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McSwiggin v. Omni Limousine

United States District Court, D. Nevada

January 23, 2017

CHRISTY MCSWIGGIN and KEVIN MCSWIGGIN, Plaintiffs,
v.
OMNI LIMOUSINE, Defendant.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE

         Presently before the court is named plaintiffs Christy and Kevin McSwiggin's motion to certify a class pursuant to Federal Rule of Civil Procedure 23, defendant Omni Limousine's motion for decertification of the conditional class formed pursuant to the Fair Labor Standards Act (“FLSA”), and defendant's objection to Magistrate Judge Koppe's September 23, 2016, order denying defendant's second motion to strike. (ECF Nos. 35, 36, 68). The parties have filed responses and replies for the first two motions, and plaintiffs have filed a response to defendant's objection. (ECF Nos. 41, 43, 53, 55, 69).

         Plaintiffs filed a class action complaint on December 19, 2014, alleging seven causes of action against defendant that involve their compensation for their employment as “Chauffeurs/Limousine drivers.” (ECF No. 1 at 5). On July 16, 2015, this court granted plaintiffs' motion for circulation pursuant to 29 U.S.C. § 216(b), allowing plaintiffs twenty-eight days to provide notice and establishing an opt-in period for putative class members spanning 90 days. (ECF Nos. 21, 63).

         A. Motion to certify

         On July 29, 2016, this court denied plaintiffs' motion to extend time to provide notice, finding that plaintiffs' realization that no notice had been given-fifty-one days after the close of time to do so-was inexcusable neglect. (ECF No. 63). Reasoning that “prospective plaintiffs cannot opt-in to litigation of which they have not received notice, ” this court also deemed the opt-in period as expired. (Id. at 7).

         Federal Rule of Civil Procedure 23(a) mandates that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if . . . the class is so numerous that joinder of all members is impracticable.” A class's certification may be questioned for failure to satisfy this numerosity requirement. See Harik v. California Teachers Ass'n, 326 F.3d 1042, 1051 (9th Cir. 2003). A class comprised of an insufficient number of members will not be allowed to form. See Id. (citing General Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980)) (“The Supreme Court has held [a fifteen-person class] is too small.”).

         In this case, plaintiffs have submitted four notices of filing of consent to joinder. (ECF Nos. 13, 39, 50, 61). Together, these notices indicate that fifteen individuals wish to participate in the litigation. See (ECF No. 13, 39, 50, 61). Yet, plaintiffs acknowledge that the deadline for opting into the litigation was November 16, 2015. (ECF No. 29). All notices but the first-which involved only six individuals-were filed after that deadline. (ECF Nos. 13, 39, 50, 61).

         Even if all of the joinders were timely, the proposed class still would fail the numerosity requirement. See Harik, 326 F.3d at 1051. This is true even by plaintiffs' own arguments. See (ECF No. 35 at 3) (citing Int'l Molders' & Allied Workers' Local Union No. 164 v. Nelson, 102 F.R.D. 457, 461 (N.D. Cal. 1983)). Therefore, plaintiff's motion is denied, and the purported class will not be certified under Rule 23.

         B. Defendant's motion for decertification

         Employees, for themselves and “employees similarly situated, ” may sue their employers under the FLSA. 29 U.S.C. § 216(b); see Senne v. Kansas City Royals Baseball Corp., 315 F.R.D. 523, 585 (N.D. Cal. 2016). A collective action under the FLSA is certified at two stages. See, e.g., Senne, 315 F.R.D. at 585. This court has already ruled to conditionally certify this FLSA class during the “notice” stage, which requires a putative class seeking conditional certification to satisfy a low factual threshold. See Greene v. Alan Waxler Grp. Charter Servs., LLC, 2014 WL 2919162, at *2 (D. Nev. June 26, 2014) (quoting Small v. Univ. Med. Ctr. of S. Nev., 2013 WL 3043454, at *1 (D. Nev. June 14, 2013); see also (ECF No. 21).

         After discovery, district courts reassess whether an FLSA class is “similarly situated” pursuant to the FLSA.[1] See Greene, 2014 WL 2919162, at *2. To that end, this court examines “(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 the [proper] filings.”[2] Id. (quoting Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)).

         As an initial matter, any potential class asserted under the FLSA in this case must be restricted to those six individuals indicated in the timely notice of filing of consents to joinder. (ECF No. 13). To do otherwise would effectively eviscerate this court's July 29, 2016, order denying plaintiffs' motion to extend the notice and opt-in deadlines. (ECF No. 63). Moreover, plaintiff has offered declarations from each individual in that putative class.

         Christy McSwiggin indicates that she did not receive additional overtime compensation when she worked more than 40 hours a week, was required to perform actions before, after, and in-between driving tasks without compensation, “[defendant] . . . regulated [her] appearance, conduct, and activities while performing them, ” and had driven an interstate trip. (ECF No. 43-4 at 30-34).

         Kevin McSwiggin similarly states that he is not paid overtime for alleged labor performed prior to his shift, waited or worked between rides without compensation for about two hours each day although his behavior and appearance was regulated-purportedly pursuant to defendant's Chauffeur Handbook, and he echoes Christy's sentiment that “[i]t is my belief that, outside of a few select ...


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