United States District Court, D. Arizona
For Christine Villarreal, individually and on behalf of all others similarly situated, Plaintiff: Daniel Solomon Brome, Matthew C Helland, LEAD ATTORNEYS, Nichols Kaster LLP, San Francisco, CA ; David Einer Schlesinger, LEAD ATTORNEY, Nichols Kaster PLLP, Minneapolis, MN; Tim C Selander, LEAD ATTORNEY, Nichols Kaster & Anderson PLLP, Minneapolis, MN.
For Caremark LLC, Defendant: Dana Lauren Hooper, LEAD ATTORNEY, Greenberg Traurig LLP, Phoenix, AZ; James N Boudreau, LEAD ATTORNEY, Greenberg Traurig LLP - Philadelphia, PA, Philadelphia, PA.
Honorable Diane J. Humetewa, United States District Judge.
Pending before the Court is a Motion to (1) Amend the Court's December 17, 2014 Order to Certify it for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and (2) Stay the Action Pending Interlocutory Appeal (Doc. 52) bye defendant Caremark, L.L.C. (" Caremark" ). After the filing of Plaintiff's Response (Doc. 55) and Caremark's Reply (Doc. 58), this motion was fully briefed on January 20, 2015.
On December 17, 2014, this Court granted the named plaintiff's Motion for Conditional Certification and Distribution of Judicial Notice (Doc. 36) in this Fair Labor Standards Act (" FLSA" ) case. In so doing, the court " [d]eclined to consider Caremark's declarations asserting that there are differences been Plaintiff Villarreal and the putative class members[.]" Villarreal v. Caremark Llc, 66 F.Supp.3d 1184, 2014 WL 7184014, at *4 (D.Ariz. Dec. 17, 2014). The Court did so for primarily two reasons. First, it found that Caremark's proffered declarations were " an attempt to show 'disparate factual and employment settings of the individual plaintiffs.'" Id. (quoting Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 628 (E.D.Cal. 2009) (internal quotation
marks and citations omitted)). Therefore, because " Caremark's declarations pertain[ed] to the second, and not the first tier of conditional class certification, this Court decline[d] to consider them at" that first tier. Id. (citing Benedict [v. Hewlett-Packard Co.], 2014 WL 587135, at *12 n. 33 [(N.D.Cal. Feb. 13, 2014)] (" The Court further notes that it need not even consider HP's evidence at the notice-stage, as various courts in this Circuit have held." ) (citing, inter alia, Luque v. AT& T Corp., 2010 WL 4807088, at *5 (N.D.Cal. Nov. 19, 2010) (disregarding thirty declarations submitted by defendants in opposition to motion for conditional certification[,] stressing that " [c]ourts need not even consider evidence provided by defendants at this [notice] stage" ); Kress, 263 F.R.D. at 628 (" In determining whether plaintiffs have met this standard, courts need not consider evidence provided by defendants." )).
Second, the Court explained, " [d]eclining to consider Caremark's declarations asserting that there are differences between Plaintiff Villarreal and the putative class members is consistent with the view 'that the question at this stage is not whose evidence regarding commonality is more believable, but simply whether plaintiffs have made an adequate threshold showing' that there are substantially similar putative class members." Id. (internal quotation marks and citations omitted). The Court also found " noteworthy . . . '[t]he fact that a defendant submits competing declarations will not as a general rule preclude conditional certification.'" Id. (quoting Harris v. Vector Marketing Corp., 716 F.Supp.2d 835, 838 (N.D.Cal. 2010) (citing Hipp [v. Liberty Nat'l Life Ins. Co.], 252 F.3d [1208,] at 1219 [(11th Cir. 2001)] (emphasis added); see also Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1128 (N.D.Cal. 2009) (internal quotation marks and citation omitted) (where plaintiffs met their burden at the notice sta[g]e, the Court did not consider Defendant's fifty-four declarations, even if " [i]t may be true that the evidence will later negate plaintiffs' claims[ ]" ); Williams v. U.S. Bank N.A., 290 F.R.D. 600, 613 (E.D.Cal.2 013) (" [T]he cases indicate [it] is not appropriate . . . to consider contradictory evidence at th[e] [notice] stage[.]" ))
At the same time, however, the Court stressed that its " holding should not be construed in any way as limiting Caremark's proof at the second stage of class certification." Villarreal, 2014 WL 7184014, at *5. Continuing, the Court wrote that it " will closely consider 'the disparate factual and employment settings of the individual plaintiffs' if and when [Caremark] makes a motion to decertify, as that fact-specific analysis is appropriate for the second-stage.'" Id. (quoting Benedict, 2014 WL 587135, at *2) (quoting in turn Flores v. Velocity Express, Inc., 2013 WL 2468362, at *7 (N.D.Cal. June 3, 2013)) (citing Camp v. Progressive Corp., 2002 WL 31496661, at *4 (E.D.La. Nov. 8, 2002)) (holding that " the existence of some variations between potential claimants is not determinative of lack of similarity at the notice-stage." ) (emphasis in original) (footnotes omitted)).
Now Caremark is seeking to have the Court certify the Conditional Class Certification Order to allow for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). More specifically, Caremark is seeking certification of the following issue, which it deems to be an " important and controlling issue of law:
When deciding whether to authorize notice of a putative collective action under the FLSA, may a district court ignore relevant evidence presented by a defendant who opposes the sending of notice, and choose instead to rely exclusively
on evidence offered by the plaintiff?
Mot. (Doc. 52) at ...