United States District Court, D. Arizona
Robert P. Cottman, et al., Plaintiffs,
David G. Naskrent, et al., Defendants.
Honorable John J. Tuchi United States District Judge.
issue is Plaintiffs Robert P. Cottman, Michael A. Baker,
Daniel L. Theobald, and Stephanie Harvey's (collectively,
“Plaintiffs”) Motion to Proceed Conditionally as
a Collective and Class Action (Doc. 26, Mot.), to which
Defendants David G. Naskrent, Matthew J. Surma, Corrina
Surma, Cory Lee Hughes, Corey B. Cleghorn, DPHC Enterprise
Inc., and DHSC Enterprise Inc. (collectively,
“Defendants”) filed a Response (Doc. 38, Resp.)
and Plaintiffs filed a Reply (Doc. 43, Reply). Although oral
argument was requested, the Court finds the matter ripe for
resolution such argument. See LRCiv 7.2(f). For the
reasons set forth below, the Court will grant in part and
deny in part Plaintiffs' Motion.
are the owners and managers of Rosati's Pizza
(“Rosati's”) located in Phoenix. Plaintiffs
each worked at Rosati's as a pizza delivery driver at
assorted points in time during periods spanning October 2012
to December 2012 and from January 2014 to January 2017.
Plaintiffs' time at Rosati's, Defendants required
drivers to complete deliveries as assigned by Rosati's.
Defendants did not pay its drivers an hourly salary. Instead,
each driver received a standard fee per delivery in addition
to any tip paid out by the customer. The delivery fee started
at $2 during each driver's probationary period and
increased to $3 after Defendants took the driver off
probation. The fee increased once again in December 2016 to
$3.25 per delivery.
each driver was hired, he or she had to complete training,
which consisted of ride-alongs with senior drivers; however,
Defendants did not compensate new drivers for this time.
Drivers used their own vehicles for deliveries, but were not
reimbursed for mileage, fuel, or other costs incurred when
delivering pizzas. When not delivering pizzas, Defendants
required that Plaintiffs work in the restaurant-without
additional pay-by answering phones, assisting customers,
cleaning the dining room, and assisting with the preparation
completing their deliveries for the day, the delivery drivers
returned to the restaurant to settle their payments for the
day with the store manager or owner. If the cash that the
driver received from customers during their deliveries did
not cover the amount he earned in delivery fees, the manager
pulled cash from the register to pay the difference.
in 2015, if the amount paid for food ordered through a third
party website was less than that charged directly by
Rosati's, Defendants deducted the difference from the tip
of the driver delivering the food. Defendants additionally
deducted the cost of an order from the drivers' day-end
pay for credit card orders if the driver failed to take an
imprint of the purchaser's card and if that card was
subsequently declined after delivery. These policies
frequently resulted in Rosati's drivers earning less than
federal and state minimum wage. Additionally, Plaintiffs
typically worked in excess of forty hours per week without
25, 2017, Plaintiffs filed a Hybrid Collective and Class
Action Complaint in the Maricopa County Superior Court
alleging violations of the Fair Labor Standards Act and
minimum wage provisions of Arizona law. Defendants
subsequently removed to this Court on June 26, 2017, on the
basis of federal question jurisdiction. Plaintiffs now move
to certify a collective action under the FLSA and a class
action pursuant to Federal Rule of Civil Procedure 23(b)(3)
for Plaintiffs' state law claims.
FLSA Collective Action
enacted the FLSA “to protect all covered workers from
substandard wages and oppressive working hours.”
Barrentine v. Arkansas-Best Freight Sys. Inc., 450
U.S. 728, 739 (1981). Among the FLSA's central provisions
is its requirement that employers pay non-exempted workers at
one and a half times the regular rate for any time worked in
excess of forty hours in a single week. 29 U.S.C. § 207;
see Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036,
FLSA provides a mechanism-the “collective
action”-through which workers can sue jointly for
violations of its overtime compensation and other provisions.
See 29 U.S.C. § 216(b). The collective action
thus allows a representative plaintiff to bring suit on
behalf of a group of workers who are “similarly
situated, ” see id., and thereby serves to (1)
reduce the burden on plaintiffs through the pooling of
resources, and (2) make efficient use of judicial resources
by resolving common issues of law and fact together. See
Hoffman-La Rouche, Inc. v. Sperling, 493 U.S. 165, 170
(1989). This mechanism, however, differs from the class
action mechanism under Federal Rule of Civil Procedure 23.
See Genesis Healthcare Corp. v. Symczyk, 569 U.S.
66, 75 (2013). Thus, “[t]he sole consequence of
conditional certification is the sending of court-approved
written notice to employees, who in turn become parties to a
collective action only by filing written consent with the
court.” Id. (internal citations omitted).
decision as to whether a collective action is appropriate
lies within the court's discretion. Leuthold v.
Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal.
2004). Before certifying an FLSA collective action, courts
must evaluate whether the plaintiff has demonstrated that he
or she and the proposed members of the collective action are
“similarly situated.” Id. To do so,
courts in the Ninth Circuit follow a two-tiered approach.
Colson v. Avnet, Inc., 687 F.Supp. 2d. 914, 925
(2010). First, and at issue here, is the “notice stage,
” during which courts determine based on pleadings and
affidavits whether a collective action should be certified ...