Juvera v. Salcido

294 F.R.D. 516, 2013 WL 1367354, 2013 U.S. Dist. LEXIS 48867
CourtDistrict Court, D. Arizona
DecidedApril 4, 2013
DocketNo. CV-11-02119-PHX-JAT
StatusPublished
Cited by14 cases

This text of 294 F.R.D. 516 (Juvera v. Salcido) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Juvera v. Salcido, 294 F.R.D. 516, 2013 WL 1367354, 2013 U.S. Dist. LEXIS 48867 (D. Ariz. 2013).

Opinion

ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Plaintiffs’ Unopposed Motion to Certify Conditionally Collective Action and Class Action (Doc. 50).

I. FACTUAL BACKGROUND

Defendant Factor Sales operates grocery stores under the names King Market, Factor Warehouse, and Del Sol. At least one named Plaintiff worked in each of these stores. Plaintiffs were cashiers at the stores between 2008 and 2012. As cashiers, Plaintiffs allege that they were paid at or slightly above the applicable minimum wage rates. Plaintiffs allege that, when the cash till for Plaintiffs and other cashiers did not add up correctly, as a matter of company policy, Defendant [519]*519Factor Sales required the cashiers, including Plaintiffs, to reimburse Factor Sales for any shortages and did not give any credit to cashiers for overages. Plaintiffs further allege that Defendant Factor Sales had a policy of requiring Plaintiffs and employees of Factor Sales to pay Defendants for extra uniforms and replacement name or security tags. Plaintiffs allege that, as a result of these policies, Plaintiffs and other cashiers were, at times, not paid the minimum wage.

II. PROCEDURAL BACKGROUND

Plaintiffs filed a Complaint against Defendants in this Court on October 27, 2011. In their Complaint, Plaintiffs allege that Defendants violated the Fair Labor Standards Act, 29 U.S.C. § 206(a) (the “FLSA”), violated the Arizona Minimum Wage Act, Arizona Revised Statutes section 23-363(A), and violated Arizona Revised Statutes section 23 — 351(c).

After some discovery, the Parties stipulated to refer the case to a magistrate judge for purposes of holding a settlement conference, and if settlement was reached, for overseeing the procedural and logistical aspects of settling a FLSA collective action/Federal Rule of Civil Procedure 23 state law class action. (Doe. 34). The Parties did not stipulate that the Magistrate Judge handle motions related to collective/elass certification. (Id.). Thereafter, the Court granted the Stipulation and the case was assigned to Magistrate Judge Lawrence Anderson for the purposes of holding a settlement conference and, if settlement was reached, for overseeing the procedural and logistical aspects of settling a FLSA collective action/Federal Rule of Civil Procedure 23 state law class action. (Doc. 35).

Thereafter, Plaintiffs filed a Notice of Settlement with the Court, but indicated that they would still be seeking FLSA and Rule 23 certification as part of the settlement. (Doe. 45).

Plaintiffs now move for FLSA class certification and Rule 23 Class Certification for their state law claims. (Doe. 50). The motion is unopposed. (Id.).

III. FLSA CLASS CERTIFICATION

Pursuant to 29 U.S.C.A. § 216(b), an action “may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C.A. § 216(b).

Named Plaintiffs ask the Court to conditionally certify this action as a representative collective action pursuant to 29 U.S.C. 216(b) on behalf of “All current and former cashiers of Defendant Factor Sales, Inc. who were employed as such in the State of Arizona at any point from January 1, 2007 through the present date.” The decision to certify a collective action under the FLSA is within the discretion of the Court. Edwards v. City of Long Beach, 467 F.Supp.2d 986, 989 (C.D.Cal.2006). To certify a collective action under the FLSA, the Court must determine whether named Plaintiffs and potential opt-in members are “similarly situated.” 29 U.S.C. § 216(b). The FLSA does not define the term “similarly situated,” and the Ninth Circuit Court of Appeals has not construed it. Wood v. TriVita, Inc., No. CV-08-0765-PHX-SRB, 2009 WL 2046048 at *2 (D.Ariz. Jan. 22, 2009).

Courts have taken at least three different approaches to analyzing the issue: “(1) a two-tiered case-by-case approach, (2) the incorporation of the requirements of Rule 23 of the current Federal Rules of Civil Procedure, or (3) the incorporation of the requirements of the pre-1966 version of Rule 23 for ‘spurious’ class actions.” Id. The majority of courts, including this Court, have adopted the two-tiered approach. See, e.g., Bogor v. Am. Pony Exp., Inc., 09-2260-PHX-JAT, 2010 WL 1962465, at *2 (D.Ariz. May 17, 2010). Accordingly, this Court will continue to follow the majority two-tiered approach.

Under the two-tiered approach, during the early stages of litigation, the Court evaluates the case under a lenient standard and may grant conditional certification. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir.2001). If the Court “‘conditionally certifies’ the class, putative class members are given notice and the opportunity to ‘opt-in.’ The action proceeds as [520]*520a representative action throughout discovery.” Id. at 1218 (citation omitted). The Court then reevaluates, usually prompted by a motion for decertification, the “similarly situated” question at a later stage, once discovery has produced sufficient information regarding the nature of the claims. Id. at 1217-18. This determination, under a stricter standard, is based on much more information, which makes a factual determination possible. Id. at 1218; Wood, 2009 WL 2046048 at *3.

In this case, Plaintiffs only seek conditional class certification because they are still in the discovery phase of litigation and no depositions have taken place. At the early stage, or the “notice stage,” the Court “must determine whether Plaintiffs were ‘similarly situated’ as required to create an opt-in class under § 216(b)” based on the pleadings and any Declarations that have been submitted. Hipp, 252 F.3d at 1217-1218 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995)). The Court uses a fairly lenient standard because the Court does not have much evidence at this stage. Id. at 1218. “Plaintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members.” Id. at 1217 (quotation omitted). “Courts have held that conditional certification requires only that ‘plaintiffs make substantial allegations that the putative class members were subject to a single illegal policy, plan or decision.’ ” Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 536 (N.D.Cal.2007) (internal citation omitted).

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294 F.R.D. 516, 2013 WL 1367354, 2013 U.S. Dist. LEXIS 48867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/juvera-v-salcido-azd-2013.