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Chavez v. Wis Holdings Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 6, 2007

EDUARDO CHAVEZ AND LYNDA DREISBACH, INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
WIS HOLDINGS CORP., ET AL., DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER REQUIRING CERTIFICATES OF SERVICE FOR NOTICES OF FILING CONSENTS

Plaintiffs in the above-captioned collective action*fn1 case have filed several notices of filing of consents to become party plaintiffs under the Fair Labor Standards Act of 1938 ("FLSA"). Plaintiffs filed the instant action as a collective action under the FLSA, which authorizes an employee to bring an action on behalf of himself or other employees similarly situated if an employer has failed to pay overtime compensation. 29 U.S.C. § 216(b); McElmurry v. U.S. Bank Nat. Ass'n, 495 F.3d 1136, 2007 WL 2263880, *1 (9th Cir. 2007). When a "collective action" is filed under § 216(b) all plaintiffs, including named plaintiffs, are required to file a consent to suit form with the court in which the action is brought. Harkins v. Riverboat Services, , 385 F.3d 1099, 1101 (6th Cir. 2004); Bonilla v. Las Vegas Cigar Co., 61 F. Supp.2d 1129, 1133 (D. Nev. 1999). A "collective action" is not deemed commenced with respect to each individual plaintiff until his or her consent has been filed with the Court. Harkins, 385 F.3d at 1101; Bonilla, 61 F. Supp.2d at 1133 (citing cases).

Although plaintiffs have properly filed several notices each containing multiple consents to become a party plaintiff, plaintiffs have not served defendants with any of the notices containing the consents.*fn2

Accordingly, IT IS ORDERED that plaintiffs shall provide a certificate of service for each Notice of consent to suit form that has been filed in this case. IT IS FURTHER ORDERED that failure to file a certificate of service with respect to each of the previously filed Notices within five (5) days of the filing of this Order shall result in the Notice(s) being stricken from the Court's record.

IT IS SO ORDERED.


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