United States District Court, D. Colorado
ILDEFONSO VARA, SANDRA ESTRADA, YAZMIN NAVA, MARIO ESPINOZA, GILBERTO RAMIREZ, RICARDA NAVA, and JOSE VARA, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
TSM PROPERTIES, LLC, d/b/a COSTA VIDA LT, DISCIPLE FOODS, LLC, COSTA VIDA LONE TREE, LC, COSTA VIDA LONE TREE, LLC, and SPENCER BOWEN, Defendants.
ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the Plaintiffs' Motion To Proceed as a Collective Action, for Court-Authorized Notice and for Disclosure of the Names, Addresses, and Dates of Employment of the Potential Opt-In Plaintiffs [#4] filed February 18, 2014. The defendants filed a response [#12], the plaintiff filed a reply [#15], and the plaintiff filed a Notice of Supplemental Authority [#25]. I grant the motion.
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question), 29 U.S.C. § 216(b) (Fair Labor Standards Act), and 28 U.S.C. § 1367 (supplemental).
II. STANDARD OF REVIEW
This case involves alleged violations of the wage provisions of the Fair Labor Standards Act ("FLSA" or "the Act"). The plaintiffs seek to pursue a collective action under the Act on behalf of themselves and other similarly situated current and former employees of the defendants, TSM Properties, LLC, Disciple Foods, LLC, Lone Tree, LC, Costa Vida-Lone Tree, LLC, and Spencer Bowen. Section 216(b) of the FLSA provides the exclusive means of bringing such class-wide claims to redress alleged violations of the FLSA. See 29 U.S.C.A. § 216(b); Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 678-79 (D. Kan. 2004). Contrary to the procedures governing a typical class action under Rule 23, plaintiffs who wish to participate in a FLSA collective action must opt in to the action. See 29 U.S.C. § 216(b) ("No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."); In re American Family Mutual Insurance Co. Overtime Pay Litigation, 638 F.Supp.2d 1290, 1298 (D. Colo. 2009).
A collective action under the FLSA may be maintained only by and among employees who are "similarly situated." The Tenth Circuit has adopted a two-step analysis governing this determination. At the initial "notice stage, " the trial court must determine whether plaintiffs have made "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001), cert. denied, 536 U.S. 934 (2002) (citation and internal quotation marks omitted). The court makes this determination relying on the allegations of the complaint and any affidavits filed by plaintiffs. Brown, 222 F.R.D. at 680. Certification at this step is conditional, and the standard of proof "is a lenient one that typically results in class certification, " allowing notice to be sent to the putative class members and discovery to be undertaken. Id. at 679.
After discovery is complete, the second, or "decertification, " stage occurs. At that point, the court applies a much stricter standard to determine whether class members are similarly situated and, consequently, whether the action should continue as a collective action. In making that determination, the court must evaluate, inter alia, "the disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether plaintiffs made any required filings before instituting suit." Brown, 222 F.R.D. at 679 (citing Thiessen, 267 F.3d at 1103).
The plaintiffs brought this action on behalf of themselves and other similarly situated current and former employees of the defendants. The action was brought under 29 U.S.C. § 216(b). The defendants own and operate Mexican restaurants. According to the complaint [#1], the "plaintiffs and others similarly situated worked as prep cooks, line cooks, tortilla-makers, cashiers, dishwashers and managers" in Mexican restaurants operated by the defendants. Complaint [#1], ¶ 1. For purposes of the present motion, I treat the allegations in the complaint [#1] as the relevant facts. The plaintiffs allege that the defendants failed to pay the plaintiffs, and the group of employees the plaintiffs seek to include in this action, overtime wages for hours worked beyond forty hours for each work week. Id., ¶ 2. The plaintiffs regularly worked more than forty hours per week for the defendants, but the defendants paid the plaintiffs for hours in excess of forty hours per week at their regular hourly rate and not at the overtime rate, or the defendants paid the plaintiffs with a "bonus" payment intended to mask regular hourly rate payments for overtime hours worked. Id., ¶ 25. In addition, the defendants appropriated tips that were meant for the plaintiffs. Id., ¶¶ 4, 28. Finally, the defendants regularly deleted hours from paychecks of the plaintiffs. Id., ¶ 29.
The actions alleged in the complaint, if proven, violate the provisions of the FLSA. Further, the allegations in the complaint [#1] constitute substantial allegations that the plaintiffs were together the victims of a single decision, policy, or plan. The arguments of the defendants to the contrary are not persuasive.
The defendants argue also that the motion of the plaintiffs is moot because the defendants made an offer of judgment to the named plaintiffs which, purportedly, "would fully satisfy their claims including costs and attorney's fees." Response [#12], p. 7. The United States Court of Appeals for the Tenth Circuit has held that full satisfaction offers of judgment under FED. R. CIV. P. 68 made to named plaintiffs in a Rule 23 class action do not moot the class claims. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1249 (10th Cir. 2011). Of course, the present case is not a Rule 23 class action. However, I agree with the analysis of Chief United States District Judge Marcia S. Krieger in Perez v. Pinon Mgmt., Inc., No. 12-CV-00653-MSK-MEH, 2013 WL 1149567 (D. Colo. Mar. 19, 2013). In Perez, Chief Judge Krieger concluded that "if called upon to address whether the rule in Lucero applies to opt-in collective actions, such as those under the FLSA, the 10th Circuit is likely to conclude that it does." Id. at *6. Thus, I conclude that the offer of judgment does not moot the claims of the plaintiffs.
In addition, the offer of judgment made by the defendants is ineffective. A defendant may not invoke Rule 68 when it presents a plaintiff with an ambiguous offer of judgment. This is so because "the offeree must know what is being offered in order to be responsible for refusing the offer." Arkla Energy Res., a Div. of Arkla, Inc. v. Roye Realty & Developing, Inc., 9 F.3d 855, 867 (10th Cir.1993). The offer of judgment tendered by the defendants in this case provides that "the amount of damages would have to be determined at a later point...." Reply [#15], Exhibit 1 [#15-1] (offer of judgment). ...