1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Rachael Gilburd, et al., No. CV-23-00010-PHX-DLR
10 Plaintiffs, ORDER
11 v.
12 Rocket Mortgage LLC,
13 Defendant. 14 15 16 This is a collective action arising out of the Fair Labor Standards Act (“FLSA”), 29 17 U.S.C. §§ 201 et seq. Plaintiffs Rachael Gilburd, Andrew Gebhart, Daniel Featherstone, 18 Derek Martin, Angela McGuire, Kori Morin, Katherine Redas, Erin Salava, David Vallejo, 19 and Nick Vincent (collectively “Plaintiffs”), on behalf of themselves all other persons 20 similarly situated, accuse Defendant Rocket Mortgage, LLC of failing to pay overtime 21 wages pursuant to § 207 of the FLSA. Pending before the Court are three motions, which 22 the Court will take together: (1) Defendant’s motion for judgment on the pleadings under 23 Federal Rule of Evidence 12(c); (2) Defendant’s motion to dismiss under Federal Rule of 24 Evidence 12(b)(2) or transfer venue under 28 U.S.C. § 1631 or § 1404; and (3) Plaintiffs’ 25 motion for conditional class certification under 29 U.S.C. § 216(b).1 The motions are all 26 fully briefed. (See Docs. 30, 38, 47, 52, 53, 54, 56, 59, 61.) For the following reasons, the 27 1 Defendant’s request for oral argument is denied because the issues are adequately 28 briefed, and oral argument will not assist the Court in reaching its decision. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). 1 Court denies Defendant’s motion for judgment on the pleadings under Rule 12(c), denies 2 Defendant’s motion to dismiss under Rule 12(b)(2) or transfer venue, and grants in part 3 Plaintiffs’ motion for conditional class certification. 4 I. BACKGROUND 5 A. Fair Labor Standards Act 6 Congress enacted the FLSA “to protect all covered workers from substandard wages 7 and oppressive working hours.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 8 728, 739 (1981). The FLSA requires employers, in part, to pay non-exempt workers at one 9 and a half times the regular rate for any time worked in excess of forty hours in a single 10 week. 29 U.S.C. § 207; Alonzo v. Akal Sec., Inc., No. CV-17-00836-PHX-JJT, 2017 WL 11 5598227, at *1 (D. Ariz. Nov. 21, 2017). Workers can jointly sue their employer for unpaid 12 overtime compensation through a “collective action.” 29 U.S.C. § 216(b). “The collective 13 action allows a representative plaintiff to bring suit on behalf of workers who are ‘similarly 14 situated’, and thereby serves to (1) reduce the burden on plaintiffs through the pooling of 15 resources, and (2) make efficient use of judicial resources by resolving common issues of 16 law and fact together.” 29 U.S.C. § 216(b); Alonzo, 2017 WL 5598227, at *1 (internal 17 citation omitted). 18 B. Factual and Procedural Background 19 On February 10, 2023, Plaintiffs, on behalf of themselves and all other similarly 20 situated individuals, filed their First Amended Complaint (“FAC”) alleging that Defendant 21 willfully failed to pay all owed overtime wages in accordance with 29 U.S.C. § 207. 22 According to the FAC, Defendant is a mortgage company that is incorporated and 23 maintains a principal place of business in Michigan but operates nationwide. (Doc. 26 24 ¶ 25.) Plaintiffs are former licensed mortgage loan officers employed by Defendant within 25 the last three years.2 (Id. ¶¶ 1, 11, 26–38) Plaintiffs’ primary job duties were the origination 26 of residential mortgages. (Id. ¶ 38.) Plaintiffs allege that they routinely worked in excess 27 2 From approximately April 2020 through July 2021, Plaintiffs were employed by 28 Defendant under the business name, Quicken Loans, LLC. In July 2021, Quicken Loans changed its named to Rocket Mortgage, LLC. (Doc. 26 ¶ 26.) 1 of forty hours per week, but that Defendant failed to compensate Plaintiffs for all overtime 2 hours worked, improperly calculated Plaintiffs’ overtime pay, and failed to pay Plaintiffs 3 overtime at a rate of one and a half times Plaintiffs’ regular rate of pay. (Id. ¶¶ 67–72.) 4 Plaintiffs propose a collective class for their FLSA claim as follows: 5 All persons who work[ed] for Defendant Rocket Mortgage, LLC or its predecessor entities Quicken Loans, LLC and 6 Quicken Loans, Inc.; who work[ed] over [forty] hours in any given workweek as a past or present mortgage banker or 7 similar title, or who performed the job duties of working with borrowers through loan processing (the “Collective 8 Members”). 9 (Id. ¶ 80.) Since Plaintiffs’ filing of their FAC, more than ninety individuals have filed opt- 10 in consent forms. (See e.g., Docs. 10–19, 22–25, 27–29, 33–37.) 11 Three motions are pending before this Court. First, Defendant has filed a motion for 12 judgment on the pleadings under Federal Rule of Evidence 12(c). Defendant has also filed 13 a motion to dismiss under Federal Rule of Evidence 12(b)(2) or transfer venue under either 14 28 U.S.C. § 1631 or 28 U.S.C. § 1404(a). And last, Plaintiffs have filed a motion for 15 conditional class certification. The Court addresses each motion in turn. 16 II. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS 17 A. Legal Standard 18 A motion for judgment on the pleadings pursuant to Rule 12(c) is reviewed under 19 the same standard applicable to a Rule 12(b)(6) motion to dismiss for failure to state a 20 claim. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). In ruling on a Rule 12(c) 21 motion, the Court must “accept all material allegations in the complaint as true and construe 22 them in the light most favorable to the [non-moving party].” Turner v. Cook, 362 F.3d 23 1219, 1225 (9th Cir. 2004). The Court must then consider whether the well-pleaded factual 24 allegations, taken as true, plausibly entitle Plaintiffs to relief. Ashcroft v. Iqbal, 556 U.S. 25 662, 679 (2009). “A claim for relief is plausible ‘when the plaintiff pleads factual content 26 that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.’” Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 641 (9th Cir. 28 2014) (citing Iqbal, 556 U.S. at 678). However, “where a complaint pleads facts that are 1 merely consistent with a defendant’s liability, it stops short of the line between possibility 2 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 67. In such a situation, “the 3 complaint should be dismissed, or judgment granted on the pleadings.” Strigliabotti v. 4 Franklin Res., Inc., 398 F. Supp. 2d 1094, 1097 (N.D. Cal. 2005). 5 B. Analysis 6 Defendant argues that it is entitled to judgment as a matter of law because Plaintiffs’ 7 FAC (Doc. 26) lacks sufficient factual allegations of Defendant’s FLSA overtime 8 violations since Plaintiffs fail to allege a “single workweek [in which] they worked more 9 than [forty] hours but were not paid overtime.” (Doc. 53 at 8.) The Court disagrees and 10 finds that Plaintiffs have fulfilled their Rule 8 pleading obligations. 11 Relying on the Ninth Circuit’s holding in Landers v. Quality Communications, Inc., 12 Defendant argues that to bring a plausible FLSA claim for unpaid overtime wages, 13 Plaintiffs must allege that they “worked more than forty hours in a given workweek without 14 being compensated for the overtime hours worked during that workweek.” 771 F.3d at 15 644–45 (emphasis added). Not so. As the Ninth Circuit explains in Landers, 16 [T]he plausibility of a claim is “context-specific.” A plaintiff may establish a plausible claim by estimating the length of her 17 average workweek during the applicable period and the average rate at which she was paid, the amount of overtime 18 wages she believes she is owed, or any other facts that will permit the court to find plausibility. . . . [W]e decline to make 19 the approximation of overtime hours the sine qua non of plausibility for claims brought under the FLSA. After all, most 20 (if not all) of the detailed information concerning a plaintiff- employee’s compensation and schedule is in control of the 21 defendants. 22 Id. (internal citation omitted) (emphasis added). The Court is not persuaded that, as an 23 inflexible rule, Plaintiffs must identify an exact calendar week of unpaid overtime to plead 24 a plausible claim under the FLSA. See Varsam v. Lab’y Corp. of Am., 120 F. Supp. 3d 25 1173, 1178 (S.D. Cal. 2015) (“Other courts have agreed that plaintiffs need not plead 26 particular instances of unpaid overtime before being allowed to proceed to discovery.”); 27 see also Turner v. LTF Club Mgmt. Co., LLC, No. 2:20-cv-00046-KJM-JDP, 2022 WL 28 1018498, at *3 (E.D. Cal. Apr. 5, 2022) (“[T]here is no indication the Landers court sought 1 to create a ’heightened pleading standard’ for FLSA claims.”). Indeed, the year after 2 deciding Landers, the Ninth Circuit found in Boon v. Canon Business Solutions, Inc., that 3 allegations that “identified tasks for which [plaintiff] was not paid and . . . that [plaintiff] 4 regularly worked more than eight hours in a day and forty hours in a week” were sufficient 5 to state an overtime claim. 592 Fed. App’x 631, 632 (9th Cir. Feb. 18, 2015). To satisfy 6 federal pleading standards, plaintiffs only need to allege sufficient facts to give rise to a 7 plausible inference of a FLSA violation. See Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 8 1008 (N.D. Cal. 2016). Plaintiffs have done so here. 9 Like the plaintiffs in Boon, Plaintiffs in this case identified tasks for which they 10 were not paid. Plaintiffs alleged that they were “required to be on call 24/7, seven days a 11 week” and that they were instructed by their supervisors, managers, and directors “to 12 promptly respond to emails and telephone calls on weeknights and weekends.” (Doc. 26 13 ¶¶ 63–67.) If Plaintiffs failed to promptly respond to those emails or calls after normal 14 work hours during the week and on weekends, Plaintiffs could be subjected to discipline 15 and termination. (Id. ¶ 65.) Defendant’s management instructed Plaintiffs to refrain from 16 engaging in activities that would prevent them from being able to promptly respond to 17 emails and calls on weeknights and weekends. (Id. ¶ 66.) Plaintiffs further allege they 18 routinely worked more than forty hours per week. (Id. ¶ 44.) Although “Defendant was 19 aware that Plaintiffs were responding to emails and taking telephone calls on weeknights 20 and weekends,” Plaintiffs went uncompensated for that time spent working. (Id. ¶ 44, 65– 21 67.) Additionally, Plaintiffs allege that in 2020 and 2021, they were paid a so-called “Salary 22 Adjust” for some overtime hours worked, but the hourly rate at which Plaintiffs were paid 23 “Salary Adjust” was less than the hourly rate for their non-overtime hours. (Id. ¶¶ 50–51.) 24 These are all examples of factual allegations that meet the Rule 8 threshold and allow the 25 Court to draw a reasonable inference that Plaintiffs’ FLSA overtime claims are plausible. 26 Defendant goes on to argue that it is entitled to judgment on the question of 27 willfulness—that Plaintiffs fail to plead sufficient factual allegations supporting their claim 28 that Defendant acted willfully in denying them overtime pay. (Doc. 53. at 15–16.) Again, 1 the Court disagrees. “At the pleading stage, a plaintiff need not allege willfulness with 2 specificity.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 903 (9th Cir. 2013). Federal 3 Rule of Civil Procedure 9(b) provides that “[m]alice, intent, knowledge, and other 4 conditions of a person’s mind may be alleged generally.” Here, Plaintiffs alleged 5 “Defendant intentionally failed and/or refused to pay Plaintiffs and the Collective Members 6 all owed overtime” and that “Defendant knew that—or acted with reckless disregard as to 7 whether—their refusal or failure to properly compensate Plaintiffs and the Collective 8 Members over the course of their employment would violate federal law, and Defendant 9 was aware of the FLSA overtime requirement.” Plaintiffs have sufficiently alleged 10 willfulness. See e.g., Villapando v. Banamex USA Bancorp, No. LA CV19-05149 JAK, 11 2020 WL 1942783, at *3–4, (C.D. Cal. Apr. 21, 2020) (finding allegation that defendants 12 knew federal law required overtime pay and that defendants knowingly, willfully, or in 13 reckless disregard carried out their illegal practice to be sufficient to state a claim for willful 14 FLSA violations); Pellegrini v. Huyssen, Inc., No. 3:17-cv-00135-CAB, 2017 WL 15 2908794, at *9 (S.D. Cal. July 7, 2017). Accordingly, the Court denies Defendant’s motion 16 for judgment on the pleadings. 17 III. DEFENDANT’S MOTION TO DISMISS UNDER RULE 12(B)(2) OR 18 TRANSFER VENUE 19 Defendant moves to dismiss the claims of non-Arizona class members3 and putative 20 class members for lack of personal jurisdiction pursuant to Rule 12(b)(2). In the alternative, 21 Defendant requests the case be transferred to the Eastern District of Michigan either under 22 28 U.S.C. § 1631 or 28 U.S.C. § 1404(a). And last, if the Court declines to either dismiss 23 or transfer, Defendant requests the Court certify the jurisdictional question to the Ninth 24 Circuit under 28 U.S.C. § 1292. For the following reasons, the Court denies Defendant’s 25 motion. 26
27 3 As of February 27, 2023, fifty-nine individuals had filed consent to join Plaintiffs’ collective class in this action. (Doc. 30-1 at 4.) Of these individuals, at least ten of them 28 worked for Defendant outside of Arizona. (Id. at 5.) Defendant asserts that only 17.4% of mortgage bankers employed by Defendant are employed in Arizona. (Id. at 4.) 1 A. Rule 12(b)(2) Dismissal 2 Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss 3 claims against it for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Plaintiffs bear 4 the burden of establishing the Court’s personal jurisdiction over Defendant. See Ziegler v. 5 Indian River Cnty., 64 F.3d 470, 473 (9th Cir. 1995). In resolving a Rule 12(b)(2) motion, 6 the Court may consider evidence outside the pleadings, including affidavits and other 7 materials submitted on the motion. Daimler AG v. Bauman, 571 U.S. 117, 123 (2014). 8 “Where, as here, a defendant’s motion to dismiss is based on a written record and no 9 evidentiary hearing is held, the plaintiff need only make a prima facie showing of 10 jurisdictional facts.” Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 11 1977). 12 “Federal courts ordinarily follow state law in determining the bounds of their 13 jurisdiction over persons.” Daimler, 571 U.S. at 125. Arizona’s long-arm statute allows 14 Arizona courts to exercise personal jurisdiction to the maximum extent permitted under the 15 Due Process Clause of the United States Constitution. Ariz. R. Civ. P. 4.2(a). Due process 16 requires that Defendant “have certain minimum contacts” with the forum state, here 17 Arizona, “such that the maintenance of the suit does not offend traditional notions of fair 18 play and substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (internal 19 quotations and citation omitted). “Depending on the strength of those contacts, there are 20 two forms that personal jurisdiction may take: general and specific.” Picot v. Weston, 780 21 F.3d 1206, 1211 (9th Cir. 2015). 22 As an initial matter, the Court finds that it lacks general jurisdiction over Defendant. 23 General jurisdiction requires “affiliations so continuous and systematic as to render the 24 foreign corporation essentially at home” in the forum state. Daimler, 571 U.S. at 13 n.11. 25 “Only in an ‘exceptional case’ will general jurisdiction be available” somewhere other than 26 a defendant-corporation’s “place of incorporation and principal place of business.” 27 Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014). A court with general 28 jurisdiction over a defendant “may hear any claim against that defendant, even if all 1 incidents underlying the claim occurred in a different [s]tate.” Bristol-Myers Squibb Co. v. 2 Superior Ct. of California, 582 U.S. 255, 262 (2017). Here, Defendant is incorporated and 3 has a principal place of business in Michigan. (Doc. 30-1 at 2.) Plaintiffs fail to make any 4 showing that this is an exceptional case permitting general personal jurisdiction over 5 Defendant. Although Defendant engages in business in Arizona, there is no evidence 6 before this Court that Defendant’s affiliations with the state are so continuous and 7 systematic as to render it at home. 8 The Court does, however, have specific personal jurisdiction over Defendant. For a 9 court to have specific jurisdiction, “the suit must arise out of or relate to the defendant’s 10 contacts with the forum.” Bristol-Myers, 582 U.S. at 262 (cleaned up). Defendant does not 11 dispute the Court’s specific personal jurisdiction over it with respect to the claims of any 12 Arizona Plaintiffs and class members. Rather, Defendant contends that jurisdiction is 13 lacking with respect to the claims of any non-Arizona employee class members, relying on 14 the Supreme Court’s holding in Bristol-Myers. Id. at 265. There, in applying the Fourth 15 Amendment Due Process Clause to a mass-tort action, the Supreme Court held that 16 California courts lacked personal jurisdiction over the defendant—incorporated and 17 headquartered outside of California—with respect to claims by non-California plaintiffs. 18 Id. The Court reasoned that there was no link between the non-residents’ tort claims and 19 California since the non-residents neither acquired the defendant’s drug, ingested the drug, 20 nor were injured by the drug in California. Id. Extending Bristol-Myers to this case, 21 Defendant contends that the claims of non-Arizona class members—both putative and 22 those that have consented—are claims that stem from Defendant’s non-Arizona activities 23 since these class members neither worked nor were allegedly injured in Arizona. (Doc. 30 24 at 11.) 25 In the years since Bristol-Myers, however, district and circuit courts have split on 26 whether Bristol-Myers applies to FLSA collective action claims. Gillespie v. Cracker 27 Barrel Old Country Store Inc., No. CV-21-00940-PHX-DJH, 2023 WL 2734459, at *12 28 (D. Ariz. Mar. 31, 2023). At present, the Ninth Circuit has not addressed the issue. 1 Although some district courts within the Ninth Circuit have dismissed FLSA claims of 2 employees who cannot establish a connection between their claims and the forum,4 most 3 have rejected applying Bristol-Myers to collective actions arising under the FLSA. See 4 Gillespie, 2023 WL 2734459, at *12 n.3 (“[F]our Ninth Circuit district courts have applied 5 Bristol-Myers to FLSA collective actions while at least seven have held the opposite.”). 6 The courts, including this one, that decline to apply Bristol-Myers to FLSA cases reason 7 that unlike in Bristol-Myers, which involved a products liability claim, FLSA claims 8 involve a “federal claim specifically created by Congress to address employment practices 9 nationwide” and that applying Bristol-Myers to such claims would thwart congressional 10 intent. See Cooley v. Air Methods Corp., No. CV-19-00850-PHX-DLR, 2020 WL 11 9311858, at *3 (D. Ariz. Sept. 25, 2020); Swamy v. Title Source, Inc., No. C 17-01175 12 WHA, 2017 WL 5196780, at *2 (N.D. Cal. Nov. 10, 2017) (holding that applying Bristol- 13 Myers to FLSA claims “would splinter most nationwide collective actions” and “greatly 14 diminish the efficacy of FLSA collective actions as a means to vindicate employees’ 15 rights”). Following the majority of district courts within this Circuit, the Court finds that 16 Bristol-Myers does not divest it of personal jurisdiction in FLSA collective actions. 17 Because Defendant is subject to personal jurisdiction in Arizona for the claims brought by 18 the nine named Arizona Plaintiffs, personal jurisdiction is satisfied. Accordingly, the Court 19 denies Defendant’s motion to dismiss Plaintiffs’ claims brought on behalf of non-Arizona 20 class members. 21 B. Transfer under 28 U.S.C. § 1631 or § 1404 22 In the alternative, Defendant requests the case be transferred to the Eastern District 23 of Michigan under either 28 U.S.C. § 1631 or §1404(a). A court may transfer a case under 24 § 1631 “to cure want of jurisdiction.” As discussed above, the Court finds that personal 25 jurisdiction is not lacking. Accordingly, a § 1631 transfer is inappropriate. Section 1404(a), 26 4 See e.g., Wilkerson v. Walgreens Specialty Pharmacy LLC, 637 F. Supp. 3d 718, 27 725–31 (D. Ariz. 2022) (holding that the court lacks specific jurisdiction over non-resident opt-in class members’ FLSA claims unrelated to defendants’ alleged conduct in the forum); 28 Kurtz v. Regional Care Hosp. Partners, Inc., No. 4:19-CV-5049-RMP, 2021 WL 6246619, at *6 (E.D. Wash. Sept. 9, 2021). 1 however, provides that a court may transfer a case to any other district where it might have 2 been brought for the “convenience of the parties and witnesses, in the interest of justice.” 3 The parties to do not dispute that this case could have been brought in the Eastern District 4 of Michigan, where Defendant is incorporated and has a principal place of business. As 5 such, the Court must determine whether transfer is warranted for the convenience of the 6 parties and witnesses and in the interest of justice. 7 The Court has discretion in granting § 1404(a) transfers and may do so on an 8 “individualized, case-by-case consideration.” Jones v. GNC Franchising, Inc., 211 F.3d 9 495, 498 (9th Cir. 2000). The Ninth Circuit has provided a non-exhaustive list of factors a 10 court may consider when adjudicating motions for transfer, including: 11 (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the 12 governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts 13 relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, 14 (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease 15 of access to sources of proof. 16 Id. at 499. The Defendant bears the burden of showing that a transfer is warranted. 17 Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). 18 After carefully considering the relevant factors, the Court finds that Defendant has 19 not met its burden. Defendant asserts that Michigan is the more convenient place for the 20 action to proceed because that is where Defendant is headquartered, where most potential 21 plaintiffs reside,5 and where most of the documents and witnesses with information about 22 Defendant’s employment practices will be found. (Doc. 30 at 14–15.) First, the Court does 23 not find the location of most of Defendant’s current workforce to be persuasive given that 24 nine of the ten named Plaintiffs are Arizona residents and a considerable proportion of 25 individuals who have filed consent in this case worked for Defendant in Arizona.6 26 5 In its brief, Defendant asserts that “about 68% of [its] workforce is in Michigan,” 27 citing to an affidavit by Austin Niemiec, Defendant’s Chief Revenue Office. (Doc. 30 at 14; Doc 31-1.) 28 6 According to Niemiec’s affidavit, at least twenty-eight of the fifty-nine individuals who had filed consent as of February 27, 2023, worked for Defendant in Arizona. (Doc. 1 Moreover, a plaintiff’s choice of forum is ordinarily granted great weight and “will almost 2 always weigh against a transfer of venue.” See Fed. Savings Bank v. Wesco Insurance Co., 3 No. CV-21-01857-PHX-DLR, 2022 WL 4612548, at *2 (D. Ariz. Sept. 30, 2022). Second, 4 the fact that Michigan is a more convenient place for Defendant to litigate because its 5 documents and witnesses—whom Defendant does not identify with any specificity—are 6 located there is not sufficient to justify transfer when a transfer would merely shift the 7 inconvenience from Defendant to Plaintiffs. Decker Coal Co. v. Commonwealth Edison 8 Co., 805 F.2d 834, 843 (9th Cir. 1986) (holding that transfer is inappropriate under 9 § 1404(a) if it “would merely shift rather than eliminate the inconvenience”); Hawkins v. 10 Gerber Prod. Co., 924 F. Supp. 2d 1208, 1215–16 (S.D. Cal. 2013 ) (weighing the 11 “convenience of witnesses” factor as neutral because defendants failed to identify any 12 potential witnesses by name or describe their testimony). 13 The Court acknowledges that it is more burdensome for Defendant to litigate in 14 Arizona than in Michigan. Nevertheless, “with the advances in transportation and 15 telecommunications and the increasing interstate practice of law, any burden is 16 substantially less than in days past.” CE Distribution, LLC v. New Sensor Corp., 380 F.3d 17 1107, 1112 (9th Cir. 2004). Furthermore, “given the growth of electronic communication 18 and document production, discovery costs should be about the same in either forum.” 19 OptoLum, Inc. v. Cree, Inc., 244 F. Supp. 3d 1005, 1009 (D. Ariz. 2017). The Court finds 20 that Defendant has not met its burden and that transfer under § 1404(a) is not warranted. 21 Defendant’s motion is denied. 22 C. Interlocutory Appeal under 28 U.S.C. § 1292(b) 23 As a final resort, Defendant requests that the Court certify the jurisdictional question 24 to the Ninth Circuit under 28 U.S.C. § 1292(b). The Ninth Circuit has noted that “§ 1292(b) 25 is to be applied sparingly and only in exceptional cases.” United States v. Woodbury, 263 26 F.2d 784, 788 n.11 (9th Cir. 1959). Specifically, certification under § 1292 is intended to 27 be used only in those few situations “in which allowing an interlocutory appeal would 28 31-1 at 4.) 1 avoid protracted and expensive litigation.” Villarreal v. Caremark LLC, 85 F. Supp. 3d 2 1063, 1067 (D. Ariz. 2015). The decision to certify “is committed to the sound discretion 3 of the district court.” Id. at 1068. The party seeking certification has the burden of showing 4 that exceptional circumstances justify departing from the “basic policy of postponing 5 appellate review until after the entry of a final judgment.” Id. at 1067. Defendant fails to 6 meet this burden. Notably, Defendant requests § 1292(b) certification for the first time in 7 the last few lines of its reply brief. (Doc. 54 at 9.) Defendant does not present any arguments 8 on how an interlocutory appeal could speedily terminate the litigation. Indeed, it is clear 9 that even if the Court were to certify the jurisdictional issue as to the claims of non-Arizona 10 class members, Defendant would still be subject to the Arizona Plaintiffs’ claims. The 11 Court finds that certification would not materially advance the termination of this litigation, 12 but merely delay its progress. The Court denies Defendant’s request to certify the 13 jurisdictional question under 28 U.S.C. § 1292(b). 14 IV. PLAINTIFFS’ MOTION FOR CONDITIONAL CLASS 15 CERTIFICATION 16 Pursuant to § 216(b) of the FLSA, Plaintiffs move to conditionally certify the 17 following putative class: 18 All persons who work[ed] for Defendant Rocket Mortgage, LLC or its predecessor entities Quicken Loans, LLC and 19 Quicken Loans, Inc.; who work[ed] over [forty] hours in any given workweek as a past or present mortgage banker or 20 similar title, or who performed the job duties of working with borrowers through loan processing. 21 22 (Doc. 26 ¶ 80.) Additionally, Plaintiffs submit to the Court for approval: a proposed judicial 23 notice; a plan for notifying putative class members of their right to opt-in; a time period for 24 putative class members to opt-in; and a plan for Defendant’s disclosure of names and 25 contact information for putative class members. For the reasons explained below, the Court 26 grants, in part, Plaintiffs’ motion for conditional class certification. 27 A. “Similarly Situated” Class 28 Plaintiffs filed their FAC “on behalf of themselves and all other similarly situated 1 individuals pursuant to 29 U.S.C. § 216(b).” (Doc. 26 ¶ 79.) Section 216(b) provides that 2 a collective action to recover damages for an employer’s violation of the FLSA may be 3 brought “by any one or more employees for and in behalf of himself or themselves and 4 other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis added). The FLSA does 5 not define “similarly situated,” so the Ninth Circuit employs a two-step approach to 6 collective action certification: preliminary certification and decertification. Campbell v. 7 City of Los Angeles, 903 F.3d 1090, 1100 (9th Cir. 2018). At the preliminary certification 8 step, the Court determines whether the defined collective is “similarly situated.” 9 At this first stage, the [C]ourt requires nothing more than substantial allegations that the putative class members were 10 together the victims of a single decision, policy, or plan. If a plaintiff can survive this hurdle, the district court will 11 conditionally certify the proposed class and the lawsuit will proceed to a period of notification, which will permit the 12 potential class members to opt-into the lawsuit. Once the notification period ends, the Court moves on to the second step 13 of the certification process. At the second step, in response to a motion to decertify the class filed by the defendant, the court 14 makes yet another determination whether the proposed class members are similarly situated; this time, however, the court 15 utilizes a much stricter standard to scrutinize the nature of the claims. 16 17 Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010) (cleaned up). Plaintiffs’ 18 burden at the preliminary certification stage is “light.” Id. Plaintiffs’ allegations need not 19 be strong nor conclusive. Id. at 926. Rather, Plaintiffs merely need to show “that some 20 identifiable factual or legal nexus binds together the various claims of the class members 21 in a way that hearing the claims together promotes judicial efficiency and comports with 22 the broad remedial policies underlying the FLSA.” Wertheim v. Arizona, No. CIV 92-453- 23 PHX-RCB, 1993 WL 603552, at *1 (D. Ariz. Sept. 30, 1993). Further, Plaintiffs need only 24 show that their positions are similar, not identical, to the putative class members. Scales v. 25 Info. Strategy Design Inc., 356 F. Supp. 3d 881, 885 (D. Ariz. 2018). “In order words, the 26 [C]ourt must only be satisfied that a reasonable basis exists for the [P]laintiffs’ claims or 27 class wide injury.” Id. at 885–86 (internal quotation and citation omitted). Given this 28 1 lenient standard, “motions to conditionally certify a class for notification purposes are 2 typically granted.” Colson, 687 F. Supp. 2d at 925. 3 “Determining whether a collective action is appropriate is within the discretion of 4 the district court.” Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). 5 “The [C]ourt’s determination at this first step is based primarily on the pleadings and any 6 affidavits submitted by the parties.” Kesley v. Ent. U.S.A. Inc., 67 F. Supp. 3d 1061, 1065 7 (D. Ariz. 2014) (internal quotations omitted). “Courts recognize that collective action 8 notification normally occurs before the Parties have had a chance to engage in extensive 9 fact discovery,” which is why courts, in reviewing a motion to conditionally certify, should 10 neither review the underlying merits of the action nor resolve factual disputes. Colson, 687 11 F. Supp. 2d at 926. 12 Applying this lenient standard to the case at bar, the Court finds that conditional 13 certification is appropriate here. Plaintiffs provide eighteen declarations of opted-in class 14 members. (See Doc. 38-1.) These declarations, combined with Plaintiffs’ pleadings, reflect 15 that the ten named Plaintiffs and members of the putative class: (1) are or were all employed 16 by Defendant or its predecessors as a “mortgage loan banker,” or a similar title, with the 17 primary duty of originating mortgage loans; (2) all regularly and consistently worked more 18 than forty hours in a given work week without proper overtime pay; and (3) all were paid 19 under a scheme in which on any given pay stub the line items were labeled as Salary, 20 Overtime, Salary Adjust, Salary Adjust OT, and Retro OT. (Doc. 26; Doc. 38-1.) The 21 declarations also reflect that the class members were compensated in the same manner and 22 that they never received documentation from Defendant clearly explaining how line items 23 on their pay stubs were calculated. (Id.) Plaintiffs’ pleadings and declarations contain 24 sufficient allegations supporting their contention that all mortgage bankers currently or 25 previously employed by Defendant were subject to a uniform policy or plan that involved 26 uncompensated overtime work. See e.g., Leuthold, 224 F.R.D. at 468 (granting conditional 27 certification where plaintiffs submitted affidavits describing the same job duties, asserting 28 that they worked more than forty hours per week without overtime pay, and claiming that 1 their experiences were common to the whole class); Fernandez v. Bank of Am., N.A., No. 2 CV 17-6104-MWF, 2019 WL 3059150, at *3 (C.D. Cal. Mar. 8, 2019) (granting 3 conditional certification based on evidence showing that defendant’s “lending officers 4 were subject to a uniform compensation plan” and “had similar jobs with similar 5 functions”). 6 Defendant contends that it lawfully compensated Plaintiffs, but as explained, it is 7 not the Court’s role at this stage of the litigation to decide the merits of Plaintiffs’ case. 8 Defendants also contend that bankers who worked in Alaska, California, Nevada, New 9 Mexico, and Pennsylvania are unlike the named Plaintiffs because whereas Plaintiffs were 10 paid on a salary basis, bankers who worked in these states were paid on an hourly basis. 11 Defendant submits its own declarations to support this contention. Yet again, it is not the 12 Court’s role to resolve factual disputes at this time. Furthermore, “the question at this stage 13 is not whose evidence regarding commonality is more believable, but simply whether 14 plaintiffs have made an adequate threshold showing that there are substantially similar 15 putative class members.” Benedict v. Hewlett-Packard Co., No. 13-CV-00119-LHK, 2014 16 WL 587135, at *12 (N.D. Cal. Feb. 13, 2014) (cleaned up). Plaintiffs have met their burden 17 and so the Court will conditionally certify the present matter as a collective action under 18 the FLSA for notice purposes. 19 B. Statute of Limitations 20 An FLSA claim for unpaid overtime compensation must “be commenced within 21 two years after the cause of action accrued . . . except that a cause of action arising out of 22 a willful violation may be commenced within three years after the cause of action accrued.” 23 29 U.S.C. § 255(a). Plaintiffs allege that Defendant’s failure to pay overtime compensation 24 was willful. (Doc. 26 ¶ 99.) Given this case is in its early stages of litigation, the Court will 25 provisionally certify Plaintiffs’ collective action for a period of three years prior to the 26 filing of Plaintiffs’ FAC, pending discovery. 29 U.S.C. § 255(a); Kesley, 67 F. Supp. 3d at 27 1073 (“Absent discovery, the Court cannot determine whether [plaintiffs’] allegation [of 28 willfulness] is accurate. Therefore, [p]laintiffs’ collective action will be provisionally 1 certified for a period of three years prior to the filing of [plaintiff’s complaint].”). For any 2 putative class member—that is any individual who has yet to opt-in—the limitations period 3 will be three years immediately preceding the date on which they file their consent forms. 4 29 U.S.C. § 256(b); Kesley, 67 F. Supp. 3d at 1073. 5 C. Notice Form and Method 6 Defendant raises concerns it has with Plaintiffs’ proposed notice and notice process, 7 and requests fourteen days to submit supplemental briefing. (Doc. 52 at 17.) The Court 8 orders the parties to meet and confer to discuss the content of the notice form and the notice 9 process. Within fourteen days of this order, the parties are to submit to this Court either a 10 joint notice form and agreement on the notice method, the opt-in period, and Defendant’s 11 production of potential class members’ names and last known addresses or, if the parties 12 cannot agree, supplemental briefs, limited to ten pages each, discussing their respective 13 positions. 14 IT IS ORDERED that Defendant’s Motion for Judgment on the Pleadings (Doc. 15 53) is DENIED. 16 IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss or Transfer 17 Venue (Doc. 30) is DENIED. The Court also denies Defendant’s request for certification 18 for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 19 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Conditional Certification 20 (Doc. 38) is GRANTED in part as follows: 21 1. The Court conditionally certifies Plaintiffs’ collective action for a period of 22 three years prior to the filing of Plaintiffs’ First Amended Complaint (Doc. 23 26). 24 2. After the parties have met and conferred, they are ORDERED to submit, 25 within fourteen days of this order, either a joint notice form and agreement 26 on the notice method, the opt-in period, and Defendant’s production of class 27 members’ names and last known addresses or, if the parties cannot agree, 28 1 supplemental briefs, limited to ten pages each, discussing their respective 2 positions. 3 Dated this 6th day of December, 2023. 4 5 Ls Ue 8 States Dictric Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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