Kim v. US Bancorp

[4] UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [6] STEVE KIM, individually and on behalf of [7] all others similarly situated, NO. C20-0032RSL [8] Plaintiffs, ORDER DENYING PLAINTIFFS’ [9] v. MOTION FOR PROTECTIVE ORDER [10] U.S. BANCORP, et al., [11] Defendants. [13] 14 This matter comes before the Court on “Plaintiffs’ Motion for Protective Order” to [15] prevent defendants from conducting discovery before they respond to plaintiffs’ motion for [16] conditional certification under the Fair Labor Standards Act (“FLSA”). Dkt. # 50. Employees [17] who seek to recover unpaid compensation under the FLSA may file suit individually and on [18] behalf of others similarly situated. 29 U.S.C. § 216 (b). In contrast to class actions brought [19] 20 pursuant to Fed. R. Civ. P. 23, FLSA collective actions are “opt-in,” meaning that employees 21 who seek to join the action must file a written consent with the district court. Busk v. Integrity [22] Staffing Solutions, Inc., 713 F.3d 525, 528 (9th Cir. 2013). District courts in the Ninth Circuit [23] apply a two-tiered approach to certification of an FLSA collective action. Troy v. Kehe Food [24] Distribs., Inc., 276 F.R.D. 642, 649 (W.D. Wash. 2011); In re Wells Fargo Home Mortg. [25] 26 Overtime Pay Litig., 527 F. Supp.2d 1053, 1070-71 (N.D. Cal. 2007); Wynn v. Nat’l Broad. Co., [27] ORDER DENYING MOTION FOR 1 Inc., 234 F. Supp.2d 1067, 1082 (C.D. Cal. 2002). [2] First, a district court determines whether potential class members are similarly situated [3] such that a collective action should be certified for the purpose of sending out notice of the [4] action and providing an opportunity to opt-into the litigation. Troy, 276 F.R.D. at 649 . At this [5] notice stage, the district court requires “little more than substantial allegations, supported by [6] 7 declarations or discovery, that the putative class members were together the victims of a single 8 decision, policy or plan.” Id. (internal quotation marks omitted). The standard at this phase is [9] fairly lenient; “plaintiffs need only establish a ‘reasonable basis for their claim of classwide’ [10] injury.” Khadera v. ABM Indus., Inc., 701 F. Supp.2d 1190, 1194 (W.D. Wash. 2010) (quoting [11] Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)). Because there is often [12] little evidence before the court at this stage, the court generally relies on the pleadings and [13] 14 affidavits submitted by the parties in deciding whether potential plaintiffs should receive notice. 15 Bollinger v. Residential Capital, LLC, 761 F. Supp.2d 1114, 1119 (W.D. Wash. 2011). [16] The second stage occurs, if at all, on defendant’s motion to decertify after discovery is [17] completed. Id. At that point, the district court employs a stricter standard to determine whether [18] the plaintiffs are, in fact, similarly situated, considering factors such as the specific duties and [19] 20 conditions of employment of the individual plaintiffs and the various defenses available to the 21 defendant with respect to the individual plaintiffs. Troy, 276 F.R.D. at 649 ; Romero v. Producers 22 Dairy Foods, Inc., 235 F.R.D. 474, 482 (E.D. Cal. 2006). If, in light of the additional evidence [23] acquired during discovery, the Court determines that plaintiffs are not similarly situated, it may [24] decertify the class and dismiss the opt-in plaintiffs without prejudice. Romero, 235 F.R.D. at 25 482. [27] ORDER DENYING MOTION FOR 1 This statement of the law was adopted by the undersigned in Wilson v. Maxim Healthcare [2] Servs., Inc., Cause No. 14-0789RSL, Dkt. # 28 at 2-4 (W.D. Wash. August 18, 2014), and [3] remains good law. In Wilson, however, the defendant sought a two month delay in which to [4] conduct limited discovery and draft its response to plaintiffs’ pending motion for conditional [5] certification. The Court found that delay was inappropriate and would prejudice plaintiffs. [6] 7 Conditional certification for a FLSA class under § 216(b) is different than traditional Rule 23 8 classes in that the statute of limitations for class members is not tolled automatically by the filing [9] of the complaint. Thus, conditional certification and the sending of notice are vitally important to [10] the rights of putative class members who risk being barred by the statute of limitations unless [11] and until they file a consent to join. Because an expeditious determination of the conditional [12] certification issue is essential to protecting rights afforded by the FLSA and because Maxim [13] 14 Healthcare failed to show any grounds to deviate from the settled two-step approach, its request 15 for a two month continuance was denied. [16] In this case, however, defendants have not requested a delay in consideration of the [17] conditional certification motion. Rather, they affirmatively assert that they are simply “to [18] engaging in discovery the Federal Rules of Civil Procedure expressly permit” without impacting [19] 20 the schedule on which the conditional certification motion is briefed. Dkt. # 52 at 2. In reality, 21 defendants’ discovery has already impacted the briefing schedule, with the parties agreeing to 22 continue the conditional certification motion until this discovery dispute is resolved. [23] Nevertheless, the Court agrees that (a) discovery may be joined now that the parties have [24] conducted their Rule 26(f) conference and (b) plaintiffs’ preferences for the order in which [25] discovery proceeds are not binding on defendants and do not constitute “good cause” for a [27] ORDER DENYING MOTION FOR 1 protective order. See Fed. R. Civ. P. 26(c)(1). [2] Plaintiffs’ motion for protective order is therefore DENIED with the caveat that [3] consideration of the conditional certification motion is not, as a legal matter, contingent on [4] completion of the discovery served to date. Defendants will be bound by the limitations imposed [5] by Rule 30, including the requirement that leave of Court be obtained if they seek to depose a [6] 7 person, entity, or party more than once. [9] On July 16, 2020, the parties submitted a stipulation regarding the impacts and effects of [10] the Court’s ruling on plaintiffs’ motion for protective order. Dkt. # 57. The Court issued an order [11] consistent with the parties’ stipulation. Dkt. # 58. Absent the stipulation and order, the Court [12] would have held the defendants to the prior briefing schedule regardless of the discovery sought [13] 14 and the subsequent motion for protective order. The Court prefers and encourages parties to 15 work together on scheduling, however, especially during these difficult COVID-19 times. Even [16] though the stipulation and order were based on the mistaken belief that a denial of plaintiffs’ [17] motion would require completion of the noted discovery before the conditional certification [18] motion could be considered, the Court will honor the parties’ agreement. Now that the motion [19] 20 for protective order has been denied, Mr. Kim and the opt-in plaintiffs whose depositions have 21 already been noted will sit for their depositions on a mutually agreeable schedule, and 22 defendants’ opposition to the pending motion for conditional certification shall be due 18 days [23] after the last deposition is completed. The parties shall work cooperatively to schedule the [24] depositions and renote the conditional certification motion on the Court’s calendar. [27] ORDER DENYING MOTION FOR 1 For all of the foregoing reasons, plaintiffs’ motion for a protective order (Dkt. # 50) is [2] DENIED. [3] 4 DATED this 3rd day of August, 2020. [6] A [7] Robert S. Lasnik 8 United States District Judge [27] ORDER DENYING MOTION FOR