Ferguson et al v. Randy's Trucking, Inc., No. 1:2015cv00697 - Document 36 (E.D. Cal. 2016)

Court Description: ORDER DENYING 25 Plaintiffs' Motion for Class Certification and Certification as a Collective Action Under the FLSA, signed by Magistrate Judge Jennifer L. Thurston on 3/11/2016. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 RONNY FERGUSON, ROGER MOELLMAN, AND STEVEN GIFFORD, on behalf of themselves and all others similarly situated, 13 Plaintiffs, 14 15 v. RANDY’S TRUCKING, INC. AND RANDY GRIFFITH, and 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-00697 - JLT ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION NAD CERTIFICATION AS A COLLECTIVE ACTION UNDER THE FLSA (Doc. 25) 18 Plaintiffs Ronny Ferguson, Roger Moellman, and Steven Gifford were formerly employed by 19 Randy’s Trucking, Inc. Plaintiffs assert Randy’s Trucking Inc., and Randy Griffith, the President of 20 Randy’s Trucking, are liable for wage and hour law violations and unfair business practices. 21 Accordingly, Roger Moellman, and Steven Gifford1 seek certification of a class pursuant to Rule 23 of 22 the Federal Rules of Civil Procedure to challenge the pay practices of Randy’s Trucking Inc. 2 (Doc. 23 25) Defendant opposes certification of a class, arguing Plaintiffs fail to demonstrate the requirements 24 of Rule 23 are satisfied. (Doc. 30) 25 26 The Court has read and considered the pleadings and supporting documents, and heard oral arguments by counsel on March 8, 2016. For the reasons set forth below, Plaintiffs’ motion for class 27 1 28 Ronny Ferguson does not seek to be a class representative, and apparently does not join in the motion. At the hearing, counsel clarified that Plaintiffs were not seeking class certification against Randy Griffith. Thus, here, “Defendant” is intended to refer only to Randy’s Trucking Inc., while “the defendants” refers to all defendants. 2 1 1 certification is DENIED. 2 I. Background Randy’s Trucking Inc., (“RTI”) is a company that “offers vacuum truck services, winch truck, 3 4 hauling, crane services, as well as [i]ndustrial services, tank sales and rentals.” (Doc. 25 at 6) 5 Plaintiffs assert that according to the company website, “RTI has extensive experience in servicing 6 drilling, production and work over rigs as well as all forms of lease work, transferring fluids from flow 7 back and frac tanks, as well as hauling oil to production facilities.” (Doc. 22 at 2-3, ¶ 11) Plaintiffs 8 allege RTI “also rents tanks to drilling companies and sells cement.” (Id. at 3, ¶ 12) Plaintiffs contend they were formerly employed as drivers for Defendant.3 (Doc. 22 at 2) 9 10 According to Plaintiffs, they worked “onsite at various drilling locations assisting with drilling and 11 extraction operations.” (Id., ¶ 14) Plaintiffs allege they spent “[a] significant portion” of their work 12 “doing tasks other than driving a truck.” (Id., ¶ 15) Rather, Plaintiffs contend “almost all their time 13 was spent at drilling locations and not driving a truck.” (Id.) Plaintiffs assert they “routinely worked 14 hours in excess of 12 hours in a day,” but “were only paid overtime after 40 hours in a week and were 15 never paid double time.” (Id., ¶¶ 19-20) 16 Ronny Ferguson and Roger Moellman initiated this action by filing a complaint on May 6, 17 2015. (Doc. 1) Steven Gifford joined the action when Plaintiffs file the first amended complaint on 18 October 6, 2015. Plaintiffs contend the defendants did not properly pay overtime wages and failed to 19 pay wages due upon termination. (See generally Doc. 22) Accordingly, Plaintiffs assert the 20 defendants are liable for failure to calculate overtime pursuant to Industrial Welfare Commission 21 Order No. 16-2001, California Code of Regulations, Title 8, § 11160; failure to pay wages due under 22 Cal. Labor Code § 203; failure to pay overtime in violation of 29 U.S.C. §§ 207 and 216; and unfair 23 business practices in violation of Cal. Bus. & Prof. Code §17200. (Id. at 8-12) The defendants filed 24 their answer to the First Amended Complaint on October 20, 2015. (Doc. 24) 25 II. 26 Request for Judicial Notice In connection with the opposition, Defendant requests the Court take judicial notice of: 27 3 28 Specifically, Ronny Ferguson “was employed by Defendants from December 1, 2009 through November 13, 2014;” Roger Moellman “was employed by Defendants from May 1, 2014 through November 30, 2014;” and Steven Gifford “was employed by Defendants from June 2007 through January, 2015.” (Doc. 22 at 2) 2 1. The Chapter 7 bankruptcy petition filed by Plaintiff Ronny Ferguson in In re Ronny Keith Ferguson, Case No. 15-1 0663-A-7, filed in the United States Bankruptcy Court for the Eastern District of California on February 25, 2015; 1 2 2. The Discharge of Debtor issued by the United States Bankruptcy Court in In re Ronny Keith Ferguson, Case No. 15-10663-A-7 on June 29, 2015; 3 4 3. The judgment entered in California Asparagus Growers Assoc. v. Industrial Welfare Comm’n of the State of California, Case No. 129734 filed in the Superior Court of California, County of San Joaquin, on or around July 21, 1977; 5 6 4. The decision issued by the Labor Commission in Salomon Ruiz Estamislao v. Glad-AWay Gardens. Inc., Case No. 13-49409, on August 29, 2014; 7 5. The California Department of Labor Standards Enforcement (“DLSE”) Opinion Letter sent from Assistant Labor Commissioner Don Craib dated August 4, 1981; 8 9 6. The DLSE Opinion Letter sent from Chief Deputy Labor Commissioner Albert Reyff dated November 21, 1986; and 10 7. The DLSE Opinion Letter sent from State Labor Commissioner Lloyd Aubry, Jr., dated May 14, 1987. 11 12 13 14 (Doc. 34 at 2) The Court may take judicial notice of a fact that “is not subject to reasonable dispute because it 15 (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily 16 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see 17 also United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The records of court 18 proceedings cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis 19 v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 20 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff’d, 645 F.2d 699 (9th Cir. 1981); see also Rodic v. Thistledown 21 Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). However, Mr. Ferguson’s bankruptcy 22 proceedings have no relevance given the fact that he is not a party to this motion. (Doc. 25 at 1, 6) 23 Thus, the request for the Court to take judicial notice of Mr. Ferguson’s bankruptcy proceedings is 24 DENIED. 25 The official records of the State of California, as contained in the Department of Industrial 26 Relations’ official website, are a source whose accuracy cannot reasonably be questioned, and judicial 27 notice may be taken of facts on a website of a government agency. See O’Toole v. Northrop Grumman 28 Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of 3 1 factual information found on the world wide web”); Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2 2003) (taking judicial notice of information on the website of a government agency); United States ex 3 rel. Dingle v. BioPort Corp., 270 F.Supp.2d 968, 972 (W.D. Mis. 2003) (“government documents are 4 generally considered not to be subject to reasonable dispute . . . This includes public records and 5 government documents available from reliable sources on the Internet”). As such, the DLSE Opinion 6 Letters, which are published on the website of the Department of Industrial Relations, are subject to 7 judicial notice. 8 9 10 Because the accuracy of the court records and DLSE documents cannot reasonably be questioned, the request for judicial notice is GRANTED. III. Legal Standards for Class Certification 11 A. 12 Class certification is governed by the Federal Rules of Civil Procedure, which provide: “One or 13 more members of a class may sue or be sued as representative parties on behalf of all.” Fed. R. Civ. P. 14 23(a). A class action is proper if: 15 16 Rule 23(a) Prerequisites (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 17 18 Fed. R. Civ. P. 23(a). In general, these prerequisites are referred to as numerosity, commonality, 19 typicality, and adequacy of representation, and “effectively limit the class claims to those fairly 20 encompassed by the named plaintiff’s claims.” General Telephone Co. of the Southwest v. Falcon, 457 21 U.S. 147, 155-56 (1982) (citing General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980)). 22 B. 23 When a proposed class satisfies the prerequisites of Rule 23(a), the Court must determine Rule 23(b) Certification 24 whether the class is maintainable under Rule 23(b). Leyva v. Medline Indus., 716 F.3d 510, 512 (9th 25 Cir. 2013); Narouz v. Charter Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). Under Rule 26 23(b)(1), a class is maintainable if there is a risk of inconsistent or varying adjudications from 27 “prosecuting separate actions by or against individual class members.” Id. In addition, a class may be 28 certified if “adjudications with respect to individual class members . . . would be dispositive of the 4 1 interests of other members not parties to the individual adjudications or would substantially impair or 2 impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1)(B). 3 A class is maintainable under Rule 23(b)(2) if “the party opposing the class has acted or refused 4 to act on grounds that apply generally to the class, so that final injunctive relief or corresponding 5 declaratory relief is appropriate responding the class as a whole.” Id. The Supreme Court explained, 6 “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to 7 each member of the class. . . [I]t does not authorize class certification when each member would be 8 entitled to an individualized award of monetary damages.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 9 2541, 2557 (2011). 10 Class certification under Rule 23(b)(3) allows for class certification in cases “in which class- 11 action treatment is not clearly called for as it is in Rule 23(b)(1) and (b)(2) situations.” Amchem 12 Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997). Thus, a class is maintainable under Rule 23(b)(3) 13 where “questions of law or fact common to the members of the class predominate over any questions 14 affecting only individual members,” and where “a class action is superior to other available methods 15 for fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). 16 C. 17 Parties seeking class certification bear the burden of demonstrating by a preponderance of the Burden of Proof and Evidentiary Submissions 18 evidence that Rule 23 is satisfied. Dukes, 131 S. Ct. at 2551; Doninger v. Pacific Nw. Bell, Inc., 564 19 F.2d 1304, 1308 (9th Cir. 1977); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 319 (3d Cir. 20 2008), as amended (Jan. 16, 2009). In Dukes, the Court held, “Rule 23 does not set forth a mere 21 pleading standard. A party seeking class certification must affirmatively demonstrate his compliance 22 with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, 23 common questions of law or fact, etc.” (Emphasis in the original) Notably, in 2003, Rule 23 was 24 amended to eliminate the practice of “conditional class certification.” Rather, the Advisory Notes to 25 this amendment indicates, “A court that is not satisfied that the requirements of Rule 23 have been met 26 should refuse certification until they have been met.” In re Hydrogen Peroxide Antitrust Litig., 552 27 F.3d at 319, the Court held, “While these amendments do not alter the substantive standards for class 28 certification, they guide the trial court in its proper task-to consider carefully all relevant evidence and 5 1 make a definitive determination that the requirements of Rule 23 have been met before certifying a 2 class.” It is not enough for the court to assume the Rule 23 factors have been shown or can be shown; 3 they must be shown. 4 The Court must conduct a “rigorous analysis,” which may require the Court “to probe behind 5 the pleadings before coming to rest on the certification question.” Dukes, 131 S. Ct. at 2551 (quoting 6 Falcon, 457 U.S. at 160-61). “Factual determinations necessary to make Rule 23 findings must be 7 made by a preponderance of the evidence. In other words, to certify a class the district court must find 8 that the evidence more likely than not establishes each fact necessary to meet the requirements of Rule 9 23. See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d 10 Cir.2008).” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 320. 11 IV. 12 Discussion and Analysis Plaintiffs seek certification of a class defined as: “All drivers of Randy’s Trucking employed at 13 any time after May 6, 2011.” (Doc. 25 at 1) In addition, Plaintiffs request certification of a sub-class 14 defined as: “All drivers Randy’s Trucking whose employment has ended at least once since May 6, 15 2012.” (Id. at 2) Plaintiffs contend the prerequisites of Rule 23(a) are satisfied, and certification of the 16 proposed classes is appropriate under both Rule 23(b)(1) and (b)(3). (Id. at 9) 17 A. 18 Prior to evaluating Plaintiffs’ proposed classes under Rule 23, the Court must determine Article III Standing 19 whether Plaintiffs have standing to assert their claims. As the Ninth Circuit explained, standing “is a 20 jurisdictional element that must be satisfied prior to class certification. LaDuke v. Nelson, 762 F.2d 21 1318, 1325 (9th Cir. 1985). Consequently, the Court should address the issue of standing prior to 22 certifying a class. See Easter v. Am. West Fin., 381 F.3d 948, 962 (9th Cir.2004). 23 “[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold 24 requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City 25 of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). The Ninth Circuit explained, “[T]he Constitution 26 mandates that prior to our exercise of jurisdiction there exist a constitutional ‘case or controversy,’ that 27 the issues presented are ‘definite and concrete, not hypothetical or abstract.’” Thomas v. Anchorage 28 Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (quoting Ry. Mail Assoc. v. Corsi, 326 U.S. 6 1 88, 93 (1945)). To satisfy the “case or controversy” requirement, a plaintiff must establish standing 2 under Article III to bring suit. Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 3 2010); see also Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 938 (2007) (“standing is an 4 essential and unchanging part of the case-or-controversy requirement of Article III”). 5 To establish standing—and thus that there is an actual case or controversy—a plaintiff “must 6 demonstrate (1) an injury-in-fact, (2) causation, and (3) a likelihood that the injury will be redressed by 7 a decision in the plaintiff’s favor.” Human Life, 624 F.3d 1000 (citing Lujan v. Defenders of Wildlife, 8 504 U.S. 555, 560 (1992)). In a proposed class action, “if none of the named plaintiffs purporting to 9 represent a class establishes the requisite of a case or controversy with the defendants, none may seek 10 relief on behalf of himself or any other member of the class.” Lierboe v. State Farm Mut. Auto. Ins. 11 Co., 350 F.3d 1018, 1022 (9th Cir. 2003). 12 Furthermore, a class must be defined to include only individuals with Article III standing. See 13 Dukes,131 S.Ct. at 2552 (acknowledging “the necessity” to exclude putative class members who 14 “lack[ed] standing to seek injunctive or declaratory relief” from a proposed class). As such, the Ninth 15 Circuit has determined that “no class may be certified that contains members lacking Article III 16 standing.” Mazza v. Am. Honda Motor, 666 F.3d 581, 594 (9th Cir. 2012) (quoting Denney v. Deutsche 17 Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). Similarly, other circuits have determined class 18 certification was not appropriate when it was not clear that class members had Article III standing for 19 the claims presented. See, e.g., Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980) (affirming the 20 denial of class certification where it was not clear “the proposed class members have all suffered a 21 constitutional or statutory violation warranting some relief”); Avritt v. Reliastar Life Ins. Co., 615 F.3d 22 1023, 1034 (8th Cir. 2010) (“a class cannot be certified if it contains members who lack standing”). 23 Consequently, the Court must determine whether the class proposed by Plaintiff contains only 24 individuals who have standing under Article III. 25 Defendant does not dispute that Plaintiffs have standing under Article III, but assert that the 26 proposed class of drivers is overbroad because it is not “limited to members who possess standing.” 27 (Doc. 30 at 7) Defendant argues the class definition includes individuals who “have not suffered any 28 demonstrable injury.” (Id. at 21) As Defendant asserts: 7 1 2 The issues raised in this action are: 1) whether the “regular rate” for purposes of overtime was miscalculated because it did not factor “safety bonuses” in the calculation, 2) whether overtime for “Shop” hours was improperly calculated, and 3) whether Plaintiffs are owed double time in certain overtime scenarios. 3 4 (Id. at 22) Accordingly, drivers whom Defendant did not properly pay overtime have suffered an 5 injury. Drivers whom Defendant properly paid overtime have not. See Sierra Club v. Morton, 405 U.S. 6 727, 733-34 (1972) (“palpable economic injuries have long been recognized as sufficient to lay the 7 basis for standing”); see also Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996) (“[e]conomic injury is 8 clearly a sufficient basis for standing”). 9 Significantly, the Court may cure the defects of a proposed class definition where the class is 10 overbroad. See, e.g., Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482-83 (N.D. Cal. 2011); see also 11 Powers v. Hamilton County Public Defender Com’n, 501 F.3d 592, 619 (6th Cir. 2007) (“district courts 12 have broad discretion to modify class definitions”); In re Monumental Life Ins. Co., 365 F.3d 408, 414 13 (5th Cir. 2004) (“district courts are permitted to limit or modify class definitions to provide the 14 necessary precision”). Though Defendant contends that “[i]t would be trivial to redraft the class 15 definition to encompass only those Drivers which actually possess standing” (Doc. 30 at 22), the Court 16 exercises its discretion here to amend the proposed class definition to ensure all members have 17 standing. Accordingly, for purposes of this motion, the class definition is amended to include: All 18 drivers employed after May 6, 2011 who were not properly paid for overtime. 19 B. 20 A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. Numerosity 21 23(a)(1). This requires the Court to consider “specific facts of each case and imposes no absolute 22 limitations.” EEOC, 446 U.S. at 330. Although there is no specific numerical threshold, joining more 23 than one hundred plaintiffs is impracticable. See Immigrant Assistance Project of Los Angeles Cnt. 24 Fed’n of Labor v. INS, 306 F.3d 842, 869 (9th Cir. 2002) (“find[ing] the numerosity requirement . . . 25 satisfied solely on the basis of the number of ascertained class members . . . and listing thirteen cases in 26 which courts certified classes with fewer than 100 members”); see also Welling v. Alexy (In re Cirrus 27 Logic Sec.), 155 F.R.D. 654, 656 (N.D. Cal. 1994) (noting that courts have certified classes with 50-60 28 members). 8 1 Plaintiffs claim the numerosity requirement is satisfied “because there are 80 putative class 2 members.” (Doc. 25 at 10, emphasis omitted) Specifically, Mr. Gifford reports: “During the period 3 of May 6, 2011 to January 2015 when I left employment, I was able to observe other drivers. There 4 were between 50-80 other individuals working as Drivers during this period.”4 (Doc. 15-1 at 2, 5 Gifford Decl. ¶ 3) Importantly, however, Plaintiffs fail to offer any information regarding the number 6 of truck drivers who were required to work overtime, or whose overtime pay was not properly 7 calculated by Defendant. 8 For example, Plaintiffs contend overtime was improperly calculated for several reasons 9 including: (1) the failure to include safety bonuses when determining the employee’s overtime hourly 10 rate; (2) the failure to pay double time to drivers working more than a 12-hour day; and (3) the failure 11 to pay overtime on “shop time” when the total hours worked exceeded 405 in a week. (Doc. 25 at 7-8) 12 For these various scenarios, Plaintiffs offer no evidence whether each of the 50-80 drivers experienced 13 at least one of these practices. Notably, the declarations of Plaintiffs do not address whether they 14 worked in the shop or that they exceeded 12-hours worked in a day.6 Likewise, while Defendant’s 15 policy indicates that each ye company would recognize employees who demonstrate “exceptional 16 work and/or safety consciousness [that] represents the standards of efficiency and safety [the company 17 is] striving for . . .” (Doc. 25-9 at 2) The policy does not dictate that safety bonuses would be given if 18 no employee did so. Likewise, there is no assurance that every employee would receive a safety bonus 19 during his tenure. Indeed, there is evidence that Mr. Gifford received a safety bonus one time but no 20 evidence whether Mr. Moellman ever did. Thus, the Court cannot determine whether the class is 21 sufficiently numerous. 22 23 Similarly, Plaintiffs fail to provide any information regarding the number of drivers whose employment was terminated “at least once since May 6, 2012.” The Court is unable to speculate as to 24 25 26 27 28 4 Although Defendant asserts Mr. Gifford “fails to establish the foundation for his testimony” that there were 5080 drivers (Doc. 30 at 23), Mr. Gifford clearly states his testimony is based upon his personal observation while he was employed by Randy’s Trucking. Accordingly, Defendant’s objection is OVERRULED. 5 Plaintiffs contend that Defendant would pay overtime when the employee’s truck hours exceeded 40 hours but would not pay overtime when the employee’s shop time caused the work week to exceed 40 hours. (Doc. 25 at 8) 6 Plaintiffs provide time card evidence but provide no interpretation of them. In light of Defendant’s evidence— that drivers were allowed to bill hours not actually worked—due to “flat” rate jobs or cancelled jobs (where they are allowed to bill for hours not worked)—exactly what to make of these time cards. 9 1 the number of drivers who have standing or would be members of either class. See Dukes, 131 S. Ct. at 2 2551 (plaintiffs “must be prepared to prove that there are in fact sufficiently numerous parties”); see 3 also Schwartz v. Upper Deck Co., 183 F.R.D. 672, 681 (S.D. Cal. 1999) (“Plaintiffs must show some 4 evidence of or reasonably estimate the number of class members”); see also Hayes v. Wal-Mart Stores, 5 Inc., 725 F.3d 349, 358 (3d Cir. 2013) (“where a putative class is some subset of a larger pool, the trial 6 court may not infer numerosity from the number in the larger pool alone”). Consequently, Plaintiffs 7 have failed to demonstrate the class and its sub-class satisfy the numerosity requirement of Rule 23(a). 8 C. 9 Rule 23(a) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality 10 The commonality requirement has been construed permissively; not all questions of law and fact need 11 to be common. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). “However, it is 12 insufficient to merely allege any common question.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 13 981 (9th Cir. 2011). Commonality must be shown by a “common contention” that is “of such a nature 14 that it is capable of classwide resolution—which means that determination of its truth or falsity will 15 resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. 16 at 2551. 17 Plaintiffs contend the commonality requirement is satisfied because the there is a common 18 question of law to be resolved: whether drivers should be paid under Wage Order Number 9 or 19 Number 16. (Doc. 25 at 10) Plaintiffs note that Wage Order Number 9 applies to the “Transportation 20 Industry,” which includes: 23 any industry, business, or establishment operated for the purpose of conveying persons or property from one place to another whether by rail, highway, air, or water, and all operations and services in connection therewith; and also includes storing or warehousing of goods or property, and the repairing, parking, rental, maintenance, or cleaning of vehicles. 24 (Id., quoting Cal. Code of Regulations, Title 8, § 13090) On the other hand, Wage Order Number 16 25 covers: 21 22 26 27 28 all job classifications associated with the exploration or extraction of oil, gas, or water resources work, including but not limited to the installation, establishment, reworking, maintenance or repair of wells and pumps by boring, drilling, excavating, casting, cementing and cleaning for the extraction or conveyance of fluids such as water, steam, gases, or petroleum. 10 1 (Id. at 11, quoting Cal. Code of Regulations, Title 8, § 13160) In addition, Wage Order Number 16 2 includes a supremacy clause, indicating it “supersedes any industry or occupational order for those 3 employees employed in occupations covered by this order.” (Id.) Plaintiffs contend “they are not 4 covered by Wage Order #9 because they do not transport anything “by rail, highway, air, or water,” and 5 instead “operate vehicles at well sites that are off-road.” (Id. at 11) 6 Defendant argues that “the issue of whether Wage Order #16 applies to Drivers” fails to satisfy 7 the commonality requirement because “it is not central to the validity of Plaintiffs’ claims” and “is not 8 capable of resolution on a class-wide basis. (Doc. 30 at 25, 26) (emphasis omitted) Defendant explains 9 that its drivers have a wide variety of duties, and “the wage order applicability issue must be resolved 10 on an individualized basis for each Driver, by analyzing each Driver’s day-to-day job duties.” (Id. at 11 26) Specifically, Defendant argues: 12 13 14 15 16 17 [N]one of the tasks performed by Drivers for oil industry clients constitutes “drilling occupation” work. To the extent that Plaintiffs argue otherwise, Defendants contend that individual inquiry is necessary to classify which specific jobs can fairly be characterized as “drilling occupation” work. A simple delivery of water from RTI’s yard to a storage tank on a client's yard cannot fairly be characterized as “drilling occupation” work, particularly where the delivered water is used for purposes incidental to oil drilling, such as cleaning tanks. To the extent that Plaintiffs can successfully argue that other jobs exist which can be characterized as "drilling occupation" work, Plaintiffs would bear the burden of identifying these jobs, presenting the facts which show that the jobs involve “drilling occupation” work, and segregating the days Drivers performed these hypothetical jobs from the days Drivers performed traditional, non-“drilling occupation” delivery jobs. This process necessarily involves intensive, individualized, day-to-day inquiry. 18 19 20 (Id. at 27) Notably, Kyle Griffith, the operations manager for RTI, claims its trucks are used to “transport[] 21 materials such as water, mud, rock, gravel, sand, dirt, road base, heavy equipment, storage containers, 22 mobile officers, and single wide trailer houses for clients.” (Doc. 31 at 2, Griffith Decl. ¶ 4) He reports 23 that RTI drivers use three different trucks: “vacuum trucks, winch trucks, and crane trucks.” (Doc. 31 24 at 3, Griffith Decl. ¶ 13) According to Mr. Griffith, “[t]he time spent in each type of truck varies from 25 Driver to Driver,” and “some Drivers predominantly use vacuum trucks, while others predominantly 26 use winch trucks.” (Id., ¶¶ 14-15) Mr. Griffith explained “[t]he majority of work performed by Drivers 27 is performed on a will-call basis” and, as a result,” “even among Drivers that drive the same type of 28 truck, the job duties and duration of each job duty will vary from day-to-day.” (Id., ¶¶ 17-18) 11 1 However, the job duties could include hauling services for the oil industry, environmental companies, 2 utility companies, farms, airports, and residential developers. (Id. at 2, ¶ 6) 3 Plaintiffs reported they “operated a Vacuum Truck and a Winch Truck.” (Doc. 25-1 at 1, 4 Gifford Decl. ¶ 2; Doc. 25-2 at 1, Moellman Decl. ¶ 2) Mr. Gifford reports: “As a driver, I would pump 5 various fluids, such as mud and salt water, to drilling rigs, production rigs, and work over rigs. I would 6 also move drilling rigs to new locations and setup the rig to drill for new oil.” (Doc. 25 at 2, Gifford 7 Decl. ¶ 4) He asserts that “[t]he majority of [his] time was spent operating a truck and its various 8 pumps or other equipment at a particular site and not spent hauling cargo from one location to another.” 9 (Id., ¶ 5) Similarly, Mr. Moellman reported a “majority of [his] time” was not spent hauling cargo, but 10 11 rather “at a particular site.” (Doc. 25-2 at 2, Moellman Decl. ¶ 5) Significantly, Plaintiffs fail to provide any evidence regarding the duties performed by other 12 RTI employees who operated the vacuum, winch, and crane trucks. The Court cannot presume that the 13 job tasks performed by Plaintiffs were the same tasks performed by other drivers—who may have been 14 providing services for other RTI clients that did not involve remaining at one location or providing 15 services for the oil industry. 16 On the other hand, even if Plaintiffs are successful in demonstrating Wage Order 16 applies, 17 they have not demonstrated whether this determination would make a difference to the entire class. For 18 example, if few work more than a 12-hour day, resolution of this question would not be common to all. 19 As noted above, Plaintiffs have provided no evidence as to how many of the drivers actually work more 20 than 12 hours in a day as opposed to noting more than 12 hours on a time card for purposes of obtaining 21 benefits provided by payment policies, e.g. flat rate trucking jobs or cancelled jobs. 22 Given the lack of evidence regarding the commonality of job duties performed by RTI drivers 23 or information about whether generally, drivers actually work more than 12 hours in a day, Plaintiffs 24 have failed to demonstrate the question of which wage order applies is capable of class-wide resolution. 25 Consequently, this factor weighs against class certification. See Dukes, 131 S. Ct. at 2551 (explaining 26 commonality is not satisfied by the raising of a common question, but the ability “to generate common 27 answers”, and “[d]issimilarities within the proposed class are what have the potential to impede the 28 generation of common answers”) (emphasis in original). 12 1 D. 2 The typicality requirement demands the “claims or defenses of the representative parties are Typicality 3 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A claim or defense is not 4 required to be identical, but rather “reasonably co-extensive” with those of the absent class members. 5 Hanlon, 150 F.3d at 1020. “The test of typicality is whether other members have the same or similar 6 injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether 7 other class members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 8 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks and citation omitted); see also Kayes v. 9 Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995) (typicality is satisfied when named plaintiffs have 10 11 the same claims as other members of the class and are not subject to unique defenses). Plaintiffs argue the typicality requirement is satisfied because “the Drivers were all subject to 12 the same pay provisions for overtime and double time pay.” (Doc. 25 at 12) Plaintiffs contend: “Each 13 of the representatives recorded their time on the time card, as did all the Drivers. These time cards show 14 days in which more than 12 hours were work. [Citation] In addition, they received bonuses that were 15 not included in computing the regular rate of pay.” (Id., internal citation omitted) 16 On the other hand, Defendant contends that “typicality has not been established” because 17 Plaintiffs fail to present evidence that all RTI drivers performed oil drilling work. (Doc. 30 at 35) In 18 addition, Defendant argues the typicality requirement is not satisfied because “all three named Plaintiffs 19 will be preoccupied with an unclean hands defense unique to their claims ... [and] attacks on their 20 credibility.” (Id.) As Defendant argues, courts have determined that, 21 22 23 24 Typicality may be found lacking “if ‘there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.’ ” Hanon, 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990)); see also J.H. Cohn & Co. v. Am. Appraisal Assoc., Inc., 628 F.2d 994, 999 (7th Cir.1980) (“[E]ven an arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiff’s representation”). 25 26 Pryor v. Aerotek Scientific, LLC, 278 F.R.D. 516, 527 (C.D. Cal. 2011). However, a mere unique 27 defense is not sufficient to find the element not satisfied. 28 [T]he Ninth Circuit has made clear, the key question is whether a class representative is subject to a unique defense, such that she will be “preoccupied” and whether the defense 13 1 2 3 will become the focus of the litigation to the detriment of the class. Hanon, 976 F.2d at 508. To be typical, a class member need not prove that she is immune from any possible defense, or that her claim will fail only if every other class member's claim also fails. Instead, she must establish that she is not subject to a defense that is not “typical of the defenses which may be raised against other members of the proposed class.” Id.; see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984–85 (9th Cir.2011). 4 5 6 Id. at 528. Defendant contends Plaintiffs have engaged in “dishonest timekeeping practices,” by 7 “fraudulent inflating the number of hours worked on their Daily Time Cards.” (Doc. 30 at 38, 39, 8 emphasis omitted) Accordingly, Defendant argues that “[t]he affirmative defense of unclean hands 9 applies uniquely to the claims of Ferguson, Moellman, and Gifford. (Id. at 38) However, Defendant 10 fails to demonstrate that the unique defenses would preoccupy them, or that the hours Plaintiffs 11 worked would become the focus of the litigation, rather than the duties performed. 12 Regardless, Plaintiffs fail to present evidence that their claims are co-extensive with those of the 13 putative class members. Although all RTI drivers have been subject to the same policies and 14 procedures, Plaintiffs have not presented evidence that the job duties they performed were similar to 15 those of other drivers.7 See Washington v. Joe’s Crab Shack, 271 F.R.D. 629 (N.D. Cal. 2010). 16 Consequently, the Court cannot find Plaintiffs “have the same or similar injury” as the putative class, 17 and this factor weighs against class certification. 18 E. 19 Absentee class members must be adequately represented for judgment to be binding upon them. Adequacy of Representation 20 Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). Accordingly, this prerequisite is satisfied when the 21 “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 22 23(a)(4). “[R]esolution of this issue requires that two questions be addressed: (a) do the named 23 plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the 24 named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” In re Mego 25 7 26 27 28 Moreover, as discussed above, Plaintiffs’ original class definition may include drivers who were not required to work overtime, or who do not have standing. Where some of the class members have not suffered any injury, though the class representative has, the typicality requirement of Rule 23(a) is not satisfied. See, e.g., O’Neill v. Gourmet Sys. of Minnesota, Inc., 219 F.R.D. 445, 453 (W.D. Wis. 2002) (finding no typicality when the class representative had standing but many of the proposed class members suffered no injury); In re New Motor Vehicles Canadian Export, No. MDL 1532, 2006 WL 623591, at *3 (D. Me. Mar. 10, 2006) rev’d on other grounds, 522 F.3d 6, 27-28 (1st Cir. 2008) (assessing standing under typicality). 14 1 Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020). 2 Because Plaintiffs have not satisfied the prerequisites of commonality and typicality under 3 Rule 23(a), Plaintiffs would not be proper representatives of the class. See Stearns v. Ticketmaster 4 Corp., 655 F.3d 1013, 1027 (9th Cir. 2011) (affirming a finding that the named plaintiffs “are not 5 proper class representatives” because their claims were “not typical of the class members”). Therefore, 6 the Court finds Plaintiffs fail to carry the burden to demonstrate the requirement is satisfied. 7 V. 8 9 FLSA Collective Action The FLSA requires employees in interstate commerce to be paid overtime at the rate of one and one-half times their regular hourly rate for hours worked over forty in a workweek. 29 U.S.C. § 10 207(a)(1). An aggrieved employee may bring a collective action on behalf of himself and others 11 “similarly situated” based on an employer’s failure to adequately pay overtime wages. 29 U.S.C. § 12 216(b). To participate in the collective action, employees must opt-in to the litigation. Id. This means, 13 of course, employees must be given notice of the action to evaluate whether to do so. “Determining 14 whether a collective action is appropriate is within the discretion of the district court.” Leuthold v. 15 Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). 16 For an action to proceed as a collective action, the Court must first determine whether the 17 named plaintiffs are similarly situated to the other aggrieved employees. Leuthold v. Destination 18 America, Inc., 224 F.R.D. 462, 466 (N.D.Cal.2004). Generally, courts follow one of two approaches 19 to make this determination depending upon the posture of the case. Wynn v. National Broadcasting 20 Co., 234 F.Supp.2d 1067 (C.D.Cal.2002). In cases falling under the first tier, or “notice stage”, 21 generally, little discovery has occurred so the question is determined primarily upon the pleadings and 22 the declarations of the plaintiffs. Bishop v. Petro-Chem. Transp., LLC, 582 F. Supp. 2d 1290, 1294 23 (E.D. Cal. 2008). Under the second tier approach, discovery has largely completed and the parties are 24 better situated to provide concrete evidence shedding light on the determination. Id. at 1294-1295. 25 In Bishop, the “preliminary scheduling order limited the initial merits-based discovery to [the 26 plaintiff], and as to the issue of class certification.” Id., 582 F. Supp. 2d at 1295. The Court noted 27 discovery was “not complete, and the case [was] not ready for trial.” Id. Thus, the Court concluded the 28 action was “more at the notice stage due to the limitation in discovery and pretrial preparation.” Id. 15 1 Similarly, here, discovery is not complete because the deadline for non-expert discovery is May 6, 2 2016. (See Doc. 16 at 1). Accordingly, the Court finds the action remains at the notice stage for 3 purposes of determining whether Plaintiffs may proceed with a collective action on their FLSA claim. 4 At the notice stage, a plaintiff’s burden is slight to show the putative class is “similarly 5 situated,” but “does require some evidentiary support.” Bishop, 582 F.Supp.2d at 1290. Therefore, 6 “unsupported assertions of widespread violations are not sufficient to meet Plaintiff’s burden.” 7 Edwards v. City of Long Beach, 467 F. Supp. 2d 986, 990 (C.D. Cal. 2006) (citing Freeman v. Wal- 8 Mart Stores, Inc., 256 F. Supp. 2d 941, 945 (W.D. Ark. 2003); Bernard v. Household Intern., Inc., 231 9 F. Supp. 2d 433, 435 (E.D. Va. 2002)). Instead, a named plaintiff must identify some evidence to 10 demonstrate that he or she and other potential plaintiffs were victims of a common policy or plan that 11 violated the law. Misra v. Decision One Mortg. Co., LLC, 673 F. Supp. 2d 987, 993 (C.D. Cal. 2008). 12 For example, in Bishop, the plaintiff asserted he and other truck drivers “regularly worked in 13 excess of forty hours per week without overtime compensation,” and sought to proceed with a 14 collective action. Id. 582 F.Supp.3d at 1295. Court determined the plaintiff failed to meet his burden 15 where the plaintiff testified he was not paid proper overtime, but filed a declaration that was “entirely 16 deficient in the similarities of the truck drivers.” Id. at 1296. The Court explained: 17 18 19 20 21 22 23 First, the declaration does not include any evidence which indicates that the other drivers who haul in California were improperly paid for their work. Leo Bishop states that he was not paid overtime, but does not offer any evidence of other workers who were not paid overtime. He does not present evidence of a company wide policy to deny overtime compensation to those who are entitled to such compensation. Further, Plaintiff Leo Bishop's declaration does not state any facts as to other potential class members similarly situated as him. He does not present any evidence of other truck drivers purported goods or the routes that the truck drivers drove. While the proposed class is "truck drivers," all drivers did not drive similar products or similar routes for similar customers. The evidence before the Court is that plaintiff was dedicated driver to Chevron, a PetroChemical customer, at the Montebello facility. There is no evidence before the Court that any other driver is similarly dedicated. Thus, the declaration does not support the similarity of the products or routes performed by the similar truck drivers. 24 Id. In addition, the plaintiff identified deposition testimony that failed “to support the failure to pay 25 overtime, the similarity of routes, similarity of the drivers, or other facts.” Id. 26 Here, Plaintiffs contend that “all the individuals in this case are similarly situated in that they 27 were subject to the same policies for computing the regular-rate-of-pay.” (Doc. 25 at 15) Specifically, 28 Plaintiffs assert “all overtime was paid at 1.5 times the regular hourly rate of pay, and no computation 16 1 was made for additional payments.” (Id.) Significantly, however, Plaintiffs fail to identify any 2 evidence to support these assertions, or that they were entitled to additional payments. In their 3 declarations, Plaintiffs fail to address overtime pay, or provide any information indicating other drivers 4 were not provided the proper overtime under the FLSA. (See generally Doc. 25-1; Doc. 25-2) Neither 5 Mr. Gifford nor Mr. Moellman discussed the jobs performed by other drivers, the hours worked, or the 6 pay received. Rather, their declarations are limited to the jobs the jobs each performed. The only 7 mention of other employees is plaintiffs’ estimation that the company employed “50-80 other 8 individuals working as Drivers” during the course of their employment. (See id.) Because the 9 plaintiffs fail to address the similarity of tasks undertaken by drivers or whether they observed other 10 drivers working overtime without compensation, the evidence is insufficient to support a conclusion 11 that other drivers are similarly situated to the named plaintiffs at this time. See Bishop, 582 F.Supp.3d 12 at 1296; Edwards, 467 F. Supp. 2d at 990. Thus, the Court declines to certify this matter as a 13 collective action under the FLSA. 14 VI. CONCLUSION AND ORDER 15 As set forth above, Plaintiffs fail to demonstrate class certification is appropriate for the 16 proposed class and subclass. First, Plaintiff failed to establish the numerosity requirement was satisfied 17 for either class. Even if the Court assumed the classes were sufficiently numerous, Plaintiffs fail to 18 present evidence demonstrating commonality or typicality of the claims. Therefore, the Court declines 19 to discuss whether these classes satisfy Rule 23(b). See Amchem Prods., 521 U.S. at 614 (explaining a 20 court only reaches the requirements of Rule 23(b) when a party seeking class certification demonstrates 21 the proposed classes satisfy the prerequisites of Rule 23(a)). Further, Plaintiffs fail to produce any 22 evidence that they are similarly situated to other employees. 23 24 Based upon the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ motion for class certification and certification as a collective action is DENIED. 25 26 27 28 IT IS SO ORDERED. Dated: March 11, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17

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