United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge.
the Court is Plaintiff Mario Cardoso's (the
“Plaintiff”) Motion for Conditional Certification
(the “Motion”). (Doc. 14) The Motion was fully
briefed on March 27, 2019. (Docs. 18, 23) Because it would
not assist in resolution of the instant issues, the Court
finds the pending motion is suitable for decision without
oral argument. See LRCiv. 7.2(f); Fed.R.Civ.P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir.
1998). The Court's ruling is as follows.
Plaintiff worked as a “yard laborer” employee of
Pick A Part, LLC. (Doc. 1 at 3) Pick A Part, LLC is owned by
Rush Auto Recyclers, Inc. (together, the
“Defendants”). (Doc. 18 at 2) The Plaintiff
alleges that he and other current and former employees were
not paid one-and-one-half times their regular rates of pay
for overtime hours worked. (Doc. 1 at 2) The Plaintiff filed
a complaint (the “Complaint”) against the
Defendants, and other parties, alleging violations of the
Fair Labor Standards Act (“FLSA”). (Doc. 1 at 2)
The Plaintiff filed the Motion seeking conditional class
certification. (Doc. 14)
FLSA prohibits covered employers from employing any employees
“for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one and
one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1); Scales v.
Info. Strategy Design Inc., 356 F.Supp.3d 881, 884-85
(D. Ariz. 2018). “Any employer who violates the
provisions of . . . section 207 . . . shall be liable to the
employee or employees affected in the amount of . . . their
unpaid overtime compensation . . .”. 29 U.S.C. §
216(b). A collective action to recover these damages may be
brought “against any employer . . . by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated.” Id.
Employees not named in the complaint who wish to join the
action must give their consent in writing to the court in
which the action is brought. Scales, 356 F.Supp.3d
216(b) does not define ‘similarly situated', and
the Ninth Circuit has not construed the term.”
Colson v. Avnet, Inc., 687 F.Supp.2d 914, 925 (D.
Ariz. 2010). “[D]istrict courts within the Ninth
Circuit generally follow the two-tiered or two-step approach
for making a collective action determination.”
Id. Under this approach,
“the court determines, on an ad hoc case-by-case basis,
whether plaintiffs are similarly situated. This requires the
court to first make an initial ‘notice stage'
determination of whether plaintiffs are similarly situated.
At this first stage, the court requires nothing more than
substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan.
If a plaintiff can survive this hurdle, the district court
will conditionally certify the proposed class and the lawsuit
will proceed to a period of notification, which will permit
the potential class members to opt-into the lawsuit. Once the
notification period ends, the Court moves on to the second
step of the certification process. At the second step, in
response to a motion to decertify the class filed by the
defendant, the court makes yet another determination whether
the proposed class members are similarly situated; this time,
however, the court utilizes a much stricter standard to
scrutinize the nature of the claims.”
Colson, 687 F.Supp.2d at 925.
certification is not automatic, and a plaintiff must show
that some “identifiable factual or legal nexus binds
together the various claims of the class members in a way
that hearing the claims together promotes judicial efficiency
and comports with the broad remedial policies underlying the
FLSA.” Colson, 687 F.Supp.2d at 925;
Wertheim v. Arizona, 1993 WL 603552, at 1 (D. Ariz.
Sept. 30, 1993). The allegations need not be “strong
[n]or conclusive;” the plaintiff need only show
“that there is some factual nexus which binds the named
plaintiffs and the potential class members together as
victims of a particular alleged policy or practice.”
Id. at 926. “Plaintiffs need only show that
their positions are similar, not identical, to the positions
held by the putative class members.” Juvera v.
Salcido, 294 F. R. D. 516, 520 (D. Ariz. 2013). In other
words, “[t]he court must only be satisfied that a
reasonable basis exists for the plaintiffs' claims or
class wide injury.” Bollinger v. Residential
Capital, LLC, 761 F.Supp.2d 1114, 1119 (W. D. Wash.
a collective action should be conditionally certified
ultimately is within the discretion of the court. Colson
v. Avnet, Inc., 687 F.Supp.2d 914, 925 (D. Ariz. 2010).
The court should not review the underlying merits of the
action, nor should it “resolve factual disputes . . .
at the preliminary certification stage of an FLSA collective
action.” Id. at 926. “The court's
determination at this first step is based primarily on the
pleadings and any affidavits submitted by the parties.”
Kesley v. Entm't U.S.A. Inc., 67 F.Supp.3d 1061,
1065 (D. Ariz. 2014).
Plaintiff seeks conditional certification of a class of
“all persons who have worked or who are working as yard
laborers for Defendants at any time during the three years
preceding” this lawsuit. (Doc. 14 at 1) The Defendants
do not generally object to the conditional class
certification requested in the Motion. (Doc. 18 at 1)
However, the Defendants ...