Thomas v. Kellogg Company et al

Filing 455

ORDER denying #439 Defendant's Motion to Dismiss out-of-state opt-ins and to decertify this FLSA collection action; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PATTY THOMAS, et al.,

CASE NO. C13-5136RBL

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Plaintiffs,
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v.

ORDER DENYING MOTION TO
DISMISS AND DECERTIFY

KELLOGG COMPANY, et al.,
Defendants.

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THIS MATTER is before the Court on Defendant Kellogg’s Motion to Dismiss out-of-

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state opt-ins and to decertify this FLSA collective action [Dkt. #439]. The case arises from

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Kellogg’s alleged misclassification and underpayment of employee wages for the three years (the

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limitations period) prior to the filing of this 2013 case.

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Kellogg argues that the Supreme Court’s recent, “transformative” decision in Bristol-

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Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2107) means that this Court

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does not have specific personal jurisdiction over the out-of-state plaintiffs’ claims against it, an

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ORDER DENYING MOTION TO DISMISS AND
DECERTIFY - 1

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out-of-state defendant. It therefore seeks the dismissal (without prejudice) of the claims of 821 of

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the 858 plaintiffs who have opted into this case. Kellogg argues these claims should be asserted

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in the plaintiffs’ home states, or where Kellogg is “home,” in Delaware or Michigan. It does not

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address the effect of the passage of time.

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Kellogg also points out that a new group of Kellogg employees has filed a second, similar

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case in Nevada (Smith v Kellogg, No. C17-1914 (D. Nev.), seeking similar damages for similar

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violations in a different, later time period. Kellogg argues (apparently without irony) that

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because there is a second case, this Court can no longer “oversee the efficient resolution in one

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proceeding of common issues of law and fact arising from the same alleged activity.” [Dkt. #439

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at 18 (emphasis added)]. It seeks decertification of this collective action on the basis that there

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exists a second collective action pending in another jurisdiction—precisely the result it claims

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Bristol Myers mandates.

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Finally, Kellogg argues that the court should decertify the FLSA collective because the

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plaintiffs have no expert testimony supporting their claim that their evidence is representative.

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Plaintiffs argue Kellogg waived its objection to personal jurisdiction by failing to assert

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such a defense and instead vigorously litigating for four and a half years, and indeed moving for

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dismissal only a month before trial. They point out that Bristol Myers repeatedly claims it

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involves only the “straightforward application” of “settled principles” of specific personal

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jurisdiction, and that it does not purport to be the “game changing” “transformative” opinion

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Kellogg claims it is.

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The Court agrees. See Fed. R. Civ. P. 12(h)(1)(B). And even if it did not, Bristol Myers

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concerns only the “due process limits on the exercise of specific jurisdiction by a State.” The

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Supreme Court “left open” the “question of whether the Fifth Amendment imposes the same

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ORDER DENYING MOTION TO DISMISS AND
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restrictions on the exercise of personal jurisdiction by a federal court.” Id. at 1783-84. It is

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therefore not at all clear that Bristol Myers even applies to this case, filed in federal district court.

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Kellogg’s Motion to Dismiss the out-of-state opt-ins’ claims is therefore DENIED.

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Kellogg’s Motion to Decertify based on Smith’s existence DENIED.

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Kellogg’s effort to de-certify the class based on the plaintiffs’ lack of expert testimony

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relies primarily on what it claims is the plaintiffs’ attorney’s representation that they would

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identify an expert. It also argues that Tyson Foods Inc. v Bouaphakeo, 136 S.Ct. 1036 (2016)

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flatly requires expert testimony in collective action cases. But, as the plaintiffs1 point out, that is

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not accurate; Tyson did not hold that such testimony is necessarily always required. Indeed, the

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plaintiffs there did have an expert, but his effort to “calculate an average” donning and doffing

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time for the class was unavailing, because the class members were not similarly situated.

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None of the cases cited support the claim that an expert is necessarily required, and it is

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unclear exactly what evidence Kellogg’s claims cannot be introduced without an expert opinion.

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Plaintiffs cite numerous cases holding that expert testimony is not in fact necessarily required, so

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long as the plaintiffs are similarly situated. See cases collected at Dkt. # 441 at 13-16; see Mt.

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Clemens 328 U.S. at 362; see also Monroe v FTS USA, 860 F.3d 389 (6th Cir. 2017).

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Plaintiffs’ Motion [Dkt. #446] to treat as a Sur-reply to Kellogg’s motion their own “Motion for the Court to
Calculate Damages based on Jury Verdict” [Dkt. #445] is GRANTED. The underlying Motion will be resolved in a
separate order.

ORDER DENYING MOTION TO DISMISS AND
DECERTIFY - 3

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Kellogg’s Motion to De-certify the collective action based on the lack of expert
testimony is DENIED.

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IT IS SO ORDERED.

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Dated this 17th day of October, 2017.

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A

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Ronald B. Leighton
United States District Judge

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ORDER DENYING MOTION TO DISMISS AND
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