6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 JOSE GUTIERREZ, et al., CASE NO. C21-682 RSM
9 Plaintiffs, ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY COLLECTIVE ACTION 10 v. CERTIFICATION
11 E&E FOODS, et al.,
12 Defendants.
13 14 This matter is before the Court on Plaintiffs’ Motion for Preliminary Collective Action 15 Certification. Dkt. #12. Plaintiffs’ motion seeks preliminary approval to pursue this as a 16 collective action under the Fair Labor Standards Act, 29 U.S.C. §§ 201–219 (“FLSA”) and for 17 authorization to send a notice of the action to Defendants’ past and present employees who may 18 be similarly situated. Id. Defendants oppose the motion on the basis that all employees are not 19 similarly situated and that the form of Plaintiffs’ proposed notice and the way Plaintiffs will 20 provide notice are improper. Dkt. #21. Having considered the matter, the Court grants the 21 motion in part and denies the motion in part. 22 Plaintiffs worked for Defendants on the M/V CAPE CREIG fish-processing factory 23 vessel. Dkt. #17 at ¶¶ 4–5 They now maintain that Defendants’ policy of “no fish, no pay” 24 violates the FLSA. Id. at ¶¶ 5–7. Under the “no fish, no pay” policy, Plaintiffs allege that they 1 “were on standby 16 hours a day, 7 days a week, waiting to work upon short notice when fish 2 were delivered to process by catcher boats.” Id. at ¶ 6. They maintain that they should have been 3 paid minimum and overtime wages during the time they “were required to wait on the vessel and 4 wait for deliveries.” Id. at ¶ 7. Plaintiffs believe that approximately fifty processors, similarly 5 situated to themselves, were employed on the vessel each summer processing season between
6 2018 and 2021. Id. at ¶ 10. 7 A. Preliminary Approval of Collective Action 8 The FLSA permits plaintiffs to pursue “collective actions:” 9 An action to recover the liability prescribed in the preceding sentences may be maintained against any employer . . . in any Federal or State court of competent 10 jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party 11 plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 12
13 29 U.S.C. § 216(b). Collective action “serves to (a) reduce the burden on plaintiffs through the 14 pooling of resources and (b) make efficient use of judicial resources by resolving common issues 15 of law and fact together.” Bolding v. Banner Bank, Case No. 17-cv-601-RSL, 2017 WL 6406136 16 (W.D. Wash. 2017) (citing Hoffman-La Rouche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)). 17 Determining whether to certify a FLSA collective action as involving similarly situated 18 plaintiffs and common issues of law and fact is within the discretion of the Court. Campbell v. 19 City of Los Angeles, 903 F.3d 1090, 1110 (2018); Bollinger v. Residential Cap., LLC, 20 761 F. Supp. 2d 1114, 1119 (W.D. Wash. 2011). Plaintiffs are similarly situated, “and may 21 proceed in a collective, to the extent they share a similar issue of law or fact material to the 22 disposition of their FLSA claims.” Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918, 23 948 (9th Cir. 2019) (quoting Campbell, 903 F.3d at 1117). The standard of proof at the pleading 24 stage is lenient and “loosely akin to a plausibility standard.” Campbell, 903 F3d at 1109; In re 1 Wells Fargo Home Mortgage Overtime Pay Litigation, 527 F. Supp. 2d 1053, 1070–71 (N.D. 2 Cal. 2004) (citing Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)). 3 Here, the Court is satisfied by the evidence and legal argument presented by Plaintiffs, 4 and Defendants do not seriously dispute that this action can proceed collectively. Defendants’ 5 objections relate to the difficult distinction between being “engaged to wait” and “waiting to be
6 engaged,” the importance of contractual language in drawing that distinction, and a lack of proof 7 that the same contract forms used in 2018 and 2019 were utilized in 2020 and 2021. Dkt. #21 at 8 9–10. But Plaintiffs submit sufficient evidence, for this stage of the proceedings, to demonstrate 9 that similar contract language was likely used in all the years at issue. See Dkt. #16 at 4–9 10 (attaching identical contracts used for 2018 and 2019 that could similarly be modified for use in 11 2020 and 2021). Notably, Defendants do not present any evidence of material changes in their 12 contracts or policy in 2020 and 2021. Rather, they present evidence that their “no fish, no pay” 13 policy is effectively the “industry standard,” in fact supporting the conclusion that the contractual 14 language and policy were unlikely to change for the 2020 and 2021 fishing seasons. See Dkts.
15 ##23, 23-1, 23-2, 23-3, 23-4, 23-5, 23-6, 23-7. The Court finds that Defendants’ objections are 16 more appropriately made and considered after discovery. See Campbell, 903 F.3d at 1100 (9th 17 Cir. 2018) (endorsing pleading stage “precertification” and post-discovery “decertification” 18 process for considering collective action). 19 B. Propriety of Proposed Notice and Notice Process 20 The primary purpose of a motion for preliminary collective action certification is 21 authorization to disseminate “a court-approved notice to the putative collective action members, 22 advising them that they must affirmatively opt in to participate in the litigation.” Id. at 1109 23 (citing 1 MCLAUGHLIN ON CLASS ACTIONS § 2:16 (14th ed. 2017)). In this case, Defendants raise 24 several challenges to Plaintiffs’ proposed notice and the notice process. 1 1. Defendants’ Production of Employee Information 2 So that they may provide notice to all similarly situated putative collective action 3 members, Plaintiffs request that the Court order Defendants to produce full names, last known 4 addresses, telephone numbers, dates and locations of employment, and dates of birth for relevant 5 employees. Dkt. #12 at 5–6. Defendants object to providing additional information beyond full
6 names and last known addresses.1 Dkt. #21 at 11–12. 7 Plaintiffs present evidence that they, and Defendants’ other employees, are often seasonal 8 and relatively transient, with a majority residing outside of Washington. Dkt. #14 at ¶ 6; see also 9 Dkt. #12 at 6. Additionally, many do not speak English as their first language. Dkt. #14 at ¶ 4. 10 As a result, Plaintiffs have a primary concern in having sufficient information to get notice to all 11 putative collective action members. Plaintiffs explain that dates of birth are “useful in tracking 12 changes of address.” Dkt. #12 at 6 n.1. Further, Plaintiffs indicate that they need telephone 13 numbers because they anticipate that notice by text-message may be the best form of notice for 14 many putative plaintiffs. Dkt. #26 at 3–4.
15 The Court shares Plaintiffs’ concerns related to adequate notice.
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 JOSE GUTIERREZ, et al., CASE NO. C21-682 RSM
9 Plaintiffs, ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY COLLECTIVE ACTION 10 v. CERTIFICATION
11 E&E FOODS, et al.,
12 Defendants.
13 14 This matter is before the Court on Plaintiffs’ Motion for Preliminary Collective Action 15 Certification. Dkt. #12. Plaintiffs’ motion seeks preliminary approval to pursue this as a 16 collective action under the Fair Labor Standards Act, 29 U.S.C. §§ 201–219 (“FLSA”) and for 17 authorization to send a notice of the action to Defendants’ past and present employees who may 18 be similarly situated. Id. Defendants oppose the motion on the basis that all employees are not 19 similarly situated and that the form of Plaintiffs’ proposed notice and the way Plaintiffs will 20 provide notice are improper. Dkt. #21. Having considered the matter, the Court grants the 21 motion in part and denies the motion in part. 22 Plaintiffs worked for Defendants on the M/V CAPE CREIG fish-processing factory 23 vessel. Dkt. #17 at ¶¶ 4–5 They now maintain that Defendants’ policy of “no fish, no pay” 24 violates the FLSA. Id. at ¶¶ 5–7. Under the “no fish, no pay” policy, Plaintiffs allege that they 1 “were on standby 16 hours a day, 7 days a week, waiting to work upon short notice when fish 2 were delivered to process by catcher boats.” Id. at ¶ 6. They maintain that they should have been 3 paid minimum and overtime wages during the time they “were required to wait on the vessel and 4 wait for deliveries.” Id. at ¶ 7. Plaintiffs believe that approximately fifty processors, similarly 5 situated to themselves, were employed on the vessel each summer processing season between
6 2018 and 2021. Id. at ¶ 10. 7 A. Preliminary Approval of Collective Action 8 The FLSA permits plaintiffs to pursue “collective actions:” 9 An action to recover the liability prescribed in the preceding sentences may be maintained against any employer . . . in any Federal or State court of competent 10 jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party 11 plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 12
13 29 U.S.C. § 216(b). Collective action “serves to (a) reduce the burden on plaintiffs through the 14 pooling of resources and (b) make efficient use of judicial resources by resolving common issues 15 of law and fact together.” Bolding v. Banner Bank, Case No. 17-cv-601-RSL, 2017 WL 6406136 16 (W.D. Wash. 2017) (citing Hoffman-La Rouche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)). 17 Determining whether to certify a FLSA collective action as involving similarly situated 18 plaintiffs and common issues of law and fact is within the discretion of the Court. Campbell v. 19 City of Los Angeles, 903 F.3d 1090, 1110 (2018); Bollinger v. Residential Cap., LLC, 20 761 F. Supp. 2d 1114, 1119 (W.D. Wash. 2011). Plaintiffs are similarly situated, “and may 21 proceed in a collective, to the extent they share a similar issue of law or fact material to the 22 disposition of their FLSA claims.” Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918, 23 948 (9th Cir. 2019) (quoting Campbell, 903 F.3d at 1117). The standard of proof at the pleading 24 stage is lenient and “loosely akin to a plausibility standard.” Campbell, 903 F3d at 1109; In re 1 Wells Fargo Home Mortgage Overtime Pay Litigation, 527 F. Supp. 2d 1053, 1070–71 (N.D. 2 Cal. 2004) (citing Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)). 3 Here, the Court is satisfied by the evidence and legal argument presented by Plaintiffs, 4 and Defendants do not seriously dispute that this action can proceed collectively. Defendants’ 5 objections relate to the difficult distinction between being “engaged to wait” and “waiting to be
6 engaged,” the importance of contractual language in drawing that distinction, and a lack of proof 7 that the same contract forms used in 2018 and 2019 were utilized in 2020 and 2021. Dkt. #21 at 8 9–10. But Plaintiffs submit sufficient evidence, for this stage of the proceedings, to demonstrate 9 that similar contract language was likely used in all the years at issue. See Dkt. #16 at 4–9 10 (attaching identical contracts used for 2018 and 2019 that could similarly be modified for use in 11 2020 and 2021). Notably, Defendants do not present any evidence of material changes in their 12 contracts or policy in 2020 and 2021. Rather, they present evidence that their “no fish, no pay” 13 policy is effectively the “industry standard,” in fact supporting the conclusion that the contractual 14 language and policy were unlikely to change for the 2020 and 2021 fishing seasons. See Dkts.
15 ##23, 23-1, 23-2, 23-3, 23-4, 23-5, 23-6, 23-7. The Court finds that Defendants’ objections are 16 more appropriately made and considered after discovery. See Campbell, 903 F.3d at 1100 (9th 17 Cir. 2018) (endorsing pleading stage “precertification” and post-discovery “decertification” 18 process for considering collective action). 19 B. Propriety of Proposed Notice and Notice Process 20 The primary purpose of a motion for preliminary collective action certification is 21 authorization to disseminate “a court-approved notice to the putative collective action members, 22 advising them that they must affirmatively opt in to participate in the litigation.” Id. at 1109 23 (citing 1 MCLAUGHLIN ON CLASS ACTIONS § 2:16 (14th ed. 2017)). In this case, Defendants raise 24 several challenges to Plaintiffs’ proposed notice and the notice process. 1 1. Defendants’ Production of Employee Information 2 So that they may provide notice to all similarly situated putative collective action 3 members, Plaintiffs request that the Court order Defendants to produce full names, last known 4 addresses, telephone numbers, dates and locations of employment, and dates of birth for relevant 5 employees. Dkt. #12 at 5–6. Defendants object to providing additional information beyond full
6 names and last known addresses.1 Dkt. #21 at 11–12. 7 Plaintiffs present evidence that they, and Defendants’ other employees, are often seasonal 8 and relatively transient, with a majority residing outside of Washington. Dkt. #14 at ¶ 6; see also 9 Dkt. #12 at 6. Additionally, many do not speak English as their first language. Dkt. #14 at ¶ 4. 10 As a result, Plaintiffs have a primary concern in having sufficient information to get notice to all 11 putative collective action members. Plaintiffs explain that dates of birth are “useful in tracking 12 changes of address.” Dkt. #12 at 6 n.1. Further, Plaintiffs indicate that they need telephone 13 numbers because they anticipate that notice by text-message may be the best form of notice for 14 many putative plaintiffs. Dkt. #26 at 3–4.
15 The Court shares Plaintiffs’ concerns related to adequate notice. However, Plaintiffs’ 16 need for dates of birth is currently speculative.2 Similarly, Plaintiffs have not established their 17 need for dates and locations of employment and the information’s import is not immediately 18 apparent to the Court. Lastly, while text-messages may be the best manner of providing notice 19 to many putative members, Plaintiffs give no indication of the contents of any such notice. The 20
21 1 Defendants further object to providing contact information for employees that did not work on M/V CAPE GREIG. Dkt. #21 at 13. Plaintiffs do not address the issue and therefore concede 22 any argument that they should be entitled to information for employees other than those that worked on the M/V CAPE GREIG. See generally Dkt. #26. 23
2 Additionally, Plaintiffs indicate a willingness to withdraw their request for dates of birth and 24 dates of employment. Dkt. #26 at 4 n.2. 1 Court will therefore deny the requests at this time. But nothing in this Order shall preclude 2 Plaintiffs from seeking additional information should it become necessary to effect notice. 3 2. Notice Forms 4 Plaintiffs have filed the proposed notice and opt-in forms in both English and Spanish. 5 See Dkts. ##13-1, 13-2. The sole issue as to the forms is Defendants’ request that the notice
6 inform putative members that they may be responsible for litigation costs if the action is 7 unsuccessful. Dkt. #21 at 17–18. There are numerous authorities supporting both Defendants’ and 8 Plaintiffs’ positions. Compare Dkt. #21 at 18 (collecting cases favorable to Defendants) with Dkt. 9 #26 at 5 (collecting cases favorable to Plaintiffs). Here, the Court finds that the likelihood of 10 financial exposure is outweighed by the potential chilling effect caused by including the 11 information in the notice. The Court therefore does not order Plaintiffs to alter the proposed 12 notices in this regard. 13 3. Notice Process 14 Defendants object that Plaintiffs have not provided sufficient indication of how they will
15 handle the notice process and request that Plaintiffs be ordered to utilize a third-party 16 administrator. Dkt. #21 at 13–14. Plaintiffs respond that counsel will administer the notice 17 process, that other courts have allowed counsel to administer the notice process, that the class of 18 potential members is small, and that the associated costs would be prohibitive. Dkt. #26 at 4–5. 19 The Court agrees that the use of a third-party administrator is an unnecessary expense in this case 20 and denies Defendants’ request. 21 4. Hand Delivery of Notice to Current Employees 22 Plaintiffs initially requested that the Court order Defendants to hand deliver copies of the 23 notices to their current processor employees. Dkt. #12 at 6. Defendants objected. Dkt. #21 at 24 14–17. However, Plaintiffs have subsequently withdrawn that request. Dkt. #26 at 5. 1 C. Conclusion 2 Accordingly, and having considered Plaintiffs’ motion, the briefing and evidence 3 submitted by the parties, and the remainder of the record, the Court finds and ORDERS: 4 1. Plaintiffs’ Motion for Preliminary Collective Action Certification (Dkt. #12) is 5 GRANTED in part and DENIED in part as set forth in this Order.
6 2. The Court preliminarily certifies a class of: “All people who worked as seafood 7 processors for Defendants on the M/V CAPE GRIEG at any time between 2018 and the 8 present.” 9 3. The Court APPROVES the proposed notices. 10 4. Defendants shall, within ten (10) days of this Order, produce an electronic list of all 11 persons who fit within the preliminary class, to include each person’s first and last name 12 and last known address. 13 5. Plaintiffs shall cause notices, in a form substantially similar to the forms approved, to be 14 mailed, within thirty (30) days of receipt of the class list, to all potential class members.
15 6. Potential class members shall have ninety (90) days from the date of mailing to submit 16 their consent to join this action. 17 DATED this 17th day of December, 2021. 18 19 A 20 RICARDO S. MARTINEZ 21 CHIEF UNITED STATES DISTRICT JUDGE