Villarreal v. Caremark LLC

85 F. Supp. 3d 1063, 2015 U.S. Dist. LEXIS 18548, 2015 WL 545522
CourtDistrict Court, D. Arizona
DecidedFebruary 2, 2015
DocketNo. CV-14-00652-PHX-DJH
StatusPublished
Cited by26 cases

This text of 85 F. Supp. 3d 1063 (Villarreal v. Caremark LLC) 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
Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 2015 U.S. Dist. LEXIS 18548, 2015 WL 545522 (D. Ariz. 2015).

Opinion

ORDER

DIANE J. HUMETEWA, District Judge.

Pending before the Court is a Motion to (1) Amend the Court’s December 17, 2014 Order to Certify it for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and (2) Stay the Action Pending Interlocutory Appeal (Doc. 52) by defendant Caremark, L.L.C. (“Caremark”).1 After the filing of Plaintiffs Response (Doc. 55) and Care-mark’s Reply (Doc. 58), this motion was fully briefed on January 20, 2015.

I. Background

On December 17, 2014, this Court granted the named plaintiffs Motion for Conditional Certification and Distribution of Judicial Notice (Doc. 36) in this Fair Labor Standards Act (“FLSA”) case. In so doing, the court “[d]eclined to consider Care-mark’s declarations asserting that there are differences been Plaintiff Villarreal and the putative class members[.]” Villarreal v. Caremark LLC, 66 F.Supp.3d 1184, 1191, 2014 WL 7184014, at *4 (D.Ariz. Dec. 17, 2014). The Court did so for primarily two reasons. First, it found that Caremark’s proffered declarations were “an attempt to show ‘disparate factual and employment settings of the individual plaintiffs.’ ” Id. (quoting Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 628 (E.D.Cal.2009) (internal quotation [1066]*1066marks and citations omitted)). Therefore, because “Caremark’s declarations pertained] to the second, and not the first tier of conditional class certification, this Court decline[d] to consider them at” that first tier. Id. (citing Benedict [v. Hewlett-Packard Co.], 2014 WL 587135, at *12 n. 33 [ (N.D.Cal. Feb. 13, 2014) ] (“The Court further notes that it need not even consider HP’s evidence at the notice-stage, as various courts in this Circuit have held.”) (citing, inter alia, Luque v. AT & T Corp., 2010 WL 4807088, at *5 (N.D.Cal. Nov. 19, 2010) (disregarding thirty declarations submitted by defendants in opposition to motion for conditional certification!],] stressing that “[c]ourts need not even consider evidence provided by defendants at this [notice] stage[]”); Kress, 263 F.R.D. at 628 (“In determining whether plaintiffs have met this standard, courts need not consider evidence provided by defendants.”))).

Second, the Court explained, “[d]eclining to consider Caremark’s declarations asserting that there are differences between Plaintiff Villarreal and the putative class members is consistent with the view ‘that the question at this stage is not whose evidence regarding commonality is more believable, but simply whether plaintiffs have made an adequate threshold showing’ that there are substantially similar putative class members.” Id. (internal quotation marks and citations omitted). The Court also found “noteworthy ... ‘[t]he fact that a defendant submits competing declarations will not as a general rule preclude conditional certification.’ ” Id. (quoting Harris v. Vector Marketing Corp., 716 F.Supp.2d 835, 838 (N.D.Cal.2010) (citing Hipp [v. Liberty Nat. Life Ins. Co.], 252 F.3d [1208,] at 1219 [ (11th Cir.2001) ] (emphasis added); see also Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1128 (N.D.Cal.2009) (internal quotation marks and citation omitted) (where plaintiffs met their burden at the notice sta[g]e, the Court did not consider Defendant’s fifty-four declarations, even if “[i]t may be true that the evidence will later negate plaintiffs’ elaims[]”); Williams v. U.S. Bank Nat. Ass’n, 290 F.R.D. 600, 613 (E.D.Cal.2013) (“[T]he cases indicate [it] is not appropriate ... to consider contradictory evidence at th[e] [notice] stage[.]”)))

At the same time, however, the Court stressed that its “holding should not be construed in any way as limiting Care-mark’s proof at the second stage of class certification.” Villarreal, 66 F.Supp.3d at 1191, 2014 WL 7184014, at *5. Continuing, the Court wrote that it “will closely consider ‘the disparate factual and employment settings of the individual plaintiffs’ if and when [Caremark] makes a motion to de-certify, as that fact-specific analysis is appropriate for the second-stage.’ ” Id. (quoting Benedict, 2014 WL 587135, at *2) (quoting in turn Flores v. Velocity Exp., Inc., 2013 WL 2468362, at *7 (N.D.Cal. June 7, 2013)) (citing Camp v. Progressive Corp., 2002 WL 31496661, at *4 (E.D.La. Nov. 8, 2002)) (holding that “the existence of some variations between potential claimants is not determinative of lack of similarity at the notice-stage.”) (emphasis in original) (footnotes omitted).

Now Caremark is seeking to have the Court certify the Conditional Class Certification Order to allow for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). More specifically, Caremark is seeking certification of the following issue, which it deems to be an “important and controlling issue of law:

When deciding whether to authorize notice of a putative collective action under the FLSA, may a district court ignore relevant evidence presented by a defendant who opposes the sending of notice, and choose instead to rely exclu[1067]*1067sively on evidence offered by the plaintiff?

Mot. (Doc. 52) at 4:9-12.

II. Discussion

A. Legal Standards

Generally, the United States Courts of Appeals have jurisdiction over appeals from “final decisions of the district courts.” See 28 U.S.C. § 1291. Congress created an exception to that final-judgment rule, however, in 28 U.S.C. § 1292(b). “ ‘Section 1292(b) provides a mechanism by which litigants can bring an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals.’ ”2 Eight v. Eskanos & Adler, P.C., 2007 WL 173825, at *2 (S.D.Cal. Jan. 8, 2007) (quoting In re Cement Antitrust, 673 F.2d 1020, 1025-26 (9th Cir.1982) (en banc)). Certification of a non-appealable order under section 1292(b) is appropriate where the order (1) “involves a controlling question of law[;]” (2) “as to which there is a substantial ground for difference of opinion[;]” and (3) “an immediate appeal from the order may materially advance the ultimate termination of the litigation[.]” See 28 U.S.C. § 1292(b); see also In re Cement, 673 F.2d at 1026. “All three requirements must be met for certification to issue[ ]” under that statute. Eight, 2007 WL 173825, at *2 (citation omitted). Caremark, as “[t]he party seeking certification[,] has the burden of showing that exceptional circumstances justify a departure from the ‘basic policy of postponing appellate review until after the entry of a final judgment.’ ” See Fukuda v. Cnty. of Los Angeles, 630 F.Supp. 228, 229 (C.D.Cal.1986) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463

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85 F. Supp. 3d 1063, 2015 U.S. Dist. LEXIS 18548, 2015 WL 545522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/villarreal-v-caremark-llc-azd-2015.