United States District Court, D. Nevada
CATHY BENSON, et. al, Plaintiffs,
HG STAFFING, LLC; MEI-GSR HOLDINGS, LLC, d/b/a GRAND SIERRA RESORT; and DOES 1 through 50, inclusive, Defendants.
R. HICKS, UNITED STATES DISTRICT JUDGE.
Fair Labor Standards Act ("FLSA") case, die
plaintiffs moved to certify the collective action for
discovery and trial purposes under 29 U.S.C. § 216(b).
ECF No. 26. The defendants opposed the motion, and the
plaintiffs replied. ECF Nos. 39, 44. Because the proposed
class has yet to move for conditional certification and has
yet to join with opt-in plaintiffs in this action, the court
now denies the motion without prejudice.
case stems from an ongoing case before this court:
Sargant et. al v. HG Staffing, et. al, Case No.
3:13-cv-00453-LRH-WGC. In Sargant, the court
decertified a conditionally certified collective action
because the plaintiffs were not "similarly
situated" as required by me FLSA. 171 F.Supp.3d 1063 (D.
Nev. 2016). After the class was decertified in
Sargent, the plaintiffs herein filed an independent
complaint to initiate this proceeding. ECF No. 1. The
plaintiffs amended the complaint, ultimately alleging one
cause of action: the failure to pay overtime wages in
violation of the FLSA. ECF No. 14. The defendants moved to
dismiss the amended complaint, which the court granted in
part and denied in part. ECF Nos. 15, 20. The defendants then
answered the amended complaint. ECF No. 23. The proposed
collective action has yet to be conditionally certified and
has yet to be joined by opt-in plaintiffs.
now seek to certify the proposed collective action "for
discovery and trial purposes" based on a narrower class
than that presented in Sargent. Compare ECF No. 26
at 4 (describing the proposed class as: "[a]ll current
and former non-exempt employees employed by Defendants, as
room attendants and were required to perform pre-shift work
activities without compensation at any time during the
relevant time period alleged herein") with
Sargent, 3:13-cv-00453-LRH-WGC at ECF No. 144 at 2
(describing the proposed class as: "[a]ll non-exempt
hourly workers employed by Defendants at any time from June
21, 2009, until the date of judgment after [trial]
herein"). The defendants opposed the certification
motion, and the plaintiffs replied. ECF Nos. 39, 44.
plaintiffs seek certification of the proposed collective
action for discovery and trial purposes, asserting the
FLSA-procedural-process requires certification and the
proposed class meets the criteria for a collective-action
certification. ECF No. 26. The defendants oppose the
certification, arguing the doctrine of issue preclusion bars
the proposed certification, the first-to-file rule bars the
proposed certification, the FLSA procedures have yet to be
fulfilled by the plaintiffs, and the plaintiffs do not meet
the requirements for a collective-action certification. ECF
No. 39. The court finds that FLSA procedures have yet to be
fulfilled by the plaintiffs and denies the motion on this
basis. As a result, the court does not reach the parties'
plaintiffs' motion to certify the collective action for
discovery and trial purposes must fail because the plaintiffs
have yet to seek conditional certification and have yet to
join with opt-in plaintiffs. Under the FLSA, employees may
sue their employers when the employer fails to pay overtime
wages. 29 U.S.C. § 207; Barrentine v. Arkansas-Best
Frieght Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437,
67 L.Ed.2d 641 (1981). Employees may bring suit as a
collective action "for and in behalf of... themselves
and other employees similarly situated." 29 U.S.C.
§ 216(b). The court determines whether a proposed
collective action should be certified by "[evaluating]
whether the proposed lead plaintiffs and the proposed
collective action group are 'similarly situated' for
purposes of [29 U.S.C.] § 216(b)." Leuthold v.
Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal.
2004) (citation omitted). "Neither the Supreme Court nor
the Ninth Circuit have interpreted the term ['similarly
situated']." Kress v. PricewaterhouseCoopers,
LLP, 263 F.R.D. 623, 627 (E.D. Cal. 2009) (citing
Leuthold, 224 F.R.D. at 466). But in this circuit,
collective-action certification occurs in two steps. Id.;
see also Dualan v. Jacob Transportation Servs., LLC, 172
F.Supp.3d 1138, 1144 (D. Nev. 2016) (stating the court would
follow "the courts in [the Ninth Circuit] by considering
certification in two stages.").
first step, or the notice stage, the court determines whether
the proposed-collective-action group should be conditionally
certified and the members of the proposed group be given
notice of the action. Leuthold, 224 F.R.D. at 466;
see also Anderson v. Cagle 's, Inc., 488 F.3d
945, 952-53 (11th Cir. 2007). "[T]he importance of
certification ... is that it authorizes either the parties,
or the court itself, to facilitate notice of the action to
similarly situated employees." Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir.
2008). After receiving notice, members of the
proposed-collective-action group may affirmatively opt-in to
the proceeding. Id. Accordingly, the first step
entails an important requirement for the certification of a
FLSA collective action; "plaintiff[s] seeking FLSA
collective action certification does not have a procedural
right to represent a class in the absence of any opt-in
plaintiffs." Smith v. T-Mobile USA Inc., 570
F.3d 1119, 1122 (9th Circ. 2009). The court employs a
"lenient standard" during the first stage.
Leuthold, 224 F.R.D. at 467. And while the standard
requires more than unsupported allegations, it
"typically results in conditional class
court conditionally certifies the proposed collective action
in the first step-and after notice has been given and the
opt-in process has been completed-the party opposing
certification generally triggers the second by moving for
class decertification. Anderson, 488 F.3d at 953;
see also Leuthold, 224 F.R.D. at 467. "The
court then must make a factual determination" on whether
the members of the proposed collective action satisfy the
requirements of 29 U.S.C. § 216(b). Leuthold,
224 F.R.D. at 467. The court may decide to decertify the
group if the plaintiffs are not similarly situated, which
then results in the dismissal of the opt-in plaintiffs
without prejudice. Id.
making their motion, the plaintiffs rely on actions taken in
Sargent to argue satisfaction of the FLSA procedural
steps in this matter. But this is an independent action from
Sargent. So even if the plaintiffs in
Sargent sought conditional certification and joined
with opt-in plaintiffs as required by the FLSA, the
plaintiffs herein must satisfy the FLSA requirements in this
case independently. They have not done so. They neither
sought conditional certification nor joined with opt-in
plaintiffs. And while the court recognizes that the parties
intend to use a substantial amount of discovery from the
Sargent matter, the court still requires this
independent matter to undergo the first step of
certification. The court so requires because the
plaintiffs must provide the opportunity of an opt-in process
for similarly situated plaintiffs. Otherwise-without joining
with opt-in plaintiffs-the plaintiffs here have no right to
represent a class in a collective action brought under the
FLSA. The plaintiffs therefore skipped procedural steps
required for FLSA certification, rendering the instant motion
for trial certification premature. As a result, the court
denies the motion without prejudice.
THEREFORE ORDERED that the plaintiffs' motion to certify
(ECF No. ...