19 plaintiffs’ conditional certification. 20 Regarding fairness and procedural issues, defendant voices its concerns that statistical 21 evidence would violate its due process rights and reiterates the procedural difficulty of handling 22 individualized issues of liability. (ECF No. 36). Due to the unusual proceedings in this action 23 resulting in the FLSA class’s restriction to only six individuals, this court has little concern 24 regarding the manageability of this case.4 Moreover, the class size in this case alleviates some 25 worry regarding unfairness that could arise due to a supposed need or temptation to solely use 26 statistical or representative evidence. If defendant is concerned about the kinds of evidence that it 27 28 4 As discussed above, these class members have already submitted individual declarations for the record. (ECF No. 43-4). 1 believes plaintiff may offer, it has the means to express those concerns to the court, such as a 2 motion in limine.5 3 In addition, defendant’s reply refers to this court’s decision in Hinojos v. Home Depot, Inc., 4 2006 WL 3712944, at *3 (D. Nev. Dec. 1, 2006). However, that decision rested on manageability 5 concerns as well as the lack of “common representatives who could testify about a single policy 6 or practice applicable to the class as a whole” due to a lack of “factual nexus.” Id. at *2–3 (“The 7 Court has not been presented with evidence of any improper common practice, policy, or culture 8 at Home Depot that would justify conditional certification on a nationwide basis.”); see also Young 9 v. Cate, 2013 WL 684450, at *5 (E.D. Cal. Feb. 22, 2013) (recognizing plaintiffs’ limited 10 knowledge and lack of indication of an “overarching policy” when denying conditional 11 certification). 12 There is no large number of disparate employing entities here that would render testimony 13 regarding common policies problematic, and plaintiffs’ declarations indicate common, 14 overarching policies. 15 Furthermore, defendant has not illustrated that this court’s particular concern in Hinojos regarding 16 clear “contradictions between plaintiffs’ declarations and their deposition testimony . . . show[ing] 17 the importance of cross-examination of each plaintiff” is present. 2006 WL 3712944, at *3. 18 Accordingly, Hinojos is distinguishable from the present case. See id. See (ECF No. 1); see also Hinojos, 2006 WL 3712944, at *1–3. 19 To conclude, it appears that plaintiffs, in the particular circumstances of this case, are 20 sufficiently “similarly situated” under the FLSA to survive defendant’s motion for decertification. Defendant’s objection to the magistrate judge’s order 21 C. 22 Regarding defendant’s objection to Magistrate Judge Koppe’s order, plaintiffs accurately 23 argue that defendant has failed to file a timely objection to that order. (ECF Nos. 68, 69). Local 24 Rule IB 3-1 states: “The deadline to file and serve any objections to a magistrate judge’s order is 25 14 days after service of the order.” Magistrate Judge Koppe’s order is dated September 23, 2016. 26 (ECF No. 67). Thus, October 7, 2016, was the deadline to file the relevant objection. See LR IB 27 5 28 This court is cognizant that Magistrate Judge Koppe denied—without prejudice— defendant’s refiled motion to strike the opinions of plaintiff’s expert witnesses and request for a Daubert hearing. (ECF No. 67). 1 3-1; see also Fed. R. Civ. P. 6(a)(1). Yet, defendant filed its objection on October 11, 2016. (ECF 2 No. 68). Therefore, defendant’s objection is denied as untimely. 3 Accordingly, 4 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs’ motion to 5 6 7 8 9 10 11 12 certify a class (ECF No. 35), be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that defendant’s motion for decertification (ECF No. 36) be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that defendant’s objection to Magistrate Judge Koppe’s order (ECF No. 68) be, and the same hereby is, DENIED as untimely. IT IS FURTHER ORDERED that the untimely joinders (ECF Nos. 39, 50, 61) be, and the same hereby are, STRICKEN. DATED THIS 23rd day of January, 2017. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAMES C. MAHAN UNITED STATES DISTRICT JUDGE

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