Chapman v. BOK Financial Corporation
Filing
96
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying 77 Motion to Dismiss; denying 78 Motion for Miscellaneous Relief (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
NANCY CHAPMAN,
individually and on behalf of a class
of those similarly situated,
Plaintiff,
v.
BOK FINANCIAL CORPORATION,
and BOKF, NA,
Defendants.
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Case No. 12-CV-613-GKF-PJC
OPINION AND ORDER
Before the Court is the Motion to Decertify or Alternatively for Rule 41 Dismissal and
for Tolling [Dkt. ## 77, 78] filed by plaintiff Nancy Chapman (“Chapman”), individually and on
behalf of a conditionally certified class.
On April 30, 2013, the Court granted plaintiff Chapman’s Motion for Conditional
Collective Action Certification for: (i) plaintiffs’ misclassification claim, wherein plaintiffs
allege that BOK misclassified loan officers as exempt under the Fair Labor Standards Act
(“FLSA”) after April 30, 2010 and before January 1, 2011; and (ii) plaintiffs’ Dallas/Ft. Worth
(“DFW”) “off the clock” claim wherein plaintiffs allege that BOK instructed DFW loan officers
to not report overtime hours. Fourteen (14) plaintiffs have opted in to the misclassification claim
and five (5) plaintiffs have opted in to the DFW “off the clock” claim.
The Court recently granted partial summary judgment to BOK on plaintiffs’
misclassification claim, as it was barred by the statute of limitations.1 See Dkt. # 95. Plaintiffs’
DFW “off the clock” claim remains.
A. The Motion to Decertify
The FLSA permits actions to be brought by an employee for and on behalf of herself and
other employees similarly situated. 29 U.S.C. § 216(b). The “overriding question” in certifying
such an action is whether the original plaintiff and the opt-in plaintiffs are “similarly situated.”
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001).
When determining on an ad hoc case-by-case basis whether plaintiffs are “similarly
situated,” “a court typically makes an initial ‘notice stage’ determination of whether plaintiffs are
‘similarly situated.’” Id. “At the conclusion of discovery (often prompted by a motion to
decertify), the court then makes a second determination, utilizing a stricter standard of ‘similarly
situated.’” Id. at 1102-1103. “During this ‘second stage’ analysis, a court reviews several
factors, including (1) disparate factual and employment settings of the individual plaintiffs; (2)
the various defenses available to defendant which appear to be individual to each plaintiff; [and]
(3) fairness and procedural considerations.” Id. at 1103 (internal quotation omitted). If the
plaintiffs are indeed similarly situated, the district court allows the collective action to proceed to
trial. Kaiser v. At The Beach, Inc., 2010 WL 5114729, at *4 (N.D. Okla. Dec. 9, 2010). If the
claimants are not similarly situated, the district court decertifies the class, the opt-in plaintiffs are
dismissed without prejudice, and the class representative—i.e., the original plaintiff—proceeds
to trial on her individual claims. Id. (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214
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Despite her Motion to Decertify, Chapman “agrees that the issues raised on summary judgment can and
should be decided collectively. Any ruling on the pending motions should apply to all plaintiffs.” [Dkt. #
82, p. 4].
2
(5th Cir. 1995), overruled in part on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003)).
In moving to decertify, Chapman states that she and the opt-in plaintiffs are similarly
situated,2 but that fairness and procedural considerations favor proceeding individually rather
than collectively. In her reply, however, she contends the opt-in plaintiffs are not similarly
situated. In support of her latest position, Chapman points to a BOK representative’s testimony
that BOK applied FLSA exemptions to “some or all [plaintiffs] in various combinations,” that
BOK did not believe plaintiffs were “similarly situated,” and that BOK believed plaintiffs
“should not proceed collectively.”
The testimony that BOK applied FLSA exemptions to some or all plaintiffs in various
combinations is much less significant following the Court’s Opinion and Order granting
summary judgment on the misclassification claim. The number of plaintiffs and the claimed
exemptions are now greatly reduced. As more fully discussed below, the presence of
individualized defenses, if any, does not warrant decertification. And as to whether plaintiffs are
so similarly situated that the DFW “off the clock” claim should proceed collectively, this Court
must make its decision without regard to the fluctuating litigation positions of the parties in this
action.
In evaluating fairness and procedural considerations, a court must consider the primary
objectives of a collective action: (1) to lower costs to the plaintiffs through the pooling of
resources; and (2) to limit the controversy to one proceeding which efficiently resolves common
issues of law and fact that arose from the same alleged activity. Kaiser, 2010 WL 5114729, at
2
“To proceed to trial collectively, Plaintiff Chapman would have to show—and Plaintiffs believe she
could show—that she is similarly situated to the opt-in plaintiffs.” [Dkt. # 77, p. 4].
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*8. A court must also determine whether it can coherently manage the class in a manner that
will not prejudice any party. Id.
Plaintiffs raise five arguments regarding fairness and procedural considerations. First,
they argue decertification is necessary because plaintiffs in the misclassification class have “off
the clock” claims outside the Dallas/Fort Worth area that have been excluded from this case.
Now that the misclassification claim is gone, this argument is moot.
Second, plaintiffs argue decertification is necessary because BOK intends to assert
individualized defenses. For example, plaintiff Allen was never classified as exempt under the
outside sales exemption, but BOK argues the other plaintiffs were subject to that exemption.
Insofar as only five plaintiffs remain, the court concludes the remaining individualized defenses
are not so complex as to require decertification. The need for individual factual determinations
is not fatal to certification of a FLSA collective action. Lozoya v. All Phase Landscape Constr.,
Inc., 2014 WL 222104, at *3 (D. Colo. Jan. 21, 2014) (individualized factual defenses are not
different classes of legal defensive arguments); Underwood v. NMC Mortg. Corp., 2009 WL
1322588, at *4 (D. Kan. May 11, 2009). Douglas v. First Student, Inc., 888 F. Supp. 2d 929,
935 (E.D. Ark. 2012), cited by plaintiffs, is distinguishable in no small part because it involved
the claims of 256 opt-in plaintiffs.
Third, plaintiffs argue BOK will not be prejudiced by decertification, because BOK
would face the same claims—whether combined in one action or separated into five separate
actions—and the discovery already conducted could be utilized in the individual actions. In
response, BOK contends it would be prejudiced because (1) a five-plaintiff class is manageable
and preferable to five separate trials; (2) because BOK is prepared to go to trial immediately and
would be subjected to multiple trials at unknown times in the future; and (3) because a single
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trial would conserve judicial and client resources. The Court concludes that the better course at
this late date is to proceed to a single trial.
Fourth, plaintiffs argue that, because BOK did not allow the five plaintiffs to accurately
record their overtime, each plaintiff will have to testify regarding his or her respective hours
worked. Though individualized testimony and fact finding will be necessary, a collective action
is preferable here, as it should provide a process by which common issues of law and fact may be
efficiently resolved.3 In this case, those common issues of law and fact arise from the same
activity—BOK’s alleged practice of instructing Dallas/Ft. Worth loan officers not to report
overtime hours.
Lastly, in their reply, plaintiffs argue BOK has offered no evidence from which the Court
could find the opt-in plaintiffs are similarly situated. However, at the summary judgment
hearing, plaintiffs’ counsel agreed that the remaining plaintiffs were all similar in that (1) they all
have off the clock claims; (2) their off the clock claims began to accrue on January 3, 2011 and
continued until the end of each plaintiffs’ employment; (3) all plaintiffs were employed by the
Bank of Texas; (4) all plaintiffs were under the same policy regarding overtime; (5) all plaintiffs
were mortgage loan officers; and (6) all plaintiffs had the same job duties. These factors are
sufficient to show that the five plaintiffs are similarly situated. Therefore, the collective action
may proceed to trial.
B. The Motion for Dismissal
As an alternative to decertification, plaintiffs ask the Court to dismiss their claims
without prejudice pursuant to Fed. R. Civ. P. 41(a)(2). They contend BOK will not suffer
3
In Kaiser v. At The Beach, 08-CV-586-TCK-FHM, 23 plaintiffs testified in a FLSA collective
action. The court concluded four plaintiffs were exempt, and found all other plaintiffs were
entitled to at least some judgment in their favor. See Kaiser, 08-CV-586-TCK-FHM, Dkt. # 193,
pp. 5, 32, 57.
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prejudice. Defendants oppose dismissal because (1) cross-motions for partial summary judgment
were pending at the time plaintiffs moved for dismissal, and (2) BOK would be prejudiced. As
the cross-motions for partial summary judgment have been resolved, BOK’s first argument is
moot.
Federal Rule of Civil Procedure 41(a)(2) permits a district court to dismiss an action
without prejudice at plaintiff’s request “on terms that the court considers proper.” “The rule is
designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to
permit the imposition of curative conditions.” Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d
354, 357 (10th Cir. 1996) (internal quotations omitted). Absent “legal prejudice” to the
defendant, the district court normally should grant such a dismissal. Ohlander v. Larson, 114
F.3d 1531, 1537 (10th Cir. 1997). Prejudice does not arise simply because a second action has
been or may be filed against the defendant, which is often the whole point in dismissing a case
without prejudice. Brown v. Baeke, 413 F.3d 1121, 1124 (10th Cir. 2005) (citing Am. Nat’l Bank
& Trust Co. v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991)). Rather, prejudice is a function
of other, practical factors including: “the opposing party’s effort and expense in preparing for
trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of
the need for a dismissal; and the present stage of litigation.” Ohlander, 114 F.3d at 1537.
Defendants argue they would be prejudiced by a voluntary dismissal because: (1) trial is
imminent; (2) the defendants have spent considerable time and resources preparing for trial; (3)
discovery closed in this case on March 17, 2014; (4) dispositive motions were filed and fully
briefed prior to the motion for voluntary dismissal; (5) “[p]laintiff’s explanation for dismissal . . .
is not compelling and is unsupported by relevant legal authority;” and (6) “the advanced stage of
this litigation counsels against dismissal under Rule 41.”
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The Court is persuaded that this action has progressed well beyond the time when a
voluntary dismissal might have been appropriate. Of particular concern is trial is now imminent,
yet the motion for voluntary dismissal was not filed until two months had passed following close
of discovery, and after the motions for partial summary judgment had been fully briefed. BOK
has spent considerable time and resources in preparing for trial.
Moreover, the parties have
engaged in extensive discovery. While plaintiffs claim that dismissal would not prejudice
defendant because they would agree the discovery could be used in subsequent cases, plaintiffs
concede they would not waive their right to seek additional discovery in those subsequent cases.
While plaintiffs cite Brown v. Baeke for the proposition that curative conditions can alleviate
prejudice, the conditions in Brown were more robust than those offered here by plaintiffs. In
Brown the plaintiffs’ curative conditions effectively brought any successive action filed
immediately “to the advanced discovery and pretrial stage at which the initial action was
dismissed.” See Brown, 413 F.3d at 1126. Here, plaintiffs offer no comparable curative
conditions. For the reasons stated by BOK, dismissal without prejudice is improper at this late
stage of litigation.4
WHEREFORE, Plaintiffs’ Motion to Decertify or Alternatively for Rule 41 Dismissal
and For Tolling [Dkt. ## 77, 78] is denied.
IT IS SO ORDERED this 28th day of July, 2014.
As plaintiffs’ request for voluntary dismissal is denied, the issue of tolling is moot.
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