Ambrosia v. Cogent Communications, Inc.

312 F.R.D. 544, 2016 U.S. Dist. LEXIS 242, 2016 WL 31356
CourtDistrict Court, N.D. California
DecidedJanuary 4, 2016
DocketCase No. 14-cv-02182-RS
StatusPublished
Cited by3 cases

This text of 312 F.R.D. 544 (Ambrosia v. Cogent Communications, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ambrosia v. Cogent Communications, Inc., 312 F.R.D. 544, 2016 U.S. Dist. LEXIS 242, 2016 WL 31356 (N.D. Cal. 2016).

Opinion

ORDER GRANTING MOTION CONDITIONALLY TO CERTIFY COLLECTIVE ACTION, TO CERTIFY CLASS ACTION, AND GRANTING MOTION TO DISMISS CERTAIN INDIVIDUAL PLAINTIFFS

RICHARD SEEBORG, United States District Judge

I. INTRODUCTION

In this putative class and collective action, Plaintiff Joan Ambrosio,1 alongside a host of other salaried employees of defendant Cogent Communications, Inc. (“Cogent”), seeks damages and other relief based on Cogent’s alleged failure to pay overtime in violation of California and federal law. The putative class consists of all current and former California-based account managers who were classified as exempt and worked for Cogent between May 12, 2010 and the date of final judgment. Plaintiffs also move under section 216(b) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., conditionally to certify a collective action and to disseminate notice. Cogent opposes both motions and also moves to dismiss three plaintiffs on the ground they failed to appeal’ for their noticed depositions.

For the reasons that follow, the motion for conditional certification of the collective action is granted for the purpose of notification. Plaintiffs’ motion for class certification also is granted. The parties shall meet and confer regarding the contents of a joint notice, and on or before twenty-one (21) days from the date of this order, submit a proposal to the Court. Cogent’s motion to dismiss individual plaintiffs Jane LaCap, Tony Trinh, and Bill Chan is granted.

II. FACTUAL BACKGROUND

Defendant Cogent Communications, Inc. provides customers with internet access and data transport services through its various data centers. Cogent services over 170 major markets across North America, Europe, and Asia. Plaintiffs are salesman employed by Cogent as Regional Account Managers (“RAMs”), National Account Managers [549]*549(“NAMs”), or Global Account Managers (“GAMs”). RAMs are entry-level, NAMs are intermediate, and GAMs are senior-level sales employees.

The instant dispute centers on plaintiffs’ allegation that Cogent fails to pay overtime in violation of state and federal law. By way of background, a similar case was brought in December 2011 in the Southern District of Texas. See Lagos, et al. v. Cogent Communications, Inc., No. H-11-4523 (Filed Dec. 21, 2011). There, three former employees alleged Cogent failed to pay overtime in violation of the FLSA The Lagos court conditionally certified a nationwide class, but following discovery and an opt-in period, decertified the collective action.

Two months later, five additional suits were brought against Cogent alleging similar overtime violations on behalf of plaintiffs in California, Florida, the District of Columbia, Virginia, and New York.2 Plaintiffs in the instant matter assert the same FLSA claim for unpaid overtime as was set forth in Lagos and three additional claims under California state law: failure to pay overtime in violation of California Labor Code §§ 510, 1194; failure to pay wages due and owing in violation of California Labor Code §§ 200-203; and violation of the Unfair Competition Law (UCL), California Business & Professions Code, § 17200 et seq. Plaintiffs seek to represent a statewide class for their California claims comprised of “[a]ll persons who were, are, or will be employed by Cogent throughout California from May 12, 2010 through the date of final judgment as Regional Account Managers, National Account Managers or Global Account Managers and were classified by Cogent as exempt from overtime compensation.” Not. of Mot. for Class Cert, at 1:9— 13. Plaintiffs also propose an FLSA collective action on behalf of the California-based ae-count managers (“AMs”) employed by Cogent after May 12, 2011.

III. DISCUSSION3

A. Motion Conditionally to Certify Collective Action

1. Legal Standard

The FLSA provides employees with a private right of action to enforce the minimum wage and overtime provisions of the Act. See 29 U.S.C. § 216(b). Named plaintiffs may bring an action, not just on their own behalf, but also for “other employees similarly situated.” Id. Employees seeking to join the suit as part of a collective action must consent in a writing filed with the court. See id.; Hill v. R+L Carriers, Inc., 690 F.Supp.2d 1001, 1008 (N.D.Cal.2010) (explaining that, unlike class actions brought under Federal Rule of Civil Procedure 23, FLSA collective actions require individual members to “opt-in”).

Determining whether a suit properly may be maintained as a FLSA collective action is within the discretion of the court. See Leuthold v. Destination Am., 224 F.R.D. 462, 466 (N.D.Cal.2004). Courts in this District have applied a two-step approach to determine whether the putative class is “similarly situated.” See, e.g., id. at 467; Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1127 (N.D.Cal.2009). In the first step, the court makes an initial determination whether conditionally to certify the class for purposes of providing notice of the pending suit to potential members. See Leuthold, 224 F.R.D. at 467. In the second step, usually after the close of discovery, the defendant may move for decertification. Id. Based on greater factual evidence, the court at this stage generally applies a more “stringent” analysis. Id.

[550]*550Plaintiffs bear the burden of demonstrating that members of the proposed class are similarly situated. Id. at 466. At the notice stage, however, the standard for certification is “a lenient one that typically results in certification.” Hill, 690 F.Supp.2d at 1009 (citation omitted). Courts primarily make this initial determination based on pleadings and affidavits and may grant conditional certifiear tion on “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Newton v. Schwarzenegger, No. C 09-5887 VRW, 2010 WL 2280532, at *3 (N.D.Cal. June 7, 2010) (internal quotation marks and citation omitted). Plaintiffs are required to show only that they are in a “similar” position as other class members, not an identical one, with respect to their FLSA claim. See Morton v. Valley Farm Transp., Inc., 2007 WL 1113999, at *2, 2007 U.S. Dist. LEXIS 31755, at *6 (N.D.Cal. Apr. 13, 2007).

2. Conditional Certification

The proposed FLSA class consists of “[a]ll persons who were, are, or will be employed by Cogent throughout California from May 12, 2011 to the end of the opt-in period as Regional Account Managers, National Account Managers or Global Account Managers and were classified by Cogent as exempt from overtime compensation.” Mot. to Fac. Collective Action at 2:14-18.

As a preliminary matter, Cogent urges the application of a more stringent standard for determining whether members of the proposed class are similarly situated.

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312 F.R.D. 544, 2016 U.S. Dist. LEXIS 242, 2016 WL 31356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ambrosia-v-cogent-communications-inc-cand-2016.