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Martinez v. Rial De Minas, Inc.

United States District Court, D. Colorado

September 26, 2017

IDALY MARTINEZ on her own behalf and on behalf of all others similarly situated, Plaintiff,
v.
RIAL DE MINAS, INC., RIAL DE MINAS II, INC., RIAL DE MINAS III, INC., RIAL DE MINAS IV, INC., JUAN LUEVANOS, MARIA LUEVANOS, and, MELISSA LUEVANOS, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on the parties' Joint Motion to Adopt Parties' Stipulation of Preliminary Certification of a Fair Labor Standards Act § 216(b) Class and a Fed.R.Civ.P. 23 Class and for Court-Authorized Notice to Class Members [#28][1] (the “Motion”). Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion was referred to this Court for appropriate disposition. The Court has reviewed the Motion [#28], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#28] be GRANTED.

         I. Background

         Plaintiff initiated this putative class action lawsuit against Defendants Rial de Minas, Inc., Rial de Minas II, Inc., Rial de Minas III, Inc., Rial de Minas IV, Inc., Juan Luevanos, Maria Luevanos, and Melissa Luevanos (collectively “Defendants”). Am. Compl. [#23] at 1. Plaintiff alleges that Defendants deleted hours worked from employees' paychecks and refused to pay employees overtime wages in violation of the Fair Labor Standards Act (the “FLSA”) and the Colorado Minimum Wage Act (the “CMWA”). Id. at ¶¶ 1-3; 29 U.S.C. § 201 et seq.; Colo. Rev. Stat. § 8-6-101 et seq. Plaintiff's Amended Complaint [#23] contains two claims for relief: (1) an FLSA claim for failure to pay overtime premiums; and (2) a CMWA claim for failure to pay overtime premiums. Am. Compl. [#23] at 8-9.

         The parties jointly seek preliminary certification of an FLSA § 216(b) collective action for settlement purposes regarding the FLSA claim, as well as certification of a Fed.R.Civ.P. 23 class for settlement purposes regarding the CMWA claim. Motion [#28] at 1-2. The parties also request authorization for a class administrator to distribute notice to potential class members to notify them of their right to opt-in to the FLSA collective action and their right to opt-out of the Rule 23 class. Id.

         II. FLSA Collective Action A. Standard

         The FLSA permits collective actions where allegedly aggrieved employees are “similarly situated.” 29 U.S.C. § 216(b). The determination of whether employees are similarly situated occurs in two stages: (1) a preliminary “notice” stage, and then (2) a second determination, at the end of discovery, under a stricter standard. Torres-Vallejo v. Creativexteriors, Inc., 220 F.Supp.3d 1074, 1091 (D. Colo. 2016).

         The standard for preliminary certification, at the initial notice stage, is lenient and plaintiffs are required to show “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (internal quotation marks omitted); see also Turner v. Chipotle Mexican Grills, Inc., 123 F.Supp.3d 1300, 1309 (D. Colo. 2015) (recognizing that preliminary certification should follow a “permissive joinder standard” and “presumptively allow workers bringing the same statutory claim against the same employer to join as a collective”).

         Participation in an FLSA collective action requires potential plaintiffs to affirmatively opt-in to the proceeding. Abdulina v. Eberl's Temp. Servs., Inc., No. 14-cv-00314-RM-NYW, 2015 WL 12550929, slip op. at *3 (D. Colo. April 27, 2015). Once plaintiffs satisfy the preliminary certification standard, the Court may approve notice to be sent to all individuals who may be eligible to participate in the collective action. Torres-Vallejo, 220 F.Supp.3d at 1091.

         B. Collective Action Requirements

         The parties seek preliminary certification of an FLSA collective action for the purpose of notifying potential plaintiffs and providing them the opportunity to opt-in. Motion [#28] at 3. Preliminary certification of an FLSA collective action is determined under a lenient, permissive standard and conditional certification is routinely allowed. Abdulina, 2015 WL 12550929, at *4 (stating that “[c]onditional certification has been denied only where the complaint was wholly conclusory in nature, the supporting affidavit relied on hearsay from unidentified sources, and the nature of the violation was rendered ambiguous by the particular circumstances of the only named plaintiff”).

         Defendants stipulate to Plaintiff's assertion that Defendants' “employees who worked between August 1, 2013, and the present are similarly situated” for the purposes of preliminary collective action certification. Motion [#28] at 4. Plaintiff further maintains that she and other hourly employees were all subject to Defendants' common policy of deleting hours worked from employees' paychecks and failing to pay overtime wages. Am. Compl. [#23] at 8. Additionally, Plaintiff submitted declarations from two former employees of Defendants, attesting to the same allegations that Defendants deleted hours worked from employees' paychecks and did not pay employees overtime. Decl. of Ramirez [#28-1] at 1; Decl. of Arceo [#28-2] at 1.

         Based on the foregoing, the Court finds that Plaintiff has alleged sufficient facts to demonstrate that preliminary certification is appropriate at this stage and respectfully recommends conditionally certifying an FLSA collective action. See Abdulina, 2015 WL 12550929, at *4.

         C. Notice

         The parties ask the court to approve the distribution, by a class administrator, of proposed notice forms to potential opt-in plaintiffs for the FLSA collection action. Motion [#28] at 1, 13. The parties are in agreement about the proposed forms of notice and stipulate that potential opt-in plaintiffs will be notified by first-class U.S. Mail, in both English and Spanish, and that there will be a 60-day opt-in period for potential class members to return the opt-in forms to Plaintiff's counsel. Id. at 13-14.

         The proposed notice and consent form appears to be fair and accurate. SeeAbdulina, 2015 WL 12550929, at *7. In light of this, the Court respectfully recommends that the proposed notice and consent ...


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