United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE
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).
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).
Motion to certify
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).
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
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,
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.
Defendant's motion for decertification
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).
discovery, district courts reassess whether an FLSA class is
“similarly situated” pursuant to the
FLSA. 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.” Id. (quoting
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1103 (10th Cir. 2001)).
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.
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).
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