Kim v. US Bancorp

• Court: District Court, W.D. Washington
• Decided: February 8, 2022
• Docket: 2:20-cv-00032
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 STEVE KIM, 7 Plaintiff, CASE NO. 2:20-cv-00032-TL-BAT 8 v. ORDER SETTING BRIEFING 9 SCHEDULE FOR CLASS US BANKCORP, US BANK NATIONAL CERTIFICATION AND 10 ASSOCIATION, DECERTIFICATION MOTIONS AND DENYING MOTION FOR 11 Defendants. PROTECTIVE ORDER

12 This matter has been referred to the undersigned Magistrate Judge for all pretrial 13 proceedings. Presently pending before the Court are the parties’ Joint Proposed Discovery Plan 14 and Briefing Schedule (Dkt. 121) and Plaintiff’s Motion for Protective Order (Dkt. 127). 15 BACKGROUND 16 Plaintiff Steve Kim alleges overtime claims under the Fair Labor Standards Act 17 (“FLSA”), 29 U.S.C. §§ 201, et seq., and Washington’s Minimum Wage Act, RCW 49.46 et seq. 18 (“MWA”), on behalf of a group of nonexempt Branch Assistant Managers in Washington State, 19 who were reclassified by U.S. Bank from exempt-from-overtime to overtime-eligible in 20 November 2016. Dkt. 1, ¶ 1. 21 Plaintiff moved to conditionally certify a FLSA collective on March 19, 2020. Dkt. 24. 22 He submitted his own declaration and those of five others (the “Original Opt-In Plaintiffs”) as 23 evidence in support of conditional certification. Dkt. Nos. 26-32. While the motion for 1 conditional certification was pending, U.S. Bank deposed Plaintiff Kim and the Original Opt-In 2 Plaintiffs. In their opposition to the conditional class certification, Defendants asserted key 3 differences amongst the six individuals. Dkt. 69 at 2-4 (citing depositions of Steve Kim and 4 Allison Wile).

5 When the Court granted conditional certification on August 18, 2021, it noted the 6 differences pointed out by U.S. Bank, stating that this type of evidence would be considered at 7 the decertification stage of the proceeding: “U.S. Bank’s challenges will be considered after 8 discovery is complete during the second stage of the collective action analysis.” Dkt. 74, pp. 4, 7. 9 On August 18, 2021, the Court conditionally certified the case for collective action under 10 the FSLA on behalf of the following group (the “FSLA Collective”): 11 All persons nationwide who, at any time from April 20, 2018, to the date of final judgment in this matter, are or were employed by U.S. Bank as Branch Assistant 12 Managers (also known as Customer Service Managers and/or Sales & Service Managers). 13 The Court also approved issuance of the notice, the form and content of the 14 consent to join, and set timelines for the opt-in procedure. Dkt. 74, p. 8. Court-authorized 15 notice of the lawsuit went out to all potential collective members on September 15, 2021 16 (over 2,800 individuals were sent notice of the lawsuit). See Dkt. 75, p. 1. 17 The parties were ordered to submit a “Joint Proposed Second Phase Discovery 18 Order” by December 6, 2021, including, among other things, a deadline for second phase 19 discovery, a briefing schedule for Plaintiff’s motion for class certification under Rule 23, 20 and a briefing schedule for Defendants’ motion for decertification of the FLSA 21 Collective. Dkt. 76, p. 2. On December 6, 2021, the parties’ deadline was continued to 22 December 21, 2021. Dkt. 116 (stipulated motion); Dkt. 117 (order). 23 1 On December 21, 2021, the parties filed their Joint Status Report. Dkt. 121. The 2 parties report that the opt-in period for FLSA collective members ended on November 15, 3 2021; putative collective members who received a re-mailed notice of the collective 4 action had until December 27, 2021 to submit a consent to join form. As of December 20,

5 2021, 737 individuals have submitted consent to join forms. Id., p. 1. 6 DISCUSSION AND RULINGS 7 A. Request to Continue Joinder Deadline 8 Plaintiff requests a continuance of his deadline to join additional parties until 9 January 20, 2022 due to the December 27, 2021 deadline for putative opt-in plaintiffs (to 10 whom notices were remailed). Dkt. 121, p. 2. The Court denies this request as it 11 previously set timelines for the opt-in procedure. See Dkt. 74, p. 8 (“Putative collective 12 members shall have sixty days from the date the notice is mailed to opt-in (unless the first 13 notice is returned undeliverable and a new address is located, in which case the opt-in 14 period for that putative collective member will close no later than 120 days after the date

15 of the first mailing of the original notice to the putative collective member). 16 B. Briefing Schedule for Class Certification and Decertification Motions 17 The Court agrees with Defendants that the briefing schedules for the class 18 certification and decertification motions should be identical and that there is no need to 19 disclose witnesses in advance. Accordingly, it is ORDERED that the following briefing 20 schedules shall apply to the motions: 21 1. Motion for Class Certification 22 a. Plaintiff shall file his motion for class certification (with all evidence, including fact and expert declarations, on which he intends to rely) by 23 February 3, 2023; 1 b. Defendants shall file their opposition to Plaintiff’s motion for class 2 certification (with all evidence, including fact and expert declarations, on which they intend to rely) by April 4, 2023; 3 c. Plaintiff’s reply brief shall be filed by June 3, 2023; and noted for 4 the same date.

5 2. Motion for Decertification 6 a. Defendants shall file their motion for decertification of the FLSA Collective (with all evidence, including fact and expert declarations, on which 7 they intend to rely) by February 3, 2023;

8 b. Plaintiff shall file his opposition to Defendants’ motion for decertification (with all evidence, including fact and expert declarations, on which 9 he intends to rely) by April 4, 2023;

10 c. Defendants’ reply brief shall be filed by June 2, 2023; and noted for the same date. 11 3. Discovery Related to Certification/Decertification 12 Discovery related to the motions for class certification and decertification shall close on 13 June 2, 2023. If a discovery dispute arises and the parties cannot agree after a reasonable meet 14 and confer process, the parties may file a motion with the Court, pursuant to Local Civil Rule 15 37(a)(2). Any such discovery dispute shall be filed with the Court by May 2, 2023. 16 C. Plaintiff’s Protective Order (Dkt. 127) 17 Plaintiff seeks a protective order “limiting the written discovery and depositions 18 Defendants seek to conduct during this stage of the litigation.” Dkt. 127, p. 2. There are no 19 pending or outstanding discovery requests. For the reasons stated herein, the Court denies the 20 motion. 21 District courts in the Ninth Circuit apply a two-tiered approach to certification of an 22 FLSA collective action. Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642, 649 (W.D. Wash. 23 1 2011); In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp.2d 1053, 1070-71 2 (N.D. Cal. 2007); Wynn v. Nat’l Broad. Co. Inc., 234 F. Supp.2d 1067, 1082 (C.D. Cal. 2002). 3 First, a district court determines whether potential class members are similarly situated 4 such that a collective action should be certified for the purpose of sending out notice of the

5 action and providing an opportunity to opt-into the litigation. Troy, 276 F.R.D. at 649. At this 6 notice stage, the district court requires “little more than substantial allegations, supported by 7 declarations or discovery, that the putative class members were together the victims of a single 8 decision, policy or plan.” Id. (internal quotation marks omitted). The standard at this phase is 9 fairly lenient; “plaintiffs need only establish a ‘reasonable basis for their claim of classwide’ 10 injury.” Khadera v. ABM Indus., Inc., 701 F. Supp.2d 1190, 1194 (W.D. Wash. 2010) (quoting 11 Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)). Because there is often 12 little evidence before the court at this stage, the court generally relies on the pleadings and 13 affidavits submitted by the parties in deciding whether potential plaintiffs should receive notice. 14 Bollinger v. Residential Capital, LLC, 761 F. Supp.2d 1114, 1119 (W.D. Wash. 2011).

15 The second stage occurs, if at all, on defendant’s motion to decertify after discovery is 16 completed. Wilson v. Maxim Healthcare Servs., Inc., Cause No. 14-0789-RSL, Dkt. 28 at 2-4 17 (W.D. Wash. August 18, 2014). At that point, the district court employs a stricter standard to 18 determine whether the plaintiffs are, in fact, similarly situated, considering factors such as the 19 specific duties and conditions of employment of the individual plaintiffs and the various defenses 20 available to the defendant with respect to the individual plaintiffs. Troy, 276 F.R.D. at 649; 21 Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. 2006). If, in light of the 22 additional evidence acquired during discovery, the Court determines that plaintiffs are not 23 similarly situated, it may decertify the class and dismiss the opt-in plaintiffs without prejudice. 1 Romero, 235 F.R.D. at 482. 2 We are at the second stage of this FSLA Collective. Therefore, the Court must apply a 3 stricter standard to determine whether the opt-in plaintiffs are similarly situated and to do so, 4 additional evidence acquired during discovery is crucial. The Court anticipated this need for

5 further discovery when it conditionally certified the class: “U.S. Bank’s challenges (to whether 6 the opt-in plaintiffs are similarly situated) will be considered after discovery is complete during 7 the second stage of the collective action analysis.” Dkt. 74, pp. 4, 7. 8 As the party seeking to limit discovery, Plaintiff has the burden of showing “that specific 9 prejudice or harm will result” from annoyance, embarrassment, oppression, or undue burden or 10 expense if the protective order is not granted. DeFreitas v. Tillinghast, No. 2:12-cv-00235-JLR, 11 2013 WL 209277, at *4 (W.D. Wash. Jan. 17, 2013); see also Fed. R. Civ. P. 26(c)(1) and 12 Hoffman v. Hearing Help Express Inc., No. C19-5960 MJP, 2020 WL 7625240, at *2 (W.D. 13 Wash. Dec. 22, 2020) (“A party asserting good cause bears the burden, for each particular 14 document it seeks to protect, of showing that specific prejudice or harm will result if no

15 protective order is granted . . . unsubstantiated allegations of harm and burden will not suffice.”) 16 (internal citations and quotations omitted). Motions for protective orders are not based on 17 “speculative allegations of injury.” Angeles Chem. Co. v. McKesson Corp., No. 10532-TJH-E, 18 2006 WL 8455068, at *2 (W.D. Wash. Mar. 10, 2006) (denying protective order where movant 19 could not identify “a single document” requiring protection). 20 Here, Plaintiff does not seek to protect any specific document and he provides no 21 evidence of specific prejudice or harm. Rather, Plaintiff is asking the Court to prospectively 22 order a set of restrictions on the discovery he anticipates “Defendants intend to seek.” Dkt. 127, 23 p. 2. Plaintiff asks that the Court limit Defendants’ written and deposition discovery to a 1 “sample” of the FLSA Collective. Plaintiff proposes that, out of the 737 opt-in Plaintiffs, only 36 2 should be subject to written discovery and only 18 should be deposed. Plaintiff also proposes that 3 Defendants’ written discovery be further limited to ten interrogatories and ten requests for 4 production for the 36 sample plaintiffs.

5 Plaintiff offers no explanation for why this sample size – less than 5 percent of the FLSA 6 Collective – makes sense, particularly, when at issue are hundreds of employees who worked for 7 different supervisors at different branches nationwide, some of whom worked at the time the 8 position was reclassified, and some of whom signed collective action waivers. The numbers 9 offered by Plaintiff are arbitrary as they are not predicated on any characteristics of the putative 10 collective. See Duran v. U.S. Bank Nat’l Assn., 59 Cal. 4th 1, 42 (2014) (“It is impossible to 11 determine an appropriate sample size without first learning about the variability in the 12 population.”) 13 To prepare for a motion to decertify an FLSA collective, numerous courts in the Ninth 14 Circuit have held that it is “essential for a defendant to take individualized discovery of the opt-

15 in plaintiffs to determine if they are ‘similarly situated’ within the meaning of [the] FLSA.” See 16 Khadera v. ABM Indus., Case No. 08-cv- 417, 2011 WL 3651031, at *3 (W.D. Wash. Aug. 18, 17 2011) (collecting cases; abrogated on other grounds); Abubakar v. City of Solano, No. CIV S- 18 06-2268 LKK EFB, 2008 WL 508911, at *1, *2 (E.D. Cal. Feb. 22, 2008) (concluding 19 “individualized discovery” of 160 FLSA plaintiffs was “appropriate” when defendant indicated it 20 would be challenging whether FLSA plaintiffs were similarly situated); Coldiron v. Pizza Hut, 21 Inc., No. CV03-05865TJHMCX, 2004 WL 2601180, at *2 (C.D. Cal. Oct. 25, 2004) (concluding 22 defendant could “conduct individualized discovery from the [306] opt-in plaintiffs” when “the 23 question of whether the plaintiffs are similarly situated within the meaning of 29 U.S.C. § 216(b) 1 [was] still an issue because [the defendant] plainly intend[ed] to move to decertify the class”). 2 Whether or not to permit to discovery in a Rule 23 class action lies within the sound 3 discretion of the court. Kamm v. California City Development Company, 509 F.2d 205, 209 (9th 4 Cir.1975). In a situation in which the propriety of a class action cannot be determined without

5 discovery, it is an abuse of discretion to deny discovery. Id. at p. 210. Here, the question of 6 whether the plaintiffs are similarly situated within the meaning of the FSLA is still an issue 7 because Defendants plainly intend to move to decertify the class. Based on that reason alone, 8 discovery is both necessary and appropriate. Clearly, the number of opt-in plaintiffs is much 9 larger in this case than in the cases permitting individualized discovery. For example, in 10 Coldiron there were 306 opt-in plaintiffs and here there are 737. 11 Given the size of this FSLA Collective and in light of binding and persuasive authority, it 12 is peculiar that the parties have opted to take an “all or nothing” approach to this issue instead of 13 putting their heads together to arrive at a manageable and sensible approach, i.e., arriving at a 14 percentage sample of the collective that is predicated on particular characteristics of the FSLA

15 Collective and one that involves both Plaintiff and Defendants in the selection process. See, e.g., 16 Davis v. Westgate Planet Hollywood Las Vegas, LLC, 2010 WL 5490775, *1, 3 (Nov. 8, 2010) 17 (permitting individualized discovery from a 10 percent sample of 720 opt-in plaintiffs to enable 18 defendants to test plaintiffs' FSLA claims). 19 Additionally, Plaintiff asks that if an opt-in plaintiff fails to respond to discovery, the 20 Court not dismiss them but randomly replace them with another opt-in defendant. This request is 21 premature. Certainly, plaintiffs who fail to respond to discovery may be dismissed. See e.g., 22 Flores v. Velocity Express, LLC, No. 12-CV-05790-JST, 2017 WL 3394144, at *2 (N.D. Cal. 23 Aug. 8, 2017) (dismissing opt-in plaintiffs who failed to respond to discovery in FLSA collective 1 action); Davis v. Westgate Planet Hollywood Las Vegas, LLC, No. 2:08-CV-00722, 2010 WL 2 5490775, at *3 (D. Nev. Nov. 8, 2010) (same). However, such a severe sanction requires the 3 Court to consider several factors: (a) the public’s interest in expeditious resolution of litigation; 4 (b) the court’s need to manage its docket; (c) the risk of prejudice to the other party; (d) the

5 public policy favoring disposition of cases on their merits; and (e) the availability of less drastic 6 sanctions. In re: Exxon Valdez, 102 F.3d 429, 433 (9th Cir.1996); see also Hyde & Drath v. 7 Baker, 24 F.3d 1162, 1166 (9th Cir.1994) (party seeking dismissal must also show that the non- 8 compliant party's failure to respond was the result of bad faith, willfulness, or fault). 9 Here, there is no pending motion to dismiss and no facts relating to any such non- 10 compliant opt-in plaintiff for the Court to consider. The Court declines to issue an advisory 11 opinion as to whether a non-compliant opt-in plaintiff will be dismissed from this action. 12 Accordingly, the Court DENIES Plaintiff’s motion for protective order (Dkt. 127). The 13 parties are ORDERED to again confer in good faith and to provide to the Court by February 14 17, 2022, an agreed upon sample percentage of the FSLA Collective, predicated on particular

15 characteristics of the FSLA Collective, with a selection process involving both Plaintiff and 16 Defendants. 17 DATED this 8th day of February, 2022. 18 A 19 BRIAN A. TSUCHIDA United States Magistrate Judge 20

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