United States District Court, D. Colorado
VICTOR DIAZ, on his own behalf and on behalf of all others similarly situated, Plaintiff,
v.
LOST DOG PIZZA, LLC, DANIEL WARREN LYNCH, and JEFF SMOKEVITCH, Defendant.
ORDER
GRANTING IN PART JOINT MOTION TO ADOPT PARTIES'
STIPULATION OF PRELIMINARY CERTIFICATION OF A FAIR LABOR
STANDARDS ACT § 216(B) CLASS AND CERTIFICATION OF A FED.
R. CIV. P. 23 CLASS AND FOR COURT-AUTHORIZED NOTICE TO CLASS
MEMBERS
William J. Martínez, United States District Judge
Now
before the Court in this action brought under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201 et seq., and the Colorado Minimum Wage Act (the
“Wage Act”), C.R.S. §§ 8-6-101 et
seq., is the parties' Joint Motion to Adopt
Parties' Stipulation of Preliminary Certification of a
Fair Labor Standards Act § 216(b) Class and
Certification of a Federal Rule of Civil Procedure 23 Class
and for Court-Authorized Notice to Class Members. (ECF No.
28.)
I.
BACKGROUND
As
alleged in the Complaint, Plaintiff and the other members of
the proposed class were hourly employees at Defendants'
Brown Dog Pizza restaurant in Telluride, Colorado. (ECF No. 1
¶ 1.) Plaintiff worked for Defendants from approximately
2009 through April 2017. He alleges Defendants refused to pay
him and other members of the proposed class overtime for
hours worked beyond forty each workweek and beyond twelve
each workday, in violation of the FLSA and the Wage Act.
(Id. ¶¶ 2-3.) For example, Plaintiff
alleges from he worked 107.67 hours from July 16-31, 2015 and
99.61 hours from September 5-18, 2016, and that Defendants
failed to pay him overtime as required during those periods.
(Id. ¶ 17.)
Plaintiff
alleges that Defendants subjected not only himself, but all
their hourly employees to a “common policy of refusing
to pay overtime wages for hours worked beyond forty each
workweek and beyond twelve each workday.” (Id.
¶ 29; see also Id. ¶ 18.)
Further,
Plaintiff alleges that upon separation, Defendants did not
pay him all of his earned, vested and determinable wages, and
failed to pay other employees all of their earned and vested
wages upon termination, as is required under the Wage Act.
(Id. ¶¶ 6, 19.)
As set
out in the present Joint Motion, and in the parties'
related filings, since this case was filed in September 2017,
the parties have been working to negotiate a settlement
agreement. Thus they have jointly stipulated to the
preliminary FLSA and Rule 23 class certification and notice
procedure, as proposed in the Joint Motion, and represent
that at the end of the proposed notice and opt-in/opt-out
period, the parties will have “the benefit of full
information as to potential damage” and “intend
to negotiate the monetary terms of settlement” upon
receipt of that information. (ECF No. 28 at 2.) The parties
represent that “[u]pon agreement to terms of
settlement, ” they will submit their settlement
agreement to the Court for approval, to be followed by a
final fairness hearing. (Id.)
II.
LEGAL STANDARDS
A.
Rule 23 Class Certification Standards
A party
seeking class certification must demonstrate that the four
prerequisites of Federal Rule of Civil Procedure 23(a) are
clearly met. Shook v. El Paso Cnty, 386 F.3d 963,
971 (10th Cir. 2004); see also Tabor v. Hilti, Inc.,
703 F.3d 1206 (10th Cir. 2013). These threshold elements are:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common
to the class; (3) the claims or defenses of the
representative party are typical of the claims or defenses of
the class; and (4) the representative parties will fairly and
adequately protect the interests of the class. Fed.R.Civ.P.
23(a). A plaintiff who meets these threshold requirements
must then demonstrate that the action falls within one of the
three categories of lawsuits set forth in Rule 23(b).
Shook, 386 F.3d at 971. Here, Plaintiff seeks
certification pursuant to Rule 23(b)(3). (ECF No. 28 at 7,
11-12.)
In
determining the propriety of a class action, the question is
not whether a plaintiff has stated a cause of action or will
prevail on the merits, but rather whether the requirements of
Rule 23 are met. Anderson v. City of Albuquerque,
690 F.2d 796, 799 (10th Cir. 1982). When deciding whether the
proposed class meets the requirements of Rule 23, the Court
accepts the plaintiff's substantive allegations as true,
though it need not blindly rely on conclusory allegations and
may consider the legal and factual issues which the complaint
presents. Shook, 386 F.3d at 968; see also
Vallario v. Vandehey, 554 F.3d 1259, 1265 (10th Cir.
2009). The Court should not pass judgment on the merits of
the case, but must conduct a “rigorous analysis”
to ensure that the requirements of Rule 23 are met. D.G.
ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th
Cir. 2010). The decision whether to grant or deny class
certification “involves intensely practical
considerations and therefore belongs within the discretion of
the trial court.” Tabor, 703 F.3d. at 1227.
B.
FLSA Collective Action Conditional Certification
Standards
The
FLSA permits collective actions where the allegedly aggrieved
employees are “similarly situated.” 29 U.S.C.
§ 216(b). Whether employees are similarly situated is
judged in two stages: a preliminary or “notice
stage” (at issue here) and then a more searching,
substantive stage, usually after the close of discovery.
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102-03, 1105 (10th Cir. 2001). At the notice stage, a
plaintiff must offer “nothing more than substantial
allegations that the putative [collective action] members
were together the victims of a single decision, policy, or
plan.” Id. at 1102 (internal quotation marks
omitted); see also Boldozier v. Am. Family Mut. Ins.
Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005) (applying
Thiessen standard).
If the
plaintiff meets this standard, then the Court may order that
the defendant provide contact information for all employees
and former employees that may be eligible to participate in
the collective action, and the Court may approve a form of
notice to be sent to all of those individuals. See
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-74
(1989). Such notice is often necessary because, unlike class
actions under Federal Rule of Civil Procedure 23, FLSA
collective actions require a party to opt in to the
litigation rather than opt out of the class. See 29
U.S.C. § 216(b) ("No employee shall be a party
plaintiff to any [collective] 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.").
Obviously, current or former employees cannot opt in if they
do not know about the pending action.
III.
PROPOSED CLASS
The
parties have stipulated to the following class definitions:
(1) As to Plaintiff's Wage Act class action claims, a
class defined as:
All hourly employees who worked at Brown Dog Pizza on or
after September 14, 2015 and who were not paid overtime wages
for overtime hours worked.
(2) As to Plaintiff's FLSA collective action claims, a
group defined as:
All hourly employees who worked at Brown Dog Pizza on or
after September 14, 2014 and who were not paid overtime wages
for overtime hours worked.
(ECF No. 28 at 3, 7.)
III.
ANALYSIS
A.
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