United States District Court, D. Colorado
SONDRA BEATTIE, individually and on behalf of all other similarly situated individuals, and FRANCIS HOUSTON, JR., individually and on behalf of all other similarly situated individuals, Plaintiffs,
TTEC HEALTHCARE SOLUTIONS, INC., and TTEC HOLDINGS, INC., Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' motion for
reconsideration of the Court's order granting conditional
certification in this case. (ECF No. 86.) In the alternative,
Defendants seek certification of an interlocutory appeal and
an emergency stay. The motion has been fully briefed and is
now ripe for review. (ECF Nos. 91, 92, 97.) For the reasons
below, the Court denies the motion in its entirety.
first argue that this case became moot when the Court
compelled the original Plaintiffs to arbitrate their claims,
and therefore reconsideration is necessary to correct clear
error and prevent manifest injustice.
motion for reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the
controlling law.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “It is
not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior
argument is based on the premise that the Plaintiffs who have
opted in to the case are not parties. Although the Tenth
Circuit Court of Appeals has not yet spoken on this issue,
other federal appellate courts have concluded that plaintiffs
who opt in to a collective action have party status. See,
e.g., Campbell v. City of Los Angeles, 903 F.3d
1090, 1104 (9th Cir. 2018); Mickles v. Country Club
Inc., 887 F.3d 1270, 1278 (11th Cir. 2018); Halle v.
W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 225
(3d Cir. 2016); see also 7B Charles Alan Wright
& Arthur R. Miller, Federal Practice and
Procedure § 1807 (3d ed. 2016). Defendants cite no
controlling or persuasive authority to the contrary.
the Court concludes this case did not become moot when the
original Plaintiffs were compelled to arbitrate their claims
because numerous opt-in Plaintiffs had already joined the
case, and their claims remained pending.
next argue that the Court's order granting conditional
certification should be certified for interlocutory appeal
because it presents a controlling issue of law:
“Whether a district court has discretion to order that
notice of a pending FLSA collective action be sent to
employees who have entered into valid and enforceable
arbitration agreements.” (ECF No. 86.)
28 U.S.C. § 1292(b), an order not otherwise appealable
may be certified for interlocutory appeal if it
“involves a controlling issue of law as to which there
is a substantial ground for difference of opinion and . . .
an immediate appeal from the order may materially advance the
ultimate termination of the litigation.”
framing of the issue is problematic because Plaintiffs
dispute the validity and enforceability of the arbitration
agreements. As a result, Defendants' reliance on
Brayman v. KeyPoint Gov't Sols., Inc., No.
18-cv-0550-WJM-NRN, 2019 WL 3714773 (D. Colo. Aug. 7, 2019),
and In re JPMorgan Chase & Co., 916 F.3d 494
(5th Cir. 2019), is misplaced.In Brayman, the
plaintiffs waived any challenge to the class action waiver at
issue, and therefore the court determined that informing
persons subject to the arbitration agreement that they have a
right to join a collective action when they have
prospectively waived that right would be inappropriate. 2019
WL 3714773, at *8. Similarly, in JPMorgan Chase, the
plaintiffs did not contest the validity of the relevant
arbitration agreements. 916 F.3d at 498.
Plaintiffs dispute whether they have entered into valid and
enforceable agreements. Although some of them have been
compelled to arbitrate their claims, twenty-three of them
have prevailed on Defendants' motion to compel
arbitration. (ECF No. 82.) Additional Plaintiffs have since
joined the case (ECF Nos. 84, 87, 93, 94), and two motions to
compel are still pending (ECF Nos. 85, 96). Setting aside any
issues potential opt-in Plaintiffs may wish to raise with
respect to the validity and enforceability of potential
arbitration agreements that are not presently before the
Court, there are still disputed issues regarding whether
Plaintiffs who are already in the case have entered into
valid and enforceable arbitration agreements. Under such
circumstances, the order granting conditional certification
cannot be said to involve a controlling issue of law.
the Court is not persuaded that there is a substantial ground
for difference of opinion on the underlying issue. See
Camara v. Mastro's Rests. LLC, 340 F.Supp.3d 46, 59
(D.D.C. 2018) (“The majority of district courts to have
addressed the issue have determined that the fact that some
employees have signed arbitration agreements does not
preclude conditional certification as to all employees”
(quotation omitted)); Meyer v. Pandera Bread Co.,
344 F.Supp.3d 193, 206 (D.D.C. 2018). Defendants cite no
factually and procedurally analogous cases where courts have
decided that conditional certification is not appropriate
based on the defendant's mere allegation that many of the
potential opt-in plaintiffs are precluded from participating
in a collective action because they are bound by arbitration
factors weigh against certification. The Court is not
persuaded that certification would advance the ultimate
termination of this litigation. There is no apparent reason
why this issue cannot be resolved efficiently at the second
stage of the process for determining whether putative
collective action members in an FLSA action are
“similarly situated.” See Thiessen v. Gen
Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.
2001). The Tenth Circuit recently declined to weigh in on an
order that raised substantially similar issues. See In re
KeyPoint Gov't Sols., Inc., No. 19-1172 (10th Cir.
Jun. 11, 2019) (denying petition for writ of mandamus). And
Defendants did not request certification until after the
Court issued a ruling unfavorable to them. See Armijo v.
Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988).
the Court will neither permit Defendants to file an