1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Mario C ardoso, ) No. CV-18-04759-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Pick A Part LLC, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Plaintiff Mario Cardoso’s (the “Plaintiff”) Motion for 16 Conditional Certification (the “Motion”). (Doc. 14) The Motion was fully briefed on 17 March 27, 2019. (Docs. 18, 23) Because it would not assist in resolution of the instant 18 issues, the Court finds the pending motion is suitable for decision without oral argument. 19 See LRCiv. 7.2(f); Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 20 1998). The Court’s ruling is as follows. 21 I. Background 22 The Plaintiff worked as a “yard laborer” employee of Pick A Part, LLC. (Doc. 1 at 23 3) Pick A Part, LLC is owned by Rush Auto Recyclers, Inc. (together, the “Defendants”). 24 (Doc. 18 at 2) The Plaintiff alleges that he and other current and former employees were 25 not paid one-and-one-half times their regular rates of pay for overtime hours worked. 26 (Doc. 1 at 2) The Plaintiff filed a complaint (the “Complaint”) against the Defendants, 27 and other parties, alleging violations of the Fair Labor Standards Act (“FLSA”). (Doc. 1 at 28 1 2) The Plaintiff filed the Motion seeking conditional class certification. (Doc. 14) 2 II. Legal Standard 3 The FLSA prohibits covered employers from employing any employees “for a 4 workweek longer than forty hours unless such employee receives compensation for his 5 employment in excess of the hours above specified at a rate not less than one and one-half 6 times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1); Scales v. Info. 7 Strategy Design Inc., 356 F. Supp. 3d 881, 884–85 (D. Ariz. 2018). “Any employer who 8 violates the provisions of . . . section 207 . . . shall be liable to the employee or employees 9 affected in the amount of . . . their unpaid overtime compensation . . .”. 29 U.S.C. 10 § 216(b). A collective action to recover these damages may be brought “against any 11 employer . . . by any one or more employees for and in behalf of himself or themselves 12 and other employees similarly situated.” Id. Employees not named in the complaint who 13 wish to join the action must give their consent in writing to the court in which the action is 14 brought. Scales, 356 F. Supp. 3d 885. 15 “Section 216(b) does not define ‘similarly situated’, and the Ninth Circuit has not 16 construed the term.” Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010). 17 “[D]istrict courts within the Ninth Circuit generally follow the two-tiered or two-step 18 approach for making a collective action determination.” Id. Under this approach, 19 “the court determines, on an ad hoc case-by-case basis, whether plaintiffs are similarly situated. This requires the court 20 to first make an initial ‘notice stage’ determination of whether plaintiffs are similarly situated. At this first stage, the court 21 requires nothing more than substantial allegations that the putative class members were together the victims of a single 22 decision, policy, or plan. If a plaintiff can survive this hurdle, the district court will conditionally certify the proposed class 23 and the lawsuit will proceed to a period of notification, which will permit the potential class members to opt-into the lawsuit. 24 Once the notification period ends, the Court moves on to the second step of the certification process. At the second step, in 25 response to a motion to decertify the class filed by the defendant, the court makes yet another determination whether 26 the proposed class members are similarly situated; this time, however, the court utilizes a much stricter standard to 27 scrutinize the nature of the claims.” 28 1 Colson, 687 F. Supp. 2d at 925. 2 Conditional certification is not automatic, and a plaintiff must show that some 3 “identifiable factual or legal nexus binds together the various claims of the class members 4 in a way that hearing the claims together promotes judicial efficiency and comports with 5 the broad remedial policies underlying the FLSA.” Colson, 687 F. Supp. 2d at 925; 6 Wertheim v. Arizona, 1993 WL 603552, at 1 (D. Ariz. Sept. 30, 1993). The allegations 7 need not be “strong [n]or conclusive;” the plaintiff need only show “that there is some 8 factual nexus which binds the named plaintiffs and the potential class members together as 9 victims of a particular alleged policy or practice.” Id. at 926. “Plaintiffs need only show 10 that their positions are similar, not identical, to the positions held by the putative class 11 members.” Juvera v. Salcido, 294 F. R. D. 516, 520 (D. Ariz. 2013). In other words, 12 “[t]he court must only be satisfied that a reasonable basis exists for the plaintiffs’ claims 13 or class wide injury.” Bollinger v. Residential Capital, LLC, 761 F. Supp. 2d 1114, 1119 14 (W. D. Wash. 2011). 15 Whether a collective action should be conditionally certified ultimately is within 16 the discretion of the court. Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 17 2010). The court should not review the underlying merits of the action, nor should it 18 “resolve factual disputes . . . at the preliminary certification stage of an FLSA collective 19 action.” Id. at 926. “The court’s determination at this first step is based primarily on the 20 pleadings and any affidavits submitted by the parties.” Kesley v. Entm’t U.S.A. Inc., 67 F. 21 Supp. 3d 1061, 1065 (D. Ariz. 2014). 22 III. Analysis 23 A. Certification 24 The Plaintiff seeks conditional certification of a class of “all persons who have 25 worked or who are working as yard laborers for Defendants at any time during the three 26 years preceding” this lawsuit. (Doc. 14 at 1) The Defendants do not generally object to 27 the conditional class certification requested in the Motion. (Doc. 18 at 1) However, the 28 Defendants contest the scope of the conditional class certification proposed by the 1 Plaintiff. (Doc. 18 at 3–4) 2 1. Scope of the Conditional Class 3 The Plaintiff seeks to include former and current employees of Pick A Part, LLC 4 and Rush Auto Recyclers, Inc. in the proposed conditional class. (Doc. 14-2 at 2) The 5 Defendants state that Rush Auto Recyclers, Inc. owns Pick A Part, LLC, along with “Rush 6 Auto,” a used car dealership, and “Just Truck and Van,” a salvage yard. (Doc. 18 at 2) 7 The Defendants argue that the conditional class should not include Rush Auto Recyclers, 8 Inc.’s employees from Rush Auto and Just Truck and Van because the Plaintiff has failed 9 to provide sufficient information for conditional certification. (Doc. 18 at 4) 10 The Complaint states that this action is brought on behalf of “current and former 11 yard laborer employees.” (Doc. 1 at 1) The Complaint does not mention employees of 12 Rush Auto Recyclers, Inc.’s used car dealership. In the Plaintiff’s declaration in support 13 of the Motion, the Plaintiff specifically references his work in a “salvage yard” where he 14 worked with other “yard laborers” who performed substantially similar jobs. (Doc.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Mario C ardoso, ) No. CV-18-04759-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Pick A Part LLC, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Plaintiff Mario Cardoso’s (the “Plaintiff”) Motion for 16 Conditional Certification (the “Motion”). (Doc. 14) The Motion was fully briefed on 17 March 27, 2019. (Docs. 18, 23) Because it would not assist in resolution of the instant 18 issues, the Court finds the pending motion is suitable for decision without oral argument. 19 See LRCiv. 7.2(f); Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 20 1998). The Court’s ruling is as follows. 21 I. Background 22 The Plaintiff worked as a “yard laborer” employee of Pick A Part, LLC. (Doc. 1 at 23 3) Pick A Part, LLC is owned by Rush Auto Recyclers, Inc. (together, the “Defendants”). 24 (Doc. 18 at 2) The Plaintiff alleges that he and other current and former employees were 25 not paid one-and-one-half times their regular rates of pay for overtime hours worked. 26 (Doc. 1 at 2) The Plaintiff filed a complaint (the “Complaint”) against the Defendants, 27 and other parties, alleging violations of the Fair Labor Standards Act (“FLSA”). (Doc. 1 at 28 1 2) The Plaintiff filed the Motion seeking conditional class certification. (Doc. 14) 2 II. Legal Standard 3 The FLSA prohibits covered employers from employing any employees “for a 4 workweek longer than forty hours unless such employee receives compensation for his 5 employment in excess of the hours above specified at a rate not less than one and one-half 6 times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1); Scales v. Info. 7 Strategy Design Inc., 356 F. Supp. 3d 881, 884–85 (D. Ariz. 2018). “Any employer who 8 violates the provisions of . . . section 207 . . . shall be liable to the employee or employees 9 affected in the amount of . . . their unpaid overtime compensation . . .”. 29 U.S.C. 10 § 216(b). A collective action to recover these damages may be brought “against any 11 employer . . . by any one or more employees for and in behalf of himself or themselves 12 and other employees similarly situated.” Id. Employees not named in the complaint who 13 wish to join the action must give their consent in writing to the court in which the action is 14 brought. Scales, 356 F. Supp. 3d 885. 15 “Section 216(b) does not define ‘similarly situated’, and the Ninth Circuit has not 16 construed the term.” Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010). 17 “[D]istrict courts within the Ninth Circuit generally follow the two-tiered or two-step 18 approach for making a collective action determination.” Id. Under this approach, 19 “the court determines, on an ad hoc case-by-case basis, whether plaintiffs are similarly situated. This requires the court 20 to first make an initial ‘notice stage’ determination of whether plaintiffs are similarly situated. At this first stage, the court 21 requires nothing more than substantial allegations that the putative class members were together the victims of a single 22 decision, policy, or plan. If a plaintiff can survive this hurdle, the district court will conditionally certify the proposed class 23 and the lawsuit will proceed to a period of notification, which will permit the potential class members to opt-into the lawsuit. 24 Once the notification period ends, the Court moves on to the second step of the certification process. At the second step, in 25 response to a motion to decertify the class filed by the defendant, the court makes yet another determination whether 26 the proposed class members are similarly situated; this time, however, the court utilizes a much stricter standard to 27 scrutinize the nature of the claims.” 28 1 Colson, 687 F. Supp. 2d at 925. 2 Conditional certification is not automatic, and a plaintiff must show that some 3 “identifiable factual or legal nexus binds together the various claims of the class members 4 in a way that hearing the claims together promotes judicial efficiency and comports with 5 the broad remedial policies underlying the FLSA.” Colson, 687 F. Supp. 2d at 925; 6 Wertheim v. Arizona, 1993 WL 603552, at 1 (D. Ariz. Sept. 30, 1993). The allegations 7 need not be “strong [n]or conclusive;” the plaintiff need only show “that there is some 8 factual nexus which binds the named plaintiffs and the potential class members together as 9 victims of a particular alleged policy or practice.” Id. at 926. “Plaintiffs need only show 10 that their positions are similar, not identical, to the positions held by the putative class 11 members.” Juvera v. Salcido, 294 F. R. D. 516, 520 (D. Ariz. 2013). In other words, 12 “[t]he court must only be satisfied that a reasonable basis exists for the plaintiffs’ claims 13 or class wide injury.” Bollinger v. Residential Capital, LLC, 761 F. Supp. 2d 1114, 1119 14 (W. D. Wash. 2011). 15 Whether a collective action should be conditionally certified ultimately is within 16 the discretion of the court. Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 17 2010). The court should not review the underlying merits of the action, nor should it 18 “resolve factual disputes . . . at the preliminary certification stage of an FLSA collective 19 action.” Id. at 926. “The court’s determination at this first step is based primarily on the 20 pleadings and any affidavits submitted by the parties.” Kesley v. Entm’t U.S.A. Inc., 67 F. 21 Supp. 3d 1061, 1065 (D. Ariz. 2014). 22 III. Analysis 23 A. Certification 24 The Plaintiff seeks conditional certification of a class of “all persons who have 25 worked or who are working as yard laborers for Defendants at any time during the three 26 years preceding” this lawsuit. (Doc. 14 at 1) The Defendants do not generally object to 27 the conditional class certification requested in the Motion. (Doc. 18 at 1) However, the 28 Defendants contest the scope of the conditional class certification proposed by the 1 Plaintiff. (Doc. 18 at 3–4) 2 1. Scope of the Conditional Class 3 The Plaintiff seeks to include former and current employees of Pick A Part, LLC 4 and Rush Auto Recyclers, Inc. in the proposed conditional class. (Doc. 14-2 at 2) The 5 Defendants state that Rush Auto Recyclers, Inc. owns Pick A Part, LLC, along with “Rush 6 Auto,” a used car dealership, and “Just Truck and Van,” a salvage yard. (Doc. 18 at 2) 7 The Defendants argue that the conditional class should not include Rush Auto Recyclers, 8 Inc.’s employees from Rush Auto and Just Truck and Van because the Plaintiff has failed 9 to provide sufficient information for conditional certification. (Doc. 18 at 4) 10 The Complaint states that this action is brought on behalf of “current and former 11 yard laborer employees.” (Doc. 1 at 1) The Complaint does not mention employees of 12 Rush Auto Recyclers, Inc.’s used car dealership. In the Plaintiff’s declaration in support 13 of the Motion, the Plaintiff specifically references his work in a “salvage yard” where he 14 worked with other “yard laborers” who performed substantially similar jobs. (Doc. 14-1 at 15 2–3) The Court finds that the Plaintiff has set forth substantial allegations related to all 16 potential class members that worked for Pick A Part, LLC and any of Rush Auto 17 Recyclers, Inc.’s salvage yards, which would include former and current employees of 18 Just Truck and Van. Thus, the Plaintiff has set forth a reasonable basis for including 19 salvage yard employees of the named Defendants and Just Truck and Van in the 20 conditional class. However, the Court finds that the Plaintiff has failed to make any 21 substantial allegations against Rush Auto car dealership, as none of the allegations in the 22 Complaint nor the information in the Plaintiff’s declaration addresses Rush Auto. 23 Accordingly, the Court finds that current and former employees of Rush Auto Recyclers, 24 Inc. and Just Truck and Van are properly included as potential plaintiffs to this case, but 25 current and former employees of Rush Auto car dealership are not properly included as 26 potential plaintiffs. 27 2. Approval of Conditional Certification 28 The Defendants do not oppose the Plaintiff’s request for conditional certification in 1 the Motion. Thus, in light of the Court’s foregoing analysis, the Court finds that the 2 Plaintiff has set forth substantial facts to demonstrate that there is a factual nexus that 3 binds the Plaintiff to the current and former yard laborer employees of Pick A Part, LLC, 4 Just Truck and Van, and Rush Auto Recyclers, Inc. as victims of a specific, systematic 5 policy seeking to deprive them of overtime payments. Thus, the Motion will be granted 6 to conditionally certify this group as a class for the purposes of this lawsuit. 7 B. Approval of Notice 8 The Defendants also contest (i) the time period of employment for potential class 9 members described in the notice of collection action and lawsuit (the “Notice”); (ii) the 10 language used to describe the Plaintiff’s allegations in the Notice; and (iii) the amount of 11 personal information requested by the Plaintiff to provide notice to potential class 12 members. (Doc. 18 at 5–7) 13 1. Time 14 Through the Notice, the Plaintiff seeks to solicit class members that were current 15 and former employees of the Defendants for a time period beginning December 19, 2015, 16 through the present. (Doc. 14-2 at 3) The Defendants argue that the time period selected 17 by the Plaintiff is greater than the statute of limitations applicable to this action. (Doc. 18 18 at 5) Specifically, the Defendants argue that the earliest the Plaintiff or any class members 19 can seek relief is 3 years and 30 days prior to the day the Notice is issued. (Doc. 18 at 5) 20 In reply, the Plaintiff argues that statute of limitations defenses are not properly 21 considered when conditionally certifying a class. (Doc. 23 at 4–5) 22 In the only comparable case before the Court, Taylor v. Autozone, the Court found 23 that the appropriate time period for a similar situation was “ a period of three years before 24 conditional class certification.” Taylor v. Autozone, Inc., 2011 WL 2357652, at 1 (D. Ariz. 25 June 14, 2011). The Plaintiff cites cases supporting the premises that equitable tolling is 26 plausible if (i) the Defendant fails to post the Notice, or (ii) circumstances prevented the 27 Plaintiff or any class members from filing their claims on time. (Doc. 23 at 4–5) 28 However, none of the cases cited by the Plaintiff provide instruction on setting a notice 1 period in a FLSA case. Accordingly, the Court finds that it is appropriate to limit the 2 conditional class to former and current employees of Pick A Part, LLC, Rush Auto 3 Recyclers, Inc., and Just Truck and Van for the three years and 30 days preceding the 4 Court’s Order conditionally certifying the class. 5 2. “Allegations Language” 6 In response to the Motion, the Defendants seek to add language to the first 7 paragraph of the Notice stating, “The Court has taken no position regarding the merits of 8 the Plaintiff’s claims or Defendant’s defenses. The issuance of this Notice does not mean 9 that the Plaintiff has prevailed or will prevail on this matter.” (Doc. 18 at 6; Doc. 18-1 at 10 2) The Plaintiff does not oppose the Defendants’ request. (Doc. 23 at 5) Accordingly, the 11 aforementioned language shall be added to the first paragraph of the Notice. 12 3. Email & SSN 13 The Plaintiff requests an order requiring the Defendants to provide a list of 14 potential class members including their names, mailing addresses, email addresses, 15 employee identification numbers, and last four digits of their social security numbers. 16 (Doc. 14 at 11) The Defendants do not object to providing the names, mailing addresses 17 and last know mailing addresses for the potential class members. (Doc. 18 at 7) The 18 Defendants object to providing any portion of the social security numbers or employee 19 identification numbers for these parties. (Doc. 18 at 7) The Plaintiff fails to provide any 20 support for a court order requiring a party to disclose social security numbers or employee 21 identification number information. Therefore, the Court will only require the Defendants 22 to provide the names, mailing addresses, and e-mail addresses for any potential class 23 members. 24 // 25 // 26 // 27 // 28 // 1 Accordingly, 2 IT IS ORDERED that Plaintiff’s motion to conditionally certify a collective class 3 is GRANTED. The collective class of potential plaintiffs is conditionally certified under 4 29 U.S.C. § 216(b) and consists of all former and current employees of Pick A Part, LLC 5 and Rush Auto Recyclers, Inc., including Just Truck and Van, who, at any time between 6 July 22, 2016 and the date of this Order, worked as a yard laborer (or in other positions 7 with similar job titles or job duties) for Pick A Part, LLC and Rush Auto Recyclers, Inc., 8 including Just Truck and Van (the “Collective Members”); 9 IT IS FURTHER ORDERED that the Defendants must provide Plaintiff’s 10 counsel with the names, all known addresses, all known email addresses (work and 11 personal), and dates of employment for all Collective Members within five (5) days of this 12 Order; 13 IT IS FURTHER ORDERED that Plaintiff’s counsel shall mail a copy of the 14 “Notice of Collective Action” and “Consent Form”, reflecting the edits discussed in this 15 Order, via regular U.S. Mail and via electronic mail to all persons contained on the list 16 within seven (7) days of receiving the list from the Defendants. Plaintiff’s counsel may 17 hire a third-party class action administrative company to oversee the mailing of the Notice 18 of Collective Action and Consent Forms. Collective Members shall also be given the 19 option to execute their Consent Forms electronically online. In the body of the email 20 notice, Plaintiff’s counsel shall provide a link for electronic execution of the Consent 21 form. All consent forms shall be returned to Plaintiff’s counsel who in turn will be 22 responsible for filing them with the Court; and 23 IT IS FURTHER ORDERED that the Defendants shall post the Notice of 24 Collective Action and Consent Form in a conspicuous place at each of their businesses for 25 the full 60-day opt in time period. The Defendants shall also include the Notice of 26 Collective Action and Consent Form on the first regular payday after the Court’s Order 27 with all current yard laborers paystubs. The Collective Members shall have sixty (60) days 28 from the date of the mailing of the Notice and Consent Form to file their Notice of 1 | Consent opting-in to this lawsuit as plaintiffs, unless good cause can be shown as to why the consent was not postmarked prior to the deadline. Thirty (30) days before the deadline to opt in, Plaintiff's counsel shall send the Notice of Collective Action and Consent Form to those class members who have not yet joined the lawsuit in the same manner described above. 6 Dated this 21st day of August, 2019. 7 8 9
ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28