The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ON DEFENDANTS' EX PARTE APPLICATION FOR PERMISSION TO FILE A REPLY TO PLAINTIFFS' SUPPLEMENTAL BRIEF
Still pending in this case is Plaintiffs' motion for class certification and Defendants' motion against it. Defendants filed first*fn1 , on November 19, 2009, and Plaintiffs followed in short order, on November 23, 2009. Approximately one month after the Court took the motions under submission, Defendants brought to the Court's attention an order denying conditional collective action certification under the Fair Labor Standards Act in Bamgbose v. Delta-T Group, Inc., now pending in the Eastern District of Pennsylvania. Bamgbose v. Delta-T Group, 684 F.Supp.2d 660 (E.D. Pa. 2010). Bamgbose is very similar to this case: Plaintiffs allege that they're "employees" of Delta-T, but that Delta-T has classified them as "independent contractors" to avoid overtime compensation requirements. The difference between the cases is that Bamgbose was brought under the Fair Labor Standards Act, whereas this case was brought under the California Labor Code.
In the order filed by Defendants, Judge McLaughlin denied conditional certification on the ground that too many variables impacted the question whether Plaintiffs were employees or independent contractors for the court to resolve that question categorically, with respect to the putative class as a whole:
In view of these factors, the plaintiff has not made a modest factual showing that the putative class is similarly situated. The record demonstrates that the healthcare workers have a wide array of skills, responsibilities, and experiences with Delta-T and its clients. Evaluation of whether the healthcare workers are employees or independent contractors, based on the current record, would not be possible on a collective basis because it would require the Court to examine the healthcare workers' distinct relationships with Delta-T and its various clients.
Id. at 668. Before the Court can rule on the parties' cross-motions in this case, it must first decide what to make of Bamgbose. Naturally, Defendants think Judge McLaughlin's order in Bamgbose is important, and ought to weigh heavily on the Court's analysis here, while Plaintiffs attempt to distinguish Bamgbose and minimize its significance.
The Court's initial inclination was to address Bamgbose, up front, in its final order on class certification. After reading Judge McLaughlin's order, however, along with the parties' supplemental briefs, it appears that the relevance of Bamgbose is worth treating all by itself. This is especially so considering that the parties dispute not only the relevance of Bamgbose but also whether Plaintiffs were justified in filing a response brief after Defendants brought the case to the Court's attention.
I. Plaintiffs' Compliance with Civil Local Rule 7.1(e)
Defendants make much of the fact that after they filed a Notice of Supplemental Authority flagging Bamgbose for the Court, Plaintiffs, without permission, filed a supplemental brief with legal argument and exhibits. They ask the Court for permission to file a reply, or, in the alternative, to strike the supplemental brief. The Court appreciates Defendants' respect for the rules, but it doesn't need a motion and two supporting declarations that essentially scold the Plaintiffs for not observing them. That's just more to read, and it's all a distraction from the hard legal questions that confront both the parties and the Court in this case. Defendants' reply brief is received.
II. Class Certification under the FLSA and FRCP
Bamgbose was brought under the Fair Labor Standards Act, which does not adhere to the Rule 23 protocol for class certification. Plaintiffs attempt to distinguish it on this basis. The Act provides:
An action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b). Most courts have adopted a two-step certification procedure for collective actions brought under the FLSA. Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-CV-715, 2008 WL 793838 at *2 (N.D. Cal., Mar. 24, 2008). The first step is conditional certification; a district court looks for a minimal showing that members of the proposed class are "similarly situated." Id. The purpose of conditional certification is to determine whether the proposed class should be given notice of the action. Adams v. Inter-Con Sec. Systems, Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007). Discovery isn't complete at this time; a court makes a decision whether to conditionally certify a class based on the pleadings and affidavits submitted by the parties. Id. For this reason, the standard for conditional certification is "fairly lenient," and it is usually granted. Id. A court "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). See Beauperthuy, 2008 WL 793838 at *2 ("Given that a motion for conditional certification usually comes before much, if any, discovery, and is made in anticipation of a later more searching review, a movant bears a very light burden in substantiating its allegations at this stage.").
The second step, assuming a putative class has been conditionally certified, involves a motion to decertify by the party opposing certification. At this point, discovery is complete and the case is ready to be tried. Adams, 242 F.R.D. at 536.
If the Court grants conditional certification, the action proceeds into the second and final certification stage. At this stage, the court will again make its certification decision based on the 'similarly situated' standard, but with the addition of much more information about the parties and their claims. Thus, courts in this second stage require a higher level of proof than for initial conditional certification. Because of the heavier burden of proof for deciding whether the group is 'similarly situated,' courts have recognized that few actions will ...