Hill v. R + L Carriers Inc, No. 4:2009cv01907 - Document 282 (N.D. Cal. 2011)
Court Description: ORDER DENYING PLAINTIFFS MOTION FOR CLASS CERTIFICATION (Docket No. 236), GRANTING DEFENDANTS MOTION TO DE-CERTIFY CONDITIONALLY CERTIFIED COLLECTIVE ACTION (Docket No. 249), AND DENYING AS MOOT DEFENDANTS MOTIONS TO EXCLUDE(Docket No. 231) AND TO STRIKE(Docket No. 270). Case Management Statement due by 3/29/2011. Case Management Conference set for 4/5/2011 02:00 PM.. Signed by Judge Claudia Wilken on 3/3/2011. (ndr, COURT STAFF) (Filed on 3/3/2011)
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Hill v. R + L Carriers Inc Doc. 282 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 No. C 09-1907 CW GLENN HILL and CASEY BAKER, and all others similarly situated, 6 7 8 Plaintiffs, v. R+L CARRIERS, INC.; R+L CARRIERS SHARED SERVICES, LLC, 9 Defendants. United States District Court For the Northern District of California 10 / 11 12 ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (Docket No. 236), GRANTING DEFENDANT’S MOTION TO DE-CERTIFY CONDITIONALLY CERTIFIED COLLECTIVE ACTION (Docket No. 249), AND DENYING AS MOOT DEFENDANT’S MOTIONS TO EXCLUDE (Docket No. 231) AND TO STRIKE (Docket No. 270) 13 14 Pursuant to Federal Rule of Civil Procedure 23(b)(3), 15 Plaintiffs Glenn Hill and Casey Baker move to certify a class of 16 Defendant R+L Carriers Shared Services, LLC’s current and former 17 California employees to prosecute claims related to alleged 18 violations of state wage-and-hour laws.1 19 Plaintiffs’ motion and moves to de-certify the collective action 20 that was conditionally certified under the Fair Labor Standards Act 21 (FLSA), 29 U.S.C. § 216(b). 22 certification motion. 23 Koenegstein and Russell Weitzel as class members. 24 Defendant objects to and moves to strike portions of paragraphs in 25 the Nelson Declaration filed in support of Plaintiffs’ motion for Defendant opposes Plaintiffs oppose Defendant’s de- Defendant also moves to exclude Robert Finally, 26 1 27 28 On November 9, 2009, R+L Carriers, Inc., was dismissed from this action for lack of personal jurisdiction. (Docket No. 46.) Defendant R+L Carriers Shared Services, LLC, is the only Defendant remaining in this action. Dockets.Justia.com 1 class certification and in opposition to Defendant’s motion for de- 2 certification.2 3 Having considered oral argument and the papers submitted by the 4 parties, the Court DENIES Plaintiffs’ motion for class 5 certification, GRANTS Defendant’s motion to de-certify the FLSA 6 collective action and DENIES as moot Defendant’s motions to exclude 7 and to strike. The motions were heard on December 23, 2010. 8 9 BACKGROUND Defendant provides operations and administrative employees to United States District Court For the Northern District of California 10 related entities that transport freight. 11 concern Defendant’s former and current dispatchers who work at its 12 shipping terminals. 13 The parties’ motions For the purposes of their motion, Plaintiffs categorize these 14 employees as either “pure” or “hybrid” dispatchers. 15 types of employees perform dispatching duties, “hybrid” dispatchers 16 may also load and unload Defendant’s trucks during their shifts. 17 Irrespective of their classification, these employees generally 18 work no fewer than ten hours per day. 19 Depo. 64:5-6. 20 Although both White Decl., Ex. A, Wyrick The “pure” dispatcher category is comprised only of City 21 Dispatchers, who are also referred to as First Shift 22 Supervisors/City Dispatchers. 23 assigned to the first of three shifts at Defendant’s terminals. 24 The first shift apparently begins between 6:00 and 7:00 a.m. and These dispatchers are generally 25 26 2 27 28 Defendant’s filing of evidentiary objections in a separate brief violates Civil L.R. 7-3, which requires that such objections be contained within its reply brief. In the future, such a filing will be stricken from the docket. 2 1 ends between 4:00 and 5:00 p.m.3 2 Saucedo Decl. ¶ 5. 3 and deliveries within a terminal’s local area. 4 Decl., Ex. G, Tejera Depo. 23:18-20; Camacho Decl. in Support of 5 Def.’s Mot. for Summ. J. ¶ 6. 6 Defendant’s San Leandro terminal. 7 See, e.g., Hill Decl. ¶ 5; These dispatchers manage and direct the pickups See, e.g., White Hill worked as a City Dispatcher in The “hybrid” dispatcher category consists of dispatchers who 8 staff the second and third shifts. 9 the following job titles: Router/Dispatchers-Outbound, These dispatchers hold one of United States District Court For the Northern District of California 10 Dispatcher/Outbound Supervisors, Router/Dispatcher Supervisors, 11 Dispatcher/Supervisors, Router Dispatchers-Inbound and 12 Dispatcher/Inbound Supervisors. 13 duties, dispatchers working the second shift, who appear to be the 14 Router/Dispatchers-Outbound and Dispatcher/Outbound Supervisors, 15 are responsible for managing line-haul shipments, which are 16 destined for Defendant’s hubs or terminals outside of the 17 terminal’s local area. 18 60:3-6; id., Ex. L, Haggard Depo. 20:24-21:5. 19 the third shift, who appear to be the Router Dispatchers-Inbound 20 and Dispatcher/Inbound Supervisors, manage freight delivered to the 21 terminal. 22 Defendant’s drivers who make deliveries within the terminal’s local 23 area. 24 Camacho Decl. in Support of Def.’s Mot. for Summ. J. ¶ 8. 25 the end of their shifts, third-shift dispatchers meet with City In addition to their dispatching See, e.g., White Decl., Ex. A, Wyrick Depo. Dispatchers working They assign deliveries to and create routes for See, e.g., White Decl., Ex. A, Wyrick Depo. 167:21-170:14; Toward 26 27 28 3 At least one City Dispatcher, however, worked hours that spanned the first and second shifts. White Decl., Ex. G, Tejera Depo. 23:18-20. 3 1 Dispatchers to discuss the local delivery assignments for the day. 2 See, e.g., Camacho Decl. in Support of Def.’s Mot. for Summ. J. ¶ 3 8. 4 of both second- and third-shift dispatchers. 5 Some dispatchers, such as Dispatcher/Supervisors, perform tasks The duties of a second- and third-shift dispatchers may depend 6 on the size of a terminal. 7 Depo. 53:14-22 (agreeing with Plaintiffs’ counsel that third-shift 8 dispatchers “at the smaller terminals become essentially jacks-of- 9 all-trades”), 60:18-23 (stating that second-shift dispatchers in a See, e.g., White Decl., Ex. A, Wyrick United States District Court For the Northern District of California 10 “smaller location” may “spend more time in dispatch”). 11 some terminals, a single dispatcher may perform tasks that, in 12 other terminals, would be assigned to dispatchers working different 13 shifts. 14 performed the duties of a City Dispatcher, second-shift dispatcher 15 and third-shift dispatcher. 16 Tejada, whose regular hours spanned the first and second shifts and 17 entailed a combination of duties related to those shifts. 18 Decl., Ex. G, Tejera Depo. at 22:22-24:22. 19 Also, in For instance, Baker, who was a Dispatcher/Supervisor, Another example is opt-in Plaintiff White Plaintiffs allege Defendant misclassified them as exempt from 20 federal and state overtime pay requirements. 21 Defendant did not allow California dispatchers to take meal and 22 rest breaks and did not provide proper wage statements. 23 bring claims for violations of the FLSA, California’s wage-and-hour 24 laws and California’s Unfair Competition Law (UCL). They also allege Plaintiffs 25 On January 22, 2010, the Court denied Defendant’s motion for 26 summary judgment after concluding that there are issues for trial 27 concerning whether Defendant properly classified Hill as exempt 28 from overtime pay requirements. The Court also conditionally 4 certified this lawsuit as a FLSA collective action. 2 § 216(b). 3 worked at R+L Carriers as a City Dispatcher, First Shift 4 Supervisor/Dispatcher, Inbound Supervisor/Dispatcher, Outbound 5 Supervisor/Dispatcher, or in any other Dispatcher positions for any 6 period of time since January 22, 2007, and who were not paid 7 overtime.” 8 2010, Hill filed consent-to-join notices from fifty-one individuals 9 purporting to be part of the conditionally certified FLSA class. 10 United States District Court For the Northern District of California 1 On October 25, 2010, the Court granted Hill leave to file a See 29 U.S.C. Notice was sent to a class defined as “everyone who Order of January 22, 2010, Ex. A at 3. On June 17, 11 second amended complaint to add Opt-in Plaintiff Casey Baker as a 12 named Plaintiff and class representative. 13 14 DISCUSSION I. Defendant’s Motion to De-Certify FLSA Action 15 A. 16 The FLSA authorizes workers to sue for unpaid overtime wages Legal Standard 17 on their own behalf and on behalf of “other employees similarly 18 situated.” 19 Federal Rule of Procedure 23, collective actions brought under the 20 FLSA require that individual members “opt in” by filing a written 21 consent. 22 Cir. 2010) (citing 29 U.S.C. § 216(b)). 23 29 U.S.C. § 216(b). Unlike class actions brought under Wang v. Chinese Daily News, Inc., 623 F.3d 743, 761 (9th The FLSA provides for a collective action where the 24 complaining employees are “similarly situated.” 25 § 216(b). 26 the Ninth Circuit defined it. 27 is little circuit law defining “similarly situated.” 28 Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). 29 U.S.C. The FLSA does not define “similarly situated,” nor has As noted by the Tenth Circuit, there 5 Thiessen v. 1 Although various approaches have been taken to determine 2 whether plaintiffs are “similarly situated,” district courts in 3 this circuit have used the ad hoc, two-step approach. 4 Harris v. Vector Mktg. Corp., ___ F. Supp. 2d ___, 2010 WL 4588967 5 (N.D. Cal.); Reed v. Cnty. of Orange, 266 F.R.D. 446 (C.D. Cal. 6 2010); Wynn v. Nat’l Broad. Co., Inc., 234 F. Supp. 2d 1067, 1082 7 (C.D. Cal. 2002) (noting that the majority of courts prefer this 8 approach); see also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 9 1208, 1219 (11th Cir. 2001) (finding the two-step approach to See, e.g., United States District Court For the Northern District of California 10 certification of § 216(b) opt-in classes to be an effective tool 11 for district courts to use). 12 first step, which entails considering whether a putative class 13 should be conditionally certified for the purposes of sending 14 notice of the action to potential class members. 15 Thiessen, 267 F.3d at 1102; Harris, 2010 WL 4588967, at *4. 16 The Court has already undertaken the See, e.g., The second step is made at the conclusion of discovery, 17 usually on a motion for de-certification by the defendant, 18 utilizing a stricter standard for “similarly situated.” 19 267 F.3d at 1102. 20 several factors, such as (1) the disparate factual and employment 21 settings of the individual plaintiffs; (2) the various defenses 22 available to the defendant which appear to be individual to each 23 plaintiff; (3) fairness and procedural considerations; and 24 (4) whether the plaintiffs made any required filings before 25 instituting suit. Thiessen, During this second-stage analysis, courts review Id. at 1103. 26 As noted, collective actions under the FLSA are not subject to 27 the requirements of Rule 23 of the Federal Rules of Civil Procedure 28 for certification of a class action. 6 Id. at 1105. Courts have 1 held that FLSA’s “similarly situated” standard is less stringent 2 than Rule 23(b)(3)’s requirement that common questions of law and 3 fact predominate. 4 575 F.3d 567, 584-87 (6th Cir. 2009); Grayson v. K Mart Corp., 79 5 F.3d 1086, 1096 (11th Cir. 1996). 6 plaintiff is that some identifiable factual or legal nexus binds 7 together the various claims of the class members in a way that 8 hearing the claims together promotes judicial efficiency and 9 comports with the broad remedial policies underlying the FLSA.” See, e.g., O’Brien v. Ed Donnelly Enters., Inc., “All that need be shown by the United States District Court For the Northern District of California 10 Wertheim v. Arizona, 1993 WL 603552, at *1 (D. Ariz.) (citations 11 omitted). 12 required.” “Showing a ‘unified policy’ of violations is not O’Brien, 575 F.3d at 584. 13 The lead plaintiffs in a FLSA collective action have the 14 burden of showing that the opt-in plaintiffs are situated similarly 15 to them. Id. 16 B. 17 In their opposition to Defendant’s de-certification motion, Analysis 18 Plaintiffs “clarify” that their FLSA collective action consists of 19 only City Dispatchers. 20 the group notified pursuant to the Court’s conditional 21 certification order. 22 to all dispatchers, including “hybrid” dispatchers, who had worked 23 for Defendant since January 22, 2007 and not been paid overtime. 24 Plaintiffs exclude “hybrid” dispatchers from the proposed FLSA 25 collective action, stating that discovery revealed these 26 dispatchers to be properly classified as exempt from overtime pay 27 requirements under the federal Motor Carrier Exemption, 29 C.F.R. 28 § 782.2(a). This set of employees is much narrower than As noted above, the Court authorized notice 7 1 Defendant argues that this concession, on its own, warrants 2 de-certification of the FLSA collective action in its entirety. 3 This argument sweeps too broadly. 4 not situated similarly to the lead plaintiff, the most efficient 5 course may be to grant the defendant’s de-certification motion in 6 part, dismiss the non-conforming opt-in plaintiffs’ claims without 7 prejudice and narrow the scope of the FLSA collective action. 8 e.g., Dice v. Weiser Sec. Servs., Inc., 2008 WL 249250, at *1 (S.D. 9 Fla.) (creating a subclass of opt-in plaintiffs who were situated If some opt-in plaintiffs are See, United States District Court For the Northern District of California 10 similarly to the named plaintiff) (citing King v. Koch Foods of 11 Miss., LLC, 2007 WL 1098488, at *4 (S.D. Miss.)); cf. Wren v. RGIS 12 Inventory Specialists, 256 F.R.D. 180, 212-13 (N.D. Cal. 2009) 13 (granting de-certification motion in part by limiting claims 14 brought by the FLSA opt-in plaintiffs). 15 discretion in managing FLSA collective actions. 16 F.3d at 1105. 17 dismissing the claims of the opt-in plaintiffs who are situated 18 similarly to the named plaintiff simply because other opt-in 19 plaintiffs are not so situated. 20 District courts have See Thiessen, 267 Judicial efficiency would not be served by To proceed with a collective action here, opt-in Plaintiffs 21 who have worked as City Dispatchers must be situated similarly to 22 Hill, who was a City Dispatcher.4 23 circumstances with those of other opt-in Plaintiffs shows a lack of 24 similarity that precludes adjudication of this case as a FLSA 25 collective action. However, a comparison of Hill’s 26 27 28 4 Plaintiffs concede that Baker, a “hybrid” dispatcher, was exempt from federal overtime pay requirements. Thus, Baker does not appear to have a claim under FLSA concerning overtime pay. 8 1 Hill represents that he had very little discretion in 2 performing his job. 3 Terminal Services Operations Manual (TSOM) and could not deviate 4 from it. 5 from the terminal manager to perform several actions, including 6 adjusting drivers’ start times, bringing in drivers to replace 7 regularly-scheduled drivers who were not able to work, or 8 reassigning pick-ups and or deliveries in the event that a driver’s 9 truck broke down. He states that he adhered closely to the He also indicates that he was required to seek approval Hill Decl. ¶¶ 30, 33 and 39. He represents that United States District Court For the Northern District of California 10 he played a very limited role on personnel matters: he never 11 participated in employee hiring and, if he believed that an 12 employee required discipline, he had to notify the terminal 13 manager. 14 drivers before the start of their work shifts” or provided them 15 with training. 16 that he constantly asked the terminal manager questions; in the 17 event that the terminal manager was not available, Hill was 18 instructed to contact the manager of another terminal. 19 Decl., Ex. D, Hill Depo. 112:3-16. 20 Id. ¶¶ 21 and 23-24. He states that he “never met with Id. ¶¶ 26 and 28. At his deposition, Hill stated White Hill’s experience contrasts with that of opt-in Plaintiff 21 Dennis Gaitley, who works as a City Dispatcher in New Jersey. 22 Gaitley exercises more discretion in his job than Hill did. 23 deposition, Gaitley testified that, when the terminal manager is 24 not present, he is expected to assume responsibility for the 25 operations of the terminal and to make decisions on his own. 26 also White Decl., Ex. H, Gaitley Depo. 43:3-5 (“You can’t run to 27 the Terminal Manager for every decision or what would I be there 28 for.”). At his Gaitley also represented that he provides trainings, 9 See 1 either to new employees or at monthly safety meetings. 2 70:10 and 74:16-21. 3 interviewing driver candidates. 4 the TSOM, Gaitley opined that it was “just a manual telling a new 5 employee how they expect them to function under R+L’s guidelines.” 6 Id. at 108:16-20. 7 Id. 69:24- He also testified that he has assisted in Id. at 137:20-25. With respect to Both Hill’s and Gaitley’s experiences appear to differ from 8 those of opt-in Plaintiff Carlos Tejera, who was a City Dispatcher 9 at Defendant’s Atlanta terminal. Unlike Hill or Gaitley, Tejera United States District Court For the Northern District of California 10 was not aware of the TSOM and, in direct contrast to Hill, Tejera 11 testified that he did not use the TSOM to perform his duties. 12 White Decl., Ex. G, Tejera Depo. 116:8-16. 13 like Hill, Tejera did not attend or assist with monthly safety 14 meetings. 15 but less than Gaitley. 16 suffered a breakdown, Tejera consulted with the terminal manager 17 and participated in making reassignment decisions. 18 93:14. 19 to re-assign the driver to, and which trucks to re-distribute 20 original load to.” 21 And, unlike Gaitley but Tejera also apparently had more discretion than Hill, For instance, when a driver’s truck See id. 92:22- In contrast, Hill was instructed “specifically which truck Hill Decl. ¶ 39. Finally, opt-in Plaintiff Allan Holleman, who was a City 22 Dispatcher in Indiana, had limited discretion like Hill and was 23 required to seek the terminal manager’s approval before making many 24 decisions. 25 role in personnel decisions, making suggestions and recommendations 26 with regard to hiring decisions. 27 Depo. 61:15-20. 28 interview candidates. Unlike Hill, however, Holleman played a more active White Decl., Ex. I, Holleman But in contrast to Gaitley, Holleman did not Id. at 80:22-81:2. 10 Also, Holleman did not 1 appear to rely heavily on the TSOM; he said that, although he was 2 aware of it, he did not consult it in the performance of his day- 3 to-day activities. 4 Id. at 68:7-15. All of this indicates that the circumstances of each City 5 Dispatcher’s employment situation differed, which would require an 6 individual inquiry into whether each of them was properly 7 classified as exempt. 8 on the administrative and executive employee exemptions. 9 generally 29 C.F.R. §§ 541.200 and 541.100. Defendant intends to assert defenses based See The requirements of United States District Court For the Northern District of California 10 the administrative exemption alone evince the necessity of 11 individualized inquiries in this case. 12 inquiry into whether an employee’s primary duty entailed the 13 “performance of office or non-manual work directly related to the 14 management or general business operations of the employer or the 15 employer’s customers” and included the “exercise of discretion and 16 independent judgment with respect to matters of significance.” 17 C.F.R. § 541.200(a)(2)-(3). 18 Dispatchers exercised more discretion than others. 19 investigation of the degree of each opt-in Plaintiffs’ exercise of 20 discretion would prove too unwieldy at trial. That exemption requires an 29 As described above, some City An 21 Plaintiffs point to Defendant’s witnesses’ testimony that 22 dispatchers should be performing the same job and that dispatchers’ 23 primary job is dispatching. 24 testimony of William Gaines, one of Defendant’s former vice 25 presidents, who compared City Dispatchers to McDonald’s fries to 26 suggest that each “dispatcher should be doing the same job in every 27 terminal.” 28 Certification, Ex. 13, Gaines Depo. 85:13-25. Specifically, they point to the Nelson Decl. in Support of Mot. for Class 11 They also cite the 1 testimony of Courtney Wyrick, one of Defendant’s current vice 2 presidents, who agreed with Plaintiffs’ counsel’s statement that a 3 City Dispatcher would be performing “pretty much the same exact job 4 as a city dispatcher at another similarly sized terminal.” 5 Ex. 7, Wyrick Depo. 23:24-24:5. 6 inconsistent with the differences raised above. 7 Dispatchers should be performing the same job as City Dispatchers 8 in similarly-sized terminals does not necessarily mean that they 9 are in fact doing so. Id., However, these statements are not That City Furthermore, the size of Defendant’s United States District Court For the Northern District of California 10 terminals varies, which leads to differences in duties. 11 Gaines stated that City Dispatchers in “smaller terminals” have 12 “dual duties,” performing the tasks of both a City Dispatcher and 13 third-shift supervisor. 14 Indeed, Id., Ex. 13, Gaines Depo. 86:20-25. Plaintiffs also argue that the primary job of each dispatcher 15 is dispatching and, thus, they are all situated similarly. 16 Specifically, they point to employees’ declarations collected by 17 Defendant, which state that their primary duty was “to manage and 18 direct the pickups and deliveries made by [Defendant’s] Drivers.” 19 See, e.g., Camacho Decl. in Support of Def.’s Mot. for Summ. J. 20 ¶ 6; Kardiban Decl. in Opposition to Pl.’s Mot. for Conditional 21 Certification ¶ 5. 22 “manage” or “direct.” 23 their duties, all City Dispatchers exercised only a limited amount 24 of discretion or performed only non-exempt tasks. 25 However, these statements do not define Nor do they establish that, in fulfilling Plaintiffs also point to the TSOM, asserting that it governs 26 how all City Dispatchers perform their jobs. 27 true, Plaintiffs offer no evidence that it limits what City 28 Dispatchers may do. Even if this were And, as noted above, it is not apparent that 12 1 City Dispatchers uniformly use the TSOM; although Hill apparently 2 relied on it, Tejada had never heard of it. 3 testified that the TSOM offers only guidelines on how City 4 Dispatchers should perform their jobs. 5 Wyrick Depo. 20:8-15; see also id. at 22:14-21 (“The manual is a 6 guideline. 7 decisions have to be made by personnel in a location that may be 8 different than what is actually written and stated in the 9 manual.”). Further, Wyrick See White Decl., Ex. A, There are circumstances that happen every day that Contrary to Wyrick’s testimony, Plaintiffs maintain United States District Court For the Northern District of California 10 that City Dispatchers are not permitted to deviate from the TSOM, 11 citing testimony of James Fishpaw, Defendant’s Rule 30(b)(6) 12 designee. 13 the standards set forth” in the TSOM. 14 Mot. for Class Certification, Ex. 2, Fishpaw Decl. 72:22-24. 15 Although this statement differs somewhat from Wyrick’s testimony, 16 it does not establish that City Dispatchers uniformly exercised the 17 same amount of discretion to meet the standards prescribed in the 18 TSOM. 19 “is put forth as a guideline” and that it is not an “all- 20 encompassing” reference. 21 Ex. 2 at 71:19-25. 22 Fishpaw testified that City Dispatchers “need to follow Nelson Decl. in Support of Further, Fishpaw testified later, like Wyrick, that the TSOM White Decl. in Support of Def.’s Reply, Finally, Plaintiffs argue that Defendant admitted that all 23 City Dispatchers are “production employees,” apparently referring 24 to 29 C.F.R. § 541.201(a), which states that the administrative 25 exemption applies to an employee who performs “work directly 26 related to assisting with the running or servicing of the business, 27 as distinguished, for example, from working on a manufacturing 28 production line or selling a product in a retail or service 13 1 establishment.” 2 Dispatchers are “front-line supervisors” who are “essential” to and 3 “directly involved” in Defendant’s business. 4 Wyrick Depo. 136:18-137:10. 5 alone establish, that City Dispatchers are akin to manufacturing 6 production line employees or have the primary job “to generate 7 (i.e., ‘produce’) the very product or service that the employer’s 8 business offers to the public.” 9 126 F.3d 1, 9 (1st Cir. 1997). Plaintiffs cite Wyrick’s testimony that City Nelson Decl., Ex. 7, This testimony does not suggest, let Reich v. John Alden Life Ins. Co., United States District Court For the Northern District of California 10 Because the City Dispatchers apparently exercised varying 11 amounts of discretion in performing their duties, Plaintiffs do not 12 establish that the opt-in Plaintiffs are situated similarly to 13 Hill. 14 employment settings, which would require individual inquiries to 15 determine whether they are subject to Defendant’s exemption 16 defenses. 17 the FLSA collective action is granted. 18 Plaintiffs are dismissed without prejudice. 19 action is de-certified, the Court need not consider Defendant’s 20 motion to exclude opt-in Plaintiffs Robert Koenegstein and Russell 21 Weitzel from the FLSA collective action. 22 II. The record shows that City Dispatchers had disparate Accordingly, Defendant’s motion for de-certification of The claims of the opt-in Because the collective Plaintiffs’ Motion for Class Certification 23 A. 24 Plaintiffs seeking to represent a class, pursuant to Federal Legal Standard 25 Rule of Civil Procedure 23, must satisfy the threshold requirements 26 of Rule 23(a) as well as the requirements for certification under 27 one of the subsections of Rule 23(b). 28 case is appropriate for certification as a class action if: 14 Rule 23(a) provides that a 1 “(1) the class is so numerous that joinder of all members is 2 impracticable; (2) there are questions of law or fact common to the 3 class; (3) the claims or defenses of the representative parties are 4 typical of the claims or defenses of the class; and (4) the 5 representative parties will fairly and adequately protect the 6 interests of the class.” 7 8 9 Fed. R. Civ. P. 23(a). Rule 23(b) further provides that a case may be certified as a class action only if one of the following is true: (1) prosecuting separate actions by or against individual class members would create a risk of: United States District Court For the Northern District of California 10 11 12 13 14 15 (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; 16 17 18 19 20 21 (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: 22 23 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; 24 25 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 26 27 (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and 28 15 1 (D) the likely difficulties in managing a class action. 2 Fed. R. Civ. P. 23(b). 3 Plaintiffs seeking class certification bear the burden of 4 demonstrating that each element of Rule 23 is satisfied, and a 5 district court may certify a class only if it determines that the 6 plaintiffs have borne their burden. Gen. Tel. Co. v. Falcon, 457 7 U.S. 147, 158-61 (1982); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 8 1304, 1308 (9th Cir. 1977). The court must conduct a “rigorous 9 analysis,” which may entail “looking behind the pleadings to issues United States District Court For the Northern District of California 10 overlapping with the merits of the underlying claims.” Dukes v. 11 Wal-Mart Stores, Inc., 603 F.3d 571, 594 (9th Cir. 2010). In doing 12 so, however, the court must not consider “any portion of the merits 13 of a claim that do not overlap with the Rule 23 requirements.” Id. 14 at 594. To satisfy itself that class certification is proper, the 15 court may consider material beyond the pleadings and require 16 supplemental evidentiary submissions by the parties. Id. at 589 17 (quoting Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 18 1975)). Ultimately, it is in the district court’s discretion 19 whether a class should be certified. Dukes, 603 F.3d at 579. 20 B. Analysis 21 Plaintiffs move, pursuant to Rule 23(b)(3), to certify a class 22 of California dispatchers, including City Dispatchers and “hybrid” 23 dispatchers. In the alternative, they seek certification of 24 separate subclasses for the two types of California dispatchers. 25 Plaintiffs’ failure to demonstrate that the opt-in FLSA Plaintiffs 26 are situated similarly to Hill does not necessarily foreclose 27 certification of a California class; the FLSA collective action 28 16 1 involved Defendant’s City Dispatchers working throughout the United 2 States. 3 Even if Plaintiffs satisfy the requirements of Rule 23(a), 4 they fail to meet the Rule 23(b)(3) requirement that common 5 questions of fact predominate over individual inquiries and that a 6 class action is the superior method to adjudicate these claims.5 7 “The predominance inquiry of Rule 23(b)(3) asks whether 8 proposed classes are sufficiently cohesive to warrant adjudication 9 by representation. The focus is on the relationship between the United States District Court For the Northern District of California 10 common and individual issues.” 11 Overtime Pay Litig. (Wells Fargo), 571 F.3d 953, 957 (9th Cir. 12 2009) (internal quotation marks and citations omitted). 13 common questions present a significant aspect of the case and they 14 can be resolved for all members of the class in a single 15 adjudication, there is clear justification for handling the dispute 16 on a representative rather than on an individual basis.’” 17 v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (quoting 7A 18 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal 19 Practice & Procedure § 1777 (2d ed. 1986)). 20 requires a district court to formulate ‘some prediction as to how 21 specific issues will play out in order to determine whether common 22 or individual issues predominate . . . .’” In re Wells Fargo Home Mortg. “‘When Hanlon “Rule 23(b)(3) Dukes, 603 F.3d at 593 23 24 25 26 27 28 5 To satisfy the typicality requirement of Rule 23(a), subclasses of City Dispatchers and hybrid dispatchers would be required. Plaintiffs state that Baker, who was a “hybrid” dispatcher, is exempt from overtime pay requirements based on his loading and unloading of Defendant’s trucks. See Pls.’ Mot. for Class Certification 12:2-3. Thus, Baker cannot represent a class of City Dispatchers that did not perform such duties and who may be eligible for overtime pay. Conversely, Hill, who did not perform any loading or unloading, is not typical of “hybrid” dispatchers. 17 1 (quoting In re New Motor Vehicles Canadian Export Antitrust Litig., 2 522 F.3d 6, 20 (1st Cir. 2008)). 3 Plaintiffs offer no evidence of the duties actually performed 4 by Defendant’s California dispatcher employees. 5 on the same evidence detailed above: statements that all 6 dispatchers’ primary job is dispatching, which appears to mean that 7 they manage and direct pickups and deliveries; Gaines’s statement 8 that dispatchers are similar to McDonald’s fries; Wyrick’s 9 agreement with Plaintiffs’ counsel that City Dispatchers perform Instead, they rely United States District Court For the Northern District of California 10 “pretty much the exact same job” in similarly sized terminals; the 11 TSOM; and testimony that dispatchers are “front line” employees. 12 However, as explained above, none of this evidence establishes that 13 City Dispatchers and “hybrid” dispatchers all perform sufficiently 14 similar duties and exercise the same level of discretion at their 15 jobs. 16 determine each class member’s circumstances. 17 As above, individualized inquiries would be required to In California, a terminal’s size has a significant impact on 18 the duties assigned to a dispatcher. 19 California terminals, a single dispatcher may be assigned tasks 20 that, in other terminals, are assigned to dispatchers working 21 different shifts. 22 (stating that, in Benicia and San Diego, there are no positions 23 defined solely as a City Dispatcher). 24 terminal, Baker handled tasks assigned to City Dispatchers and 25 second- and third-shift dispatchers. 26 the supervisor position in Redding, which was held by Baker, “did 27 the inbound, did the city dispatching and did the outbound”). 28 Wyrick agreed with Plaintiffs’ counsel that City Dispatchers work Wyrick testified that at some Nelson Decl., Ex. 7, Wyrick Depo. 30:4-16 18 For instance, in the Redding Id. at 51:19-20 (stating that 1 2 only in terminals “with a decent size workload.” Id. at 132:2. Uniform corporate policies exempting California dispatchers 3 from overtime pay requirements and requiring them to clock in and 4 out for work are not sufficient, on their own, to warrant class 5 treatment. 6 “blanket exemption policy does nothing to facilitate common proof 7 on the otherwise individualized issues”). 8 predominance and superiority requirements are “comprehensive 9 uniform policies detailing the job duties and responsibilities of See Wells Fargo, 571 F.3d at 959 (stating that a More relevant to the United States District Court For the Northern District of California 10 employees.” 11 such policies, there is no evidence that Defendant used or enforced 12 the TSOM in a manner that ensured uniformity among its California 13 dispatchers, let alone that it was sufficiently comprehensive to 14 limit significantly each dispatcher’s discretion. 15 referred to the TSOM as creating a “little box” within which a 16 dispatcher could act, he also explained, 17 18 19 20 Id. Although Plaintiffs claim that the TSOM contains While Wyrick The manual is a guideline. There are circumstances that happen every day that decisions have to be made by personnel in a location that may be different than what is actually written and stated in the manual. So when we hire people, we want to know that they can be independent strategic thinkers who can make decisions that are in the best interests, again, of our employees, our customers and our company. 21 Nelson Decl., Ex. 7, Wyrick Depo. 22:14-21. This description 22 mitigates the TSOM’s value with respect to predominance and 23 superiority. 24 Thus, there would be multiple questions of fact related to 25 the duties performed and amount of discretion exercised by 26 Defendant’s California dispatchers. Relevant questions would 27 include what tasks dispatchers actually performed, such as 28 19 1 dispatching or routing; how much discretion they exercised in 2 managing and directing pickups and deliveries; and whether they 3 made substantial decisions without their terminal manager’s 4 consent. 5 questions of fact. 6 cumbersome, a class action is not the superior method to adjudicate 7 this lawsuit. 8 9 These individual inquiries would predominate over common Because such individual inquiries would prove Accordingly, Plaintiffs’ motion for class certification is denied. To the extent the Court relied on any evidence to which United States District Court For the Northern District of California 10 Defendant objected, Defendant’s objections are overruled as moot. 11 In addition, Defendant’s motion to strike paragraphs of the Nelson 12 Declaration is denied as moot. 13 14 CONCLUSION For the foregoing reasons, the Court DENIES Plaintiffs’ motion 15 for class certification (Docket No. 236) and GRANTS Defendant’s 16 motion to de-certify the conditionally certified FLSA collective 17 action (Docket No. 249). 18 dismissed without prejudice. 19 motions to exclude (Docket No. 231) and to strike (Docket No. 270). 20 The claims of the opt-in Plaintiffs are The Court DENIES as moot Defendant’s A further case management conference will be held on April 5, 21 2011 at 2:00 p.m. 22 management conference statement by March 29, 2011. 23 The parties shall file their joint case IT IS SO ORDERED. 24 25 Dated: 3/3/2011 CLAUDIA WILKEN United States District Judge 26 27 28 20
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