1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jason Kapzynski, No. CV-21-08040-PCT-MTL
10 Plaintiff, ORDER
11 v.
12 Colt Barbeque & Spirits LLC,
13 Defendant. 14 15 Colt Barbeque & Sprits LLC (“Colt Grill”) operates multiple restaurant locations in 16 Arizona. Plaintiff Jason Kapzynski brings suit under the Fair Labor Standards Act 17 (“FLSA”), on his behalf and for all others similarly situated, against Colt Grill for unpaid 18 overtime wages. Plaintiff contends he is a former Colt Grill employee and that he was paid 19 straight time wages for overtime hours worked. 20 I. 21 Presently before the Court is Plaintiff’s Motion for Conditional Certification for the 22 following FLSA collective pursuant to 29 U.S.C. § 216(b): “Current and former hourly 23 employees of Colt BBQ & Spirits LLC d/b/a Colt Grill, who were paid ‘straight time for 24 overtime’ at any point from February 24, 2018, to the present.” (Docs. 23, 23-8.) The 25 Motion also requests approval of Plaintiff’s proposed notice and consent procedure. Colt 26 Grill opposes the Motion on both fronts, arguing that the proposed collective does not 27 consist of similarly situated individuals because some potential members have or had 28 “supervisory responsibilities that are inherently at odds with Kapzynski.” (Doc. 27 at 1.) 1 Colt Grill further contests certain aspects of Plaintiff’s notice and consent procedure. For 2 the reasons described below, the Motion will be granted, in part. 3 II. 4 A. 5 The FLSA mandates that covered employers pay employees an overtime rate of 6 “one and one-half times the regular rate” of pay for work exceeding 40 hours in one week. 7 29 U.S.C. § 207(a)(1). “Any employer who violates the provisions of . . . section 8 207 . . . shall be liable to the employee or employees affected in the amount of . . . their 9 unpaid overtime compensation[.]” Id. § 216(b). A collective action to recover these 10 damages may be brought “against any employer . . . by any one or more employees for and 11 on behalf of himself or themselves and other employees similarly situated.” Id. Employees 12 not named in the complaint who wish to join the action must give their consent in writing 13 to the court in which the action is brought. Id. 14 The term “similarly situated” is critical for defining collective action status. Yet 15 Congress did not provide a definition in the FLSA. Courts have taken a variety of 16 approaches to fill in this gap. In Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 17 2018), the Ninth Circuit considered the appropriate standard for district courts to apply 18 when deciding a motion to certify a collective action. The court held that “[p]arty plaintiffs 19 are similarly situated, and may proceed in a collective, to the extent they share a similar 20 issue of law or fact material to the disposition of their FLSA claims.” Id. at 1117. Plaintiffs’ 21 “burden is light,” but conditional certification is “by no means automatic.” Colson v. Avnet, 22 Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010). “The level of consideration is . . . akin to a 23 plausibility standard.” Campbell, 903 F.3d at 1109. District courts are directed to focus on 24 “similarities among the party plaintiffs” instead of scrutinizing differences. Id. at 1117. “If 25 the party plaintiffs’ factual or legal similarities are material to the resolution of their case, 26 dissimilarities in other respects should not defeat collective treatment.” Id. at 1114. 27 Once the district court preliminarily certifies a FLSA class, a notice is disseminated 28 to putative members of the collective action “advising them that they must affirmatively 1 opt in to participate in the litigation. Id. at 1109. Following discovery, “[t]he employer can 2 move for ‘decertification’ of the collective action for failure to satisfy the ‘similarly 3 situated’ requirement in light of the evidence produced to that point.” Id. 4 B. 5 The Court finds that the Plaintiff’s proposed collective definition satisfies the 6 requirement that members are similarly situated with one another. According to Plaintiff’s 7 proposed definition, each potential collective member must be a current or former hourly 8 employee of Colt Grill. Plaintiff Kapzynski and the putative collective members who have 9 thus far opted into this litigation are all former hourly employees who allege FLSA 10 violations. 11 Colt Grill’s objection to preliminary certification because “two of the opt-in 12 claimants are managers” is not well taken. (See Doc. 27 at 3.) While some putative 13 members may have or had managerial responsibilities, the Court is not convinced that such 14 a distinction with other hourly employees is a material one. The proposed definition limits 15 collective members to hourly wage earners. Salaried employees, i.e., employees who 16 exercise managerial responsibilities, are excluded. Whether Colt Grill paid hourly 17 employees straight time instead of overtime pay, regardless of their job responsibilities, 18 constitutes a material factual similarity among the putative collective. At least at this early 19 stage, Colt Grill’s objection focuses too heavily on immaterial differences. See Campbell, 20 903 F.3d at 1114. Similarly, Colt Grill relies too heavily on a recently decided Fifth Circuit 21 case, Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021). In that 22 opinion, the Fifth Circuit provided a critical analysis of the federal judiciary’s approach to 23 determining whether putative collective members are “similarly situated.” But this Court 24 is bound to follow the principles recognized by the Ninth Circuit in Campbell and 25 elsewhere. Accordingly, Plaintiff’s Motion for Conditional Certification will be granted. 26 III. 27 Plaintiff next moves for approval of a comprehensive notice procedure. In sum, 28 Plaintiff asks that the Court: [i] “order Colt Grill to provide Collective Counsel with the 1 names, last known home addresses, email addresses, and phone numbers for all the Putative 2 Collective Members”; [ii] authorize electronic notice by way of a public website; 3 [iii] permit notice by email; [iv] permit notice to putative collective members by text 4 messages to their personal cell phones; [v] order Colt Grill to post the notice at its jobsites 5 for the duration of the opt-in period; [vi] permit reminder notice; and [vii] permit counsel 6 to contact certain putative collective members by phone call. (Doc. 23 at 2, 9–12.) Colt 7 Grill objects to providing any notice beyond regular mail. (Doc. 27 at 8–9.) Colt Grill also 8 objects to providing putative collective members reminder notice. (Id. at 8.) 9 “In exercising the discretionary authority to oversee the notice-giving process, 10 courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take 11 care to avoid even the appearance of judicial endorsement of the merits of the action.” 12 Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989). Courts must carefully avoid 13 authorizing a notice procedure that amounts to “the solicitation of claims.” Id. Notice by 14 regular mail is a standard form of notice for putative FLSA collective action members. 15 Notice by email is also warranted. Email has become a reliable method of business 16 communication and is acceptable here. See Weeks v. Matrix Absence Management Inc., 17 494 F. Supp. 3d 653, 659 (D. Ariz. 2020).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jason Kapzynski, No. CV-21-08040-PCT-MTL
10 Plaintiff, ORDER
11 v.
12 Colt Barbeque & Spirits LLC,
13 Defendant. 14 15 Colt Barbeque & Sprits LLC (“Colt Grill”) operates multiple restaurant locations in 16 Arizona. Plaintiff Jason Kapzynski brings suit under the Fair Labor Standards Act 17 (“FLSA”), on his behalf and for all others similarly situated, against Colt Grill for unpaid 18 overtime wages. Plaintiff contends he is a former Colt Grill employee and that he was paid 19 straight time wages for overtime hours worked. 20 I. 21 Presently before the Court is Plaintiff’s Motion for Conditional Certification for the 22 following FLSA collective pursuant to 29 U.S.C. § 216(b): “Current and former hourly 23 employees of Colt BBQ & Spirits LLC d/b/a Colt Grill, who were paid ‘straight time for 24 overtime’ at any point from February 24, 2018, to the present.” (Docs. 23, 23-8.) The 25 Motion also requests approval of Plaintiff’s proposed notice and consent procedure. Colt 26 Grill opposes the Motion on both fronts, arguing that the proposed collective does not 27 consist of similarly situated individuals because some potential members have or had 28 “supervisory responsibilities that are inherently at odds with Kapzynski.” (Doc. 27 at 1.) 1 Colt Grill further contests certain aspects of Plaintiff’s notice and consent procedure. For 2 the reasons described below, the Motion will be granted, in part. 3 II. 4 A. 5 The FLSA mandates that covered employers pay employees an overtime rate of 6 “one and one-half times the regular rate” of pay for work exceeding 40 hours in one week. 7 29 U.S.C. § 207(a)(1). “Any employer who violates the provisions of . . . section 8 207 . . . shall be liable to the employee or employees affected in the amount of . . . their 9 unpaid overtime compensation[.]” Id. § 216(b). A collective action to recover these 10 damages may be brought “against any employer . . . by any one or more employees for and 11 on behalf of himself or themselves and other employees similarly situated.” Id. Employees 12 not named in the complaint who wish to join the action must give their consent in writing 13 to the court in which the action is brought. Id. 14 The term “similarly situated” is critical for defining collective action status. Yet 15 Congress did not provide a definition in the FLSA. Courts have taken a variety of 16 approaches to fill in this gap. In Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 17 2018), the Ninth Circuit considered the appropriate standard for district courts to apply 18 when deciding a motion to certify a collective action. The court held that “[p]arty plaintiffs 19 are similarly situated, and may proceed in a collective, to the extent they share a similar 20 issue of law or fact material to the disposition of their FLSA claims.” Id. at 1117. Plaintiffs’ 21 “burden is light,” but conditional certification is “by no means automatic.” Colson v. Avnet, 22 Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010). “The level of consideration is . . . akin to a 23 plausibility standard.” Campbell, 903 F.3d at 1109. District courts are directed to focus on 24 “similarities among the party plaintiffs” instead of scrutinizing differences. Id. at 1117. “If 25 the party plaintiffs’ factual or legal similarities are material to the resolution of their case, 26 dissimilarities in other respects should not defeat collective treatment.” Id. at 1114. 27 Once the district court preliminarily certifies a FLSA class, a notice is disseminated 28 to putative members of the collective action “advising them that they must affirmatively 1 opt in to participate in the litigation. Id. at 1109. Following discovery, “[t]he employer can 2 move for ‘decertification’ of the collective action for failure to satisfy the ‘similarly 3 situated’ requirement in light of the evidence produced to that point.” Id. 4 B. 5 The Court finds that the Plaintiff’s proposed collective definition satisfies the 6 requirement that members are similarly situated with one another. According to Plaintiff’s 7 proposed definition, each potential collective member must be a current or former hourly 8 employee of Colt Grill. Plaintiff Kapzynski and the putative collective members who have 9 thus far opted into this litigation are all former hourly employees who allege FLSA 10 violations. 11 Colt Grill’s objection to preliminary certification because “two of the opt-in 12 claimants are managers” is not well taken. (See Doc. 27 at 3.) While some putative 13 members may have or had managerial responsibilities, the Court is not convinced that such 14 a distinction with other hourly employees is a material one. The proposed definition limits 15 collective members to hourly wage earners. Salaried employees, i.e., employees who 16 exercise managerial responsibilities, are excluded. Whether Colt Grill paid hourly 17 employees straight time instead of overtime pay, regardless of their job responsibilities, 18 constitutes a material factual similarity among the putative collective. At least at this early 19 stage, Colt Grill’s objection focuses too heavily on immaterial differences. See Campbell, 20 903 F.3d at 1114. Similarly, Colt Grill relies too heavily on a recently decided Fifth Circuit 21 case, Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021). In that 22 opinion, the Fifth Circuit provided a critical analysis of the federal judiciary’s approach to 23 determining whether putative collective members are “similarly situated.” But this Court 24 is bound to follow the principles recognized by the Ninth Circuit in Campbell and 25 elsewhere. Accordingly, Plaintiff’s Motion for Conditional Certification will be granted. 26 III. 27 Plaintiff next moves for approval of a comprehensive notice procedure. In sum, 28 Plaintiff asks that the Court: [i] “order Colt Grill to provide Collective Counsel with the 1 names, last known home addresses, email addresses, and phone numbers for all the Putative 2 Collective Members”; [ii] authorize electronic notice by way of a public website; 3 [iii] permit notice by email; [iv] permit notice to putative collective members by text 4 messages to their personal cell phones; [v] order Colt Grill to post the notice at its jobsites 5 for the duration of the opt-in period; [vi] permit reminder notice; and [vii] permit counsel 6 to contact certain putative collective members by phone call. (Doc. 23 at 2, 9–12.) Colt 7 Grill objects to providing any notice beyond regular mail. (Doc. 27 at 8–9.) Colt Grill also 8 objects to providing putative collective members reminder notice. (Id. at 8.) 9 “In exercising the discretionary authority to oversee the notice-giving process, 10 courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take 11 care to avoid even the appearance of judicial endorsement of the merits of the action.” 12 Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989). Courts must carefully avoid 13 authorizing a notice procedure that amounts to “the solicitation of claims.” Id. Notice by 14 regular mail is a standard form of notice for putative FLSA collective action members. 15 Notice by email is also warranted. Email has become a reliable method of business 16 communication and is acceptable here. See Weeks v. Matrix Absence Management Inc., 17 494 F. Supp. 3d 653, 659 (D. Ariz. 2020). Reminder notice is likewise a standard notice 18 procedure in collective action cases, given that the FLSA requires putative collective 19 members to opt-in. See Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 20 2010). The Court will permit Plaintiff to send a reminder notice to putative collective 21 members who do not respond to the initial notice. The Court agrees with Colt Grill, 22 however, that Plaintiff’s proposed notice by way of a public website, postings at Colt Grill 23 jobsites, text messages, and direct phone calls by counsel are needlessly duplicative and 24 cross the line into impermissible claims solicitation. Such methods of communication will 25 not be permitted. Both the initial and reminder notice must therefore be sent by mail and 26 email. 27 Plaintiff also proposes a notice timeline that incorporates deadlines for: [i] Colt Grill 28 to provide names and contact information for putative collective members, [ii] distribution 1 of the notice to putative collective members, [iii] an opt-in period for putative collective 2 members to return consent forms, and [iv] a follow-up period for Plaintiff’s counsel to send 3 reminder notice to putative collective members. (Doc. 23-8 at 2.) Plaintiff proposes a 60- 4 day opt-in period. (Doc. 23 at 2.) Colt Grill contends in response that a 30-day opt-in period 5 is adequate. (Doc. 27 at 7.) Colt Grill also objects to Plaintiff’s proposed form of notice. 6 The Court will direct the parties to meet and confer and propose a joint stipulated timeline 7 and form of notice that considers the direction provided in this Order. 8 IV. 9 Accordingly, IT IS ORDERED: 10 1. Plaintiff’s Motion for Conditional Certification (Doc. 23) is granted to the 11 extent that the following FLSA collective action is certified: “Current and former hourly 12 employees of Colt BBQ & Spirits LLC d/b/a Colt Grill, who were paid ‘straight time for 13 overtime’ at any point from February 24, 2018, to the present.” 14 2. Plaintiff’s Motion, to the extent that it seeks approval for notice, is granted 15 in part and denied in part. 16 a. Defendant Colt Grill shall, within 10 days of this Order, provide to 17 Plaintiff’s counsel, in Excel format (.xlxs), the names, last known addresses and 18 email addresses, and beginning and ending dates of employment of all putative 19 collective members so that Plaintiff may notify them of the collective action. 20 b. The parties shall meet and confer to prepare a proposed stipulated 21 form of notice, as well as a proposed schedule for sending notice, and submit the 22 same to the Court no later than 21 days from the date of this Order for approval 23 prior to circulation of the notice. If the parties are unable to reach an agreement 24 regarding the notice provisions, such disputes may be noted in the filing or the 25 parties may make separate filings. 26 . . . 27 . . . 28 . . . 1 3. To the extent that the Motion seeks further relief, it is denied. 2 Dated this 22nd day of December, 2021. 3 Michal T. burg Michael T. Liburdi 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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