United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE United States District Judge.
before the Court is the April 13, 2017 Report and
Recommendation (“R&R”) of U.S. Magistrate
Judge Michael E. Hegarty (ECF No. 174), recommending granting
in part and denying in part plaintiffs' motion for
conditional collective action certification (“the
motion for conditional certification”) (ECF No. 121),
and denying defendants' Simply Right, Inc. (“Simply
Right”), Beatrice Permann, Daniel Kilgore, and Cinemark
USA, Inc.'s (“Cinemark, ” and collectively,
“defendants”) motion to strike (ECF No. 149).
Also pending before the Court is plaintiffs' motion for
status conference (ECF No. 177).
Magistrate Judge recommended granting plaintiffs' motion
for conditional certification in part because plaintiffs had
made substantial allegations that the putative collective
action members were similarly situated as to plaintiffs'
minimum-wage and overtime claims under the Fair Labor
Standards Act (“FLSA”). (ECF No. 174 at 11-16.)
As a result, the Magistrate Judge recommended certifying a
collective action defined as: “All Simply Right
employees who cleaned Cinemark theaters on or after May 7,
2012 who brought non-employees to help them clean and/or who
worked more than forty hours per week without payment of
one-and-one-half times their regular rate for those hours
worked over forty.” (Id. at 17.) The
Magistrate Judge recommended, though, denying plaintiffs'
motion for conditional certification as to the proposed
notice to be sent to putative members because, in various
respects, the notice was deficient. (Id. at 18-19.)
The Magistrate Judge recommended that the parties confer as
to a mutually agreeable notice and consent to join form, and
for defendants to provide contact information and dates of
employment of putative members once the notice was finalized.
(Id.) The Magistrate Judge also forewarned the
parties that they would have 14 days to file specific,
written objections to the R&R. (Id. at 2 n.1.)
days later, Cinemark and Simply Right filed the only timely
objections to the R&R. (ECF Nos. 175, 176.) Fourteen days
thereafter, plaintiffs filed a response to both Cinemark and
Simply Right's objections. (ECF No. 181.)
Review of a Magistrate Judge's Report and
district court may refer pending motions to a magistrate
judge for entry of a report and recommendation. 28 U.S.C.
§636(b)(1)(B); Fed.R.Civ.P. 72(b). The court is free to
accept, reject, or modify, in whole or in part, the findings
or recommendations of the magistrate judge. 28 U.S.C.
§636(b)(1); Fed.R.Civ.P. 72(b)(3). A party is entitled
to a de novo review of those portions of the report
and recommendation to which specific objection is made.
See Fed.R.Civ.P. 72(b)(2), (3). “[O]bjections
to the magistrate judge's report and recommendation must
be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.”
United States v. 2121 E. 30 St., 73 F.3d 1057, 1060
(10th Cir. 1996). Furthermore, arguments not raised before
the magistrate judge need not be considered by this Court.
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996) (“Issues raised for the first time in objections
to the magistrate judge's recommendation are deemed
no timely objection is filed, the court need only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.” Fed.R.Civ.P.
72, Adv. Comm. Notes, subdivision (b) (1983); see also
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(“In the absence of timely objection, the district
court may review a magistrate's report under any standard
it deems appropriate.”).
Legal Standard for Certification
Thiessen v. Gen. Electric Capital Corp., 267 F.3d
1095, 1105 (10th Cir. 2001), the Tenth Circuit Court of
Appeals concluded it was not an abuse of discretion for a
district court to apply a two-stage “ad hoc”
process in order to determine whether putative collective
action members were “similarly situated” for
purposes of § 216(b) of the FLSA. At the initial
“notice” stage, this Court “requires
nothing more than substantial allegations that the putative
class members were together the victims of a single decision,
policy, or plan.” Id. at 1102 (quotations and
alteration omitted). Then, at the conclusion of discovery,
this Court makes a second, stricter determination of
“similarly situated.” Id. at 1103. At
this second stage, the Court “reviews several factors,
including (1) disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available
to defendant which appear to be individual to each plaintiff;
(3) fairness and procedural considerations; and (4) whether
plaintiffs made [any] filings required by [statute] before
instituting suit.” See id. (quotation
ask that this Court not follow the precise two-step process
outlined in Thiessen. Instead, defendants want this
Court to enforce a “heightened standard” of
“similarly situated review that is more than the
“notice” stage but less than the second stage
outlined in Thiessen. (ECF No. 175 at 12-13; ECF No.
176 at 5-6.) The Court will not do so. As an initial matter,
Cinemark is correct that the Tenth Circuit has recently
discussed Thiessen, in an entirely different
procedural context to the one here, but that discussion does
not help defendants in any way.
In re Chipotle Grill, Inc., Case No. 17-1028 (Mar.
27, 2017) (unpublished), the Tenth Circuit was faced with a
petition for writ of mandamus, seeking vacatur of a district
court's joinder of 10, 000 opt-in plaintiffs in a FLSA
collective action. Id., slip op. at 1. The Tenth Circuit
observed that, in Thiessen, three different
approaches to determining who was “similarly
situated” were discussed. Id., slip op. at 3.
Those three approaches were: “the ad hoc approach, the
Rule 23 approach, and the spurious approach.”
Id. In In re Chipotle Grill, the district
court used something akin to the spurious approach, allowing
individuals bringing the same statutory claim against the
same employer to join as a collective, with the understanding
that individuals could be challenged and severed from the
collective if the basis for their joinder proved erroneous.
Id., slip op. at 4-5. The Tenth Circuit concluded
that this approach was not such a gross abuse of discretion
to warrant mandamus relief, and thus, denied the petition.
Id., slip op. at 5-9 & n.1. The Tenth Circuit
reiterated that, in denying the petition, it was not making a
“definitive determination on the merits” of the
three approaches for analyzing “similarly
situated.” Id., slip op. at 6 n.1.
thing that jumps off the pages of the Tenth Circuit's
order, at least in the context of the argument defendants
present, is that defendants' approach-some alternative
take on the ad hoc approach-is not one of the three
approaches to determining “similarly situated”
that the Tenth Circuit has identified as appropriate. In
fact, never has the Tenth Circuit even mentioned
defendants' “heightened standard, ” let alone
identified it as a potentially appropriate way to assess
“similarly situated.” All that In re Chipotle
Grill and Thiessen suggest is that, on
appellate review, a district court is unlikely to be found to
have abused its discretion in using one of three approaches
identified in those opinions. Defendants'
“heightened standard” also suffers from the
infirmity of muddying fairly clear waters. The ad hoc
approach has two clear stages, with two clear standards to
apply-a comparatively black and white legal test.
Defendants' test, though, would throw a whole set of grey
shades over the ad hoc approach by requiring the Court to
gauge how far discovery has advanced and asking whether that
is far enough to apply defendants' “heightened
standard.” This obviously invites the question, how
much discovery is enough to apply the “heightened
standard”? The Court has no intention of resolving that
question in every FLSA collective action case; not when there
is an easily manageable ad hoc approach that does not require
it. As a result, defendants' objections in this regard
The Motion to Strike
Simply Right nor Cinemark raises any objection to the
Magistrate Judge's recommendation to deny the motion to
strike. As a result, the Court ADOPTS that recommendation,
and DENIES defendants' motion to strike (ECF No. 149).
Matters That are Moot
22, 2017, this Court entered an Opinion and Order, inter
alia, granting Cinemark's motion for summary
judgment, finding Cinemark not to be a joint employer for
purposes of the FLSA. (ECF No. 185.) In its objections,
Cinemark argues that the Magistrate Judge erred in finding
the putative collection action to be “similarly
situated” with respect to whether Cinemark was the
joint employer of its putative members. (ECF No. 175 at
6-11.) In response, plaintiffs assert that there is
“voluminous” evidence in the record of
Cinemark's joint employer status, and, at this stage, the
Court need not take up Cinemark's potential liability and
need only find substantial allegations that Cinemark was a
obvious problem for plaintiffs is that the Court has already
taken up, by virtue of both Cinemark and plaintiffs'
motions for summary judgment, the issue of whether Cinemark
was a joint employer. Thus, the Court need not rely upon
plaintiffs' allegations, substantial or otherwise. As a
result, because the Court has found that Cinemark is not a
joint employer, the Court finds plaintiffs' motion for
conditional certification to be moot to the extent it seeks
certification of a collective action against
Simply Right's Objections to the
Right argues that the Magistrate Judge erred in providing
relief to the stayed plaintiffs. (ECF No. 176 at 6-9.) Simply
Right argues that this was error because the stayed
plaintiffs' claims are pending arbitration, and any
ruling on those claims would be on the merits, which is
prohibited. (Id. at 7-8.) Simply Right also asserts
that the parties agreed to submit the stayed plaintiffs'
claims to arbitration. (Id. at 8-9.) In response,
plaintiffs assert that ruling on their motion for conditional
certification is not a merits ruling, defendants have
stipulated that the motions to stay various plaintiffs would
not affect the motion for conditional certification, and no
party has been referred to arbitration. (ECF No. 181 at
Court agrees with plaintiffs. First, Simply Right fails to
specifically address the Magistrate Judge's finding that
ruling on the motion for conditional certification would
not involve a merits determination. (See
ECF No. 174 at 10-11.) Instead, Simply Right cites to the
Magistrate Judge's finding, with respect to the motions
for summary judgment, that ruling on those motions would
result in a merits determination. (See ECF No. 176
at 7-8.) Apples and oranges spring to mind, given that the
motions for summary judgment and the motion for conditional
certification are entirely different beasts. Second, even if
the Court were to put aside the lack of specific objections
to the Magistrate Judge's finding, Simply Right fails to
adequately explain how ruling on the motion for conditional
certification results in a merits determination. Deciding
whether the putative collective action is “similarly
situated” on a conditional basis is not a merits
determination; it is a ruling designed to simply allow (or
not allow) for the mailing of notice to putative members.
the Court finds Simply Right's reliance upon the
parties' agreement to arbitrate certain plaintiffs'
claims to be, at best, disingenuous, given that both
stipulations contained language that the stipulations would
not affect any motion for conditional certification.
(See ECF No. 40 at 2; ECF No. 47 at 2.) Although it
is not precisely clear what the parties meant by saying the
motion for conditional certification would be
“unaffected” by the stipulations, the Court will
not allow Simply Right to try and use the stipulations as
evidence in its favor when the language of the same could so
easily be construed against it. Put simply, to the extent
Simply Right wished for the “unaffected” language
to recognize a carve-out preventing the stayed plaintiffs