Cuevas, et al v. Dias & Fragoso, Inc., No. 1:2017cv00357 - Document 26 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Plaintiffs' Motion for Collective Certification and Issue Notice (Doc. 21). Referred to Judge O'Neill; Objections to F&R due within fourteen (14) days after being served with the Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. signed by Magistrate Judge Barbara A. McAuliffe on 4/9/2018. (Herman, H)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 ROSALIE CUEVAS, ADOLFO GOMEZMORENO, REYNALDO TOLANO, and AGUSTIN AMBRIZ, on behalf of themselves and on behalf of all other similarly situated individuals, 14 Plaintiffs, 15 16 17 18 Case No. 1:17-cv-00357-LJO-BAM FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFFS’ MOTION FOR COLLECTIVE CERTIFICATION AND ISSUE NOTICE v. (Doc. 21) DIAS & FRAGOSO, INC., a California Corporation; D&F AGRICULTURAL ENTERPRISES, INC., a California Corporation; GABRIEL M. DIAS; and JOHN L. FRAGOSO, 19 Defendants. 20 21 I. INTRODUCTION 22 Before the Court is Plaintiffs Rosalie Cuevas, Adolfo Gomez-Moreno, Reynaldo Tolano, 23 and Agustin Ambriz (“Plaintiffs”) motion for conditional certification of a collective action filed 24 on February 21, 2018. (Doc. 21). Defendants filed their opposition on March 12, 2018 (Doc. 25 22), and Plaintiffs filed their reply on March 20, 2018 (Doc. 23). 26 arguments on April 6, 2018. (Doc. 24.) Attorney Enrique Martinez telephonically appeared on 27 behalf of the Plaintiffs and attorney William Woolman telephonically appeared on behalf of the 28 Defendants. (Doc. 24). Having considered the moving, opposition and reply papers and the 1 This Court heard oral 1 parties’ arguments on the record, the Court RECOMMENDS GRANTING Plaintiffs’ motion for 2 conditional certification, and AUTHORIZING the mailing of Plaintiffs’ proposed notice. 3 II. BACKGROUND 4 The Plaintiffs are current and former employees of Dias & Fragoso, Inc. and D&F 5 Agricultural Enterprises, Inc. (collectively “D&F”). D&F, headquartered in Hanford, California, 6 provides machinery and personnel to client dairy farms to harvest, transport, and weigh crops. 7 Plaintiffs’ Class and Collective Action Compl. ¶ 12, 17 (“Compl.”), (Doc. 1 at 4-5). On March 8 10, 2017, Plaintiffs filed this collective action against D&F alleging violations of the Fair Labor 9 Standards Act (“FLSA”). In addition to bringing claims against D&F, Plaintiffs also allege, that 10 as owners and managers, Defendants Gabriel Dias and John Fragoso are individually liable under 11 the FLSA because they exercised operational control of the day-to-day operations of D&F, 12 including making hiring and firing decisions and other administrative decisions. Compl. ¶ 18. 13 The crux of the Plaintiffs’ federal law claim against all Defendants is that D&F and its 14 owners and managers failed to compensate them as covered, non-exempt employees under the 15 FLSA. 16 nonagricultural, Defendants have a blanket policy of classifying all of their employees as 17 agricultural workers. Compl. ¶ 2. Because of this alleged misclassification, the Plaintiffs seek 18 unpaid overtime for hours worked in excess of forty hours per week, as required by 29 U.S.C. § 19 207 for four subclasses of employees including: (1) mechanics, (2) maintenance workers, (3) 20 weighers from March 10, 2014 (three years before the complaint was filed) through the present, 21 and (4) truck drivers from March 10, 2014 through April 4, 2016, when Defendants began paying 22 overtime compensation as to truck drivers only. Named Plaintiffs allege generally that although most of D&F’s operations are 23 Defendants oppose conditional certification in large part by arguing that Plaintiffs’ own 24 declarations demonstrate that Plaintiffs are agricultural workers exempt under the FLSA 25 agricultural worker exemption.1 26 1 27 28 Plaintiffs seek to conditionally certify the collective action as against all four defendants, two entities and two individuals. At oral argument, defendant did not dispute, for purposes of the motion only, that the individual Defendants can be liable for FLSA violations because as "owners and managers" they are considered employers under the FLSA. Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999). 2 1 III. LEGAL STANDARD 2 Congress enacted the FLSA in 1938 to establish nationwide minimum wage and 3 maximum hours standards. Moreau v. Klevenhagen, 508 U.S. 22, 25 (1993). The FLSA requires 4 employers to pay covered employees overtime compensation of one and one-half times the 5 regular rate of pay for all hours worked in excess of forty hours per week, unless an exemption 6 applies. 29 U.S.C. § 207(a)(1). To ensure compliance with this requirement, the FLSA authorizes 7 actions by employees to recover unpaid overtime wages and an equal amount as liquidated 8 damages for violation of the FLSA’s overtime provisions. 29 U.S.C. § 216(b). 9 In addition to bringing individual suits, the FLSA allows employees to bring a collective 10 action on behalf of other “similarly situated” employees based on alleged violations of the FLSA. 11 29 U.S.C. § 216(b). A “collective action” differs from a class action. McElmurry v. U.S. Bank 12 Nat’l Ass’n, 495 F.3d 1136, 1139 (9th Cir. 2007). “In a class action, once the district court 13 certifies a class under Rule 23, all class members are bound by the judgment unless they opt out 14 of the suit. By contrast, in a collective action each plaintiff must opt into the suit by ‘giv[ing] his 15 consent in writing.’” Id. (citing 29 U.S.C. § 216(b)). As a result, “unlike a class action, only those 16 plaintiffs who expressly join the collective action are bound by its results.” Id. (citing 29 U.S.C. § 17 256). Section 216(b) does not require district courts to approve or authorize notice to potential 18 plaintiffs, but it is “within the discretion of a district court” to authorize such notice. Hoffmann– 19 La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989). The plaintiff bears the burden to show that 20 he and the proposed class members are “similarly situated.” See Adams v. Inter–Con Security 21 Sys., Inc., 242 F.R.D. 530, 535 (N.D. Cal. Apr. 11, 2007) (citing 29 U.S.C. § 216(b)). 22 The FLSA does not define the term “similarly situated.” Velasquez v. HSBC Finance 23 Corp., 266 F.R.D. 424, 426-27 (N.D. Cal. 2010). 24 articulated the appropriate test for certifying an FLSA collective action, district courts in this 25 Circuit generally apply a two-step approach. See, e.g. Syed v. M-I, L.L.C., No. 1:12-CV-1718, 26 2014 WL 3778246, at *3 (E.D. Cal. July 30, 2014), report and recommendation adopted as 27 modified, 1:12-CV-1718 AWI MJS, 2014 WL 6685966 (E.D. Cal. Nov. 26, 2014); Reed v. 28 County of Orange, 266 F.R.D. 446, 449 (C.D. Cal. 2010); Edwards v. City of Long Beach, 467 3 Although the Ninth Circuit has not yet 1 F.Supp.2d 986, 990 (C.D. Cal. 2006); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 2 (N.D. Cal. 2004). Under the first step, the court makes an initial “notice-stage” determination as 3 to whether potential opt-in plaintiffs are similarly situated to the representative plaintiffs, deciding 4 if a collective action should be certified for the sole purpose of sending notice of the action to 5 potential class members. Leuthold, 224 F.R.D. at 467. This determination is “based primarily on 6 the pleadings and any affidavits submitted by the parties.” Id. The standard applied at this stage 7 has been described as “fairly lenient,” id., requiring little more than substantial allegations, 8 supported by declarations or discovery, that “the putative class members were together the 9 victims of a single decision, policy, or plan.” Villa v. United Site Services of Ca., No. 5:12–CV– 10 00318–LHK, 2012 WL 5503550, at *13 (N.D. Cal. Nov. 13, 2012) (citation omitted); see also 11 Morton v. Valley Farm Transport, Inc., No. C–06–2933–SI, 2007 WL 1113999, at *2 (N.D. Cal. 12 Apr. 13, 2007) (describing burden as “not heavy” and requiring plaintiffs to merely show a 13 “reasonable basis for their claim of class-wide” conduct) (internal quotation marks and citation 14 omitted). The standard “typically results in conditional class certification.” Leuthold, 224 F.R.D. 15 at 467. Moreover, “[p]laintiffs need not conclusively establish that collective resolution is proper, 16 because a defendant will be free to revisit this issue at the close of discovery.” Kress v. 17 PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 640 (E.D. Cal. 2009)). 18 In the second stage, which is reached once discovery is complete and the case is ready to 19 be tried, the party opposing class certification may move to decertify the class. Reed, 266 F.R.D. 20 at 449. The court then must make a factual determination regarding the propriety and scope of the 21 class and must consider the following factors: (1) the disparate factual and employment settings 22 of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the 23 individual plaintiffs; and (3) fairness and procedural considerations. Pfohl v. Farmers Ins. Grp., 24 2004 WL 554834, *2–3 (C.D. Cal. Mar. 1, 2004) (citing Thiessen v. General Electric Capital 25 Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)). Should the court determine on the basis of the 26 complete factual record that the plaintiffs are not similarly situated, then the court may decertify 27 the class and dismiss the opt-in plaintiffs without prejudice. Leuthold, 224 F.R.D. at 467. 28 /// 4 1 IV. ANALYSIS 2 Plaintiffs maintain that they have satisfied the requirement for conditional certification of 3 making a modest factual showing that: (1) they are similarly situated to the potential opt-in 4 plaintiffs and (2) they were all the victims of a single companywide policy that resulted in their 5 not being paid federally required minimum and overtime wages. In support of conditional 6 certification, Plaintiffs offer twenty-seven (27) substantially similar declarations from various 7 employees all claiming that each subclass of employee provides the same essential function and 8 has similar job duties. For instance, weigher, Plaintiff Rosalie Cuevas, outlines that the weigher 9 subclass of employees weighs the corn and wheat transported to the dairy farms to feed client 10 livestock. See Declaration of Rosalie Cuevas (“Cuevas Decl.”), at ¶ 2, (Doc. 21-4 at 157). Ms. 11 Cuevas declares that as a scale operator she was responsible for “weighing the wheat that Dias & 12 Fragoso’s truck drivers brought to dairies” using a “scale head.” Cuevas Decl. ¶ 3. She “weighed 13 each truck and its contents, and recorded the gross and net weight.” Cuevas Decl. ¶ 3. She alleges 14 that she usually worked more than 12 hours per day and work 6 days per week, however, she was 15 not paid overtime until after 10 hours per day or 60 hours per week. Cuevas Decl. ¶ 4. The 16 declarations of other weighers Susie Gomez and Melissa Nava describe essentially identical job 17 duties, hours worked, and compensation paid. See Declaration of Susie C. Gomez (“Gomez 18 Decl.”), (Doc. 21-4 at 172); Declaration of Melissa Nava (“Nava Decl.”), (Doc. 21-4 at 120). 19 Mechanics Manuel Hernandez and Julio Cesar Mendoza declare that their job duties 20 include working on tires, brakes, transmissions, and other parts to maintain the trucks servicing 21 the clients fields. See Declaration of Manuel Hernandez (“Hernandez Decl.”), at ¶ 2 (Doc. 21-4 22 at 172). During the peak corn and wheat seasons, the mechanics usually work more than 12 hours 23 per day and work 6 days per week. Hernandez Decl. ¶ 3. During the off-season, the mechanics 24 usually work 9 to 10 hours per day. Id. Despite working more than 40 hours per week, Mr. 25 Hernandez declares that he and the other mechanics are not paid overtime until after 10 hours per 26 day or 60 hours per week. Hernandez Decl. ¶ 4. 27 Maintenance worker and named Plaintiff Agustin Ambriz describes that he worked in the 28 “chopper shop washing the choppers and fixing the machines.” See Declaration of Agustin 5 1 Ambriz (“Ambriz Decl.”), at ¶ 2 (Doc. 21-4 at 172). Despite working more than 40 hours per 2 week, he declares that he and the other maintenance workers are not paid overtime until after 10 3 hours per day or 60 hours per week. Ambriz Decl. ¶ 4. 4 Truck driver, Adolfo Gomez-Moreno along with several other truck drivers describe that 5 during their workday they drive to the fields owned by Defendants’ clients. See Declaration of 6 Adolfo Gomez-Moreno (“Gomez-Moreno Decl.”), at ¶ 2 (Doc. 21-4 at 3-5). Workers located at 7 those fields load corn and wheat in the truck. Gomez-Moreno Decl. ¶ 2. The truck drivers then 8 transport the corn and wheat to the clients’ dairy farms, which is used to feed the client’s cows. 9 Truck drivers usually work at least 10 hours per day, 6 days per week; however they are not paid 10 overtime until after working 60 hours per week. Gomez-Moreno Decl. ¶ 4. 11 Plaintiffs maintain that this evidence more than satisfies the “modest” burden required at 12 this stage in the proceedings to demonstrate that Plaintiffs and the potential collective are 13 similarly situated because putative class members within each subclass perform virtually uniform 14 job duties and Defendants maintained a company-wide plan that resulted in the failure to pay 15 them overtime as required under 29 U.S.C. § 207(a)(1). 16 1. Plaintiffs Have Demonstrated that they are Similarly Situated 17 Altogether, Plaintiffs have submitted twenty-seven declarations of current and former 18 employees who were based in and out of Defendants Hanford, California location. 19 employee declarations provide sufficient evidence to establish that the named Plaintiffs and the 20 putative class members are “similarly situated” for two reasons. 21 declarations demonstrate that the named plaintiffs and the opt-in plaintiffs perform similar job 22 duties within each subclass. The mechanics service trucks at Defendants shop; the maintenance 23 workers also work at the Defendants shop repairing and maintaining parts of the harvest vehicles; 24 truck drivers drive the fields owned by Defendants’ clients and make trips back and forth between 25 the fields and the dairy farms, and the weighers are responsible for weighing and recording the 26 weight of harvested corn and wheat provided to the dairy farms. See example declarations 27 Hernandez Decl. ¶ 2, Ambriz Decl. ¶ 2, Gomez-Moreno Decl. ¶ 3, and Cuevas Decl. ¶ 2. 28 Moreover, tellingly, Defendants do not claim that the Plaintiffs do dissimilar work or in a 6 These First, Plaintiffs’ sworn 1 different manner as other employees in each individual subclass. Instead, as Defendants admitted 2 at the hearing, they do not dispute that the employees in each subclass have similar job duties. 3 Second, Plaintiffs have shown that the putative class members were the victims of a single 4 decision, policy, or plan. This requirement is met upon a showing that Plaintiffs were subject to 5 the same uniform classification of exempt status under FLSA. See, e.g., Kress, 263 F.R.D. at 629. 6 Here, Defendants do not dispute that this policy uniformly categorizes all putative class members 7 as exempt from the overtime pay requirements of FLSA. The policy exempts all employees from 8 overtime pay requirements. 9 Accordingly, the employees are similarly situated. The employees’ declarations across all 10 job descriptions provide a colorable basis for the Court to conclude that (1) the mechanics, 11 maintenance workers, truck drivers, and weighers are similarly situated because of the uniformity 12 of their job duties, and (2) Defendants’ common pay policy inflicts a common injury on the 13 putative class. Therefore, the Court finds that Plaintiffs adequately demonstrate that the members 14 of the class are similarly situated. 15 Nonetheless, the Court acknowledges that defendant argues there are differences between 16 the putative mechanics subclass as noted by Defendants. (Doc. 22 at 15) (“the Mechanics class is 17 full of individuals that worked different shifts”). However, the difference in shifts identified by 18 Defendants is not significant enough to thwart Plaintiffs’ demonstration of job similarity. 19 Defendants do not explain how working different shifts fundamentally changes the mechanics’ 20 job duties. (Doc. 22 at 14). Nor do Defendants explain how working at different times varies the 21 employees work responsibilities. 22 conclusion, as Plaintiffs need only show that class members’ positions are similar, not “identical,” 23 to the positions held by other members. See Syed, 2014 WL 3778246 (E.D. Cal. July 30, 2014), 24 report and recommendation adopted as modified, 1:12-CV-1718 AWI MJS, 2014 WL 6685966 25 (E.D. Cal. Nov. 26, 2014)(citing Khadera v. ABM Industries Inc., C08-0417 RSM, 2011 U.S. 26 Dist. LEXIS 152138, 2011 WL 7064235, at *3 (W.D. Wash. Dec. 1, 2011) (“If one zooms in 27 close enough on anything, differences will abound . . . Plaintiffs’ claims need to be considered at 28 a higher level of abstraction.”). Thus, the Court concludes that notwithstanding some minor Accordingly, this argument does not change the Court’s 7 1 differences between putative class members’ work schedules, Plaintiffs’ evidence and substantial 2 allegations of similarity suffice to establish that putative class members are similarly situated. 3 Morton, 2007 U.S. Dist. LEXIS 31755, 2007 WL 1113999, at *2 (holding courts require little 4 more than substantial allegations, supported by declarations or discovery at the notice-stage). 5 2. Consideration of the Agricultural Exemption is Inappropriate at this Stage 6 With the exception detailed above, Defendants do not disagree that members of the 7 proposed subclasses are similarly situated. Instead, Defendants argue that the Court should deny 8 certification because the putative class members are (1) subject to the FLSA’s agricultural 9 exemption and therefore Plaintiffs have (2) failed to identify a company-wide policy that is 10 actually illegal and (3) conditional certification based solely on misclassification is inadequate to 11 justify collective treatment. As expressed in greater detail at the hearing, Defendants insist that 12 Plaintiffs’ own evidence demonstrates that the duties performed by the putative class members 13 qualify as exempt from overtime wages under the agricultural exemption to the FLSA under 29 14 U.S.C. § 213(b)(12). See 29 C.F.R. 780.158(c). Plaintiffs’ own evidence shows Plaintiff did 15 agricultural work. 16 The FLSA exempts “any employee employed in agriculture” from its overtime provisions. 17 29 U.S.C. § 213(b)(12). The FLSA defines agriculture, in relevant part, as “farming in all its 18 branches,” including, “the cultivation and tillage of the soil,” “the production, cultivation, 19 growing, and harvesting of any agricultural or horticultural commodities,” and any practices 20 “performed by a farmer or on a farm as incident to or in conjunction with such farming 21 operations, including preparation for market, delivery to storage or to market or to carriers for 22 transportation to market.” Id. at § 203(f). As a result, Defendants argue that Plaintiffs have not 23 satisfied the requirements for conditional certification of a FLSA collective action because they 24 cannot make a showing that Defendants’ policy of classifying their “agricultural workers” as 25 exempt from the federal minimum and overtime wage requirements is unlawful. 26 Defendants’ argument, however, does not raise a sufficient ground to deny Plaintiffs’ 27 motion for conditional certification. This argument is a factual inquiry directed at the merits of 28 the action, which Defendants are free to raise at a later stage. See Adams v. Inter-Con Sec. Sys., 8 1 Inc., 242 F.R.D. 530, 539 (N.D. Cal. 2007) (declining to evaluate the merits of claims at the 2 conditional certification stage); Leuthold v. Destination Am., 224 F.R.D. 462, 467 (N.D. Cal. 3 2004) (noting that it is at the second step of the analysis that the court considers the various 4 defenses available to the defendants with respect to the individual plaintiffs); see also Labrie v. 5 UPS Supply Chain Solutions, Inc., No. C09-3182 PJH, 2009 WL 723599, at *6 (N.D. Cal. Mar. 6 18, 2009) (“The court finds that SCS’s arguments raise issues primarily going to the merits and 7 are more appropriately addressed on a motion to decertify or motion for summary judgment once 8 notice has been given, the deadline to opt-in has passed, and discovery is closed.”). 9 Courts in the Ninth Circuit and around the country routinely hold that FLSA exemptions 10 should be addressed at the second tier stage of a conditional certification proceeding. See Sliger 11 v. Prospect Mortg., LLC, CIV. S-11-465 LKK, 2011 WL 3747947, at *3 (E.D. Cal. Aug. 24, 12 2011) (granting Plaintiffs’ motion to conditionally certify the class and holding that evidence that 13 plaintiffs are exempt employees was “beside the point at this [notice]-stage of the proceeding. 14 Defendant will have an opportunity to demonstrate the merits of its affirmative defenses at the 15 second tier stage of this proceeding.”); Syed v. M-I, L.L.C., 1:12-CV-01718 AWI, 2014 WL 16 3778246 (E.D. Cal. July 30, 2014), report and recommendation adopted as modified, 1:12-CV- 17 1718 AWI MJS, 2014 WL 6685966 (E.D. Cal. Nov. 26, 2014) (declining to address Defendants’ 18 FLSA administrative exemption argument at the tier-one notice stage); Barrera v. U.S. Airways 19 Group, Inc., CV–2012–02278–PHX, 2013 U.S. Dist. LEXIS 124624, 2013 WL 4654567, at *5 20 (D. Ariz. Aug. 30, 2013) (collecting cases and holding that “the potential applicability of an 21 FLSA exemption does not preclude conditional certification.”); Stanfield v. First NLC Financial 22 Servs., LLC, No. C–06–3892–SBA, 2006 U.S. Dist. LEXIS 98267, 2006 WL 3190527, at *4 23 (N.D. Cal. Nov. 1, 2006) (rejecting defendant’s argument that “the presence of several 24 exemptions that may apply to the putative class members [ ] precludes class certification” because 25 such a question went to the merits, and noting that “[e]ven if it turns out that [p]laintiffs cannot 26 prevail on their FLSA claim because they are subject to exemptions, a collective action should 27 still be certified if they are similarly situated.”). 28 Resolving the agricultural exemption is a fact inquiry better left to the second tier of 9 1 conditional certification. Ultimately, resolving the question of whether Plaintiffs have put forth 2 sufficient evidence that they and potential opt-in plaintiffs are similarly situated does not require a 3 determination of the merits of the agricultural exemption. Determining this fact-specific inquiry, 4 as Defendants request, would go against the weight of authority that prohibits undertaking that 5 analysis at the first stage of the certification process. 6 Finally, to the extent that Defendants argue that the alleged misclassification is 7 insufficient on its own to justify collective treatment, that argument is inapplicable here. (Doc. 22 8 at 15) (citing Trinh v. JP Morgan Chase & Co., No. 07-CV-1666, 2008 U.S. Dist. LEXIS 33016, 9 2008 WL 1860161, at *4 (S.D. Cal. Apr. 22, 2008) (“[M]erely alleging that a class of employees 10 was wrongly designated ‘exempt’ does not constitute a showing of an unlawful, institution-wide 11 policy.”). As noted above, conditional class certification is justified here not on the basis of 12 misclassification standing alone, but rather because Plaintiffs performed the same basic tasks and 13 were subject to the same pay practices. Cf. Brown v. Barnes & Noble, Inc. 252 F.Supp.3d 255, 14 263 (S.D.N.Y 2017)(“declining to certify a group of individuals with different jobs and different 15 job responsibilities who believe they have been improperly classified as exempt and denied 16 overtime wages.”). Such a showing is sufficient for conditional certification. 17 Plaintiffs have made the modest showing necessary for conditional certification. Later, if 18 discovery reveals that Plaintiffs are subject to an exemption, Defendants will have the opportunity 19 to file a motion to decertify the collective. 20 3. Proposed Notice to Potential Class Members 21 Courts have the authority to supervise the issuance of a notice in FLSA collective actions, 22 with the objective of “manag[ing] the process of joining multiple parties in a manner that is 23 orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the 24 Federal Rules of Civil Procedure.” See Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 169 25 (1989). Plaintiffs have requested that the Court exercise this authority to (1) require the 26 Defendants to provide a neutral class action administrator, the CPT Group, with the names and 27 last known addresses of all members of the subclasses, their dates of employment, and positions 28 held, and (2) direct the issuance of Proposed Notice and Consent Form to all potential class 10 1 members by mail, and or text message. (Docs. 21-2 and 21-3). 2 Defendants did not address these requests or raise any objection to them in its opposition. 3 After reviewing Plaintiffs’ proposed notice and consent to join, the Court is satisfied that they 4 constitute a fair and impartial explanation of the case along with the options available to class 5 members. Accordingly, the Court approves Plaintiffs’ proposed notice and consent to join as 6 attached as Exhibit 1 to Plaintiffs’ Motion. Plaintiffs shall disseminate the notice and consent 7 form to potential class members upon adoption of this Findings and Recommendation by the 8 District Judge. 9 V. CONCLUSION and RECOMMENDATION 10 For the foregoing reasons, the Court RECOMMENDS Plaintiffs’ motion for conditional 11 FLSA collective action certification be GRANTED. The Court recommends that the following 12 four subclasses be conditionally CERTIFIED: 13 (1) All persons who were employed by defendants as mechanics at any time from March 10, 2014 through the present. (2) All persons who were employed by defendants as maintenance workers at any time from March 10, 2014 through the present. (3) All persons who were employed by defendants as truck drivers at any time from March 10, 2014 through April 4, 2016. (4) All persons who were employed by defendants as weighers at any time from March 10, 2014 through the present. 14 15 16 17 18 19 20 Further, the Court recommends that the notice shall be provided to the subclass members as follows: 21 Within 15 days of the adoption of this Findings and Recommendations by the District 22 Judge, the parties shall send an email to CPT Group Class Action Administrators (“CPT Group”), 23 in Excel format, with the names and last known addresses of all members of the subclasses, their 24 dates of employment, and position(s) held. 25 Within 15 days of adoption of this Findings and Recommendations by the District Judge, 26 plaintiffs shall send an email to CPT Group with the names of the employees who have already 27 opted into the lawsuit. 28 Within 15 days from receipt of the class contact information or the opt-in list (whichever 11 1 is later), CPT Group shall mail the following items to the subclass members who have not opted 2 into the lawsuit: a copy of the Court-approved notice, the Consent to Join Lawsuit form, and an 3 envelope addressed to Plaintiffs’ counsel. 4 5 Subclass members shall have 60 days from the date of mailing to submit a signed Consent to Join Lawsuit form by mail, text message, email, or fax to plaintiffs’ counsel. 6 45 days after the first mailing, CPT Group shall mail a second copy of the Court-approved 7 notice and the Consent to Join Lawsuit form as a reminder to subclasses members who have not 8 opted into the lawsuit. 9 In the event that mail is returned as undeliverable, CPT Group shall notify both parties 10 within 3 days, and then, within 5 days, Defendants shall email the last known phone number to 11 CPT Group. Within 2 days, CPT Group shall notify the subclass member by text message in 12 English and Spanish that “There is a lawsuit against Dias & Fragoso, Inc. and D & F Agricultural 13 Enterprises for unpaid overtime pay. Contact CPT Group at [phone number] for a copy of the 14 notice.” 15 This Findings and Recommendation is submitted to the assigned District Judge, pursuant 16 to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with 17 the Findings and Recommendation, any party may file written objections with the Court and serve 18 a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s 19 Findings and Recommendation.” Any reply to the objections shall be served and filed within 20 fourteen (14) days after service of the objections. The parties are advised that failure to file 21 objections within the specified time may waive the right to appeal the District Court’s order. 22 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 25 26 IT IS SO ORDERED. Dated: /s/ Barbara April 9, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27 28 12
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