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Wilkie v. Gentiva Health Services


September 16, 2010


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on defendant Gentiva Health Services' ("defendant" or "Gentiva") motion to transfer plaintiff Catherine Wilkie's ("plaintiff" or "Wilkie") Federal Labor and Standards Act ("FLSA") claim and various state law claims*fn1 to the same federal district court in which the "first-filed action" is pending.*fn2 Plaintiff asserts her claims for relief in this action as a putative nation- and California-wide class action against Gentiva, plaintiff's former employer.

By its motion, defendant moves to transfer plaintiff's complaint under the "first-to-file rule," on the ground plaintiff's claims are the subject of the Rindfleisch action. Plaintiff opposes the motion, arguing the parties and claims are not substantially similar in the two actions and other equitable factors militate against transfer under the first-to-file rule.

For the reasons set forth below,*fn3 the court DENIES Gentiva's motion; plaintiff's complaint is not properly transferred under the first-to-file rule.


Gentiva is a corporation which provides home health services in various parts of the United States. (Def.'s Answer, ¶ 29).

1. Rindfleisch Action

On May 10, 2010, plaintiffs Lisa Rindfleisch, Tiffany Melendez, Michelle Gentile, Laurie Baker and Christina Nelmes filed a complaint against Gentiva in the United States District Court, Eastern District of New York, on behalf of all "visiting health care providers" who were, are, or will be employed by Gentiva nationwide, during the period of three years prior to the date of commencement of the action through the date of judgment in the action. (Gentiva's Request for Judicial Notice [Docket #13], filed July 23, 2010 ["RJN"], Ex. A, ¶ 6). The Rindfleisch plaintiffs' definition of "visiting health care providers" includes registered nurses, physical therapists, and occupational therapists. (Id. at Ex. A, ¶ 3). They assert a nationwide class action under FLSA based on Gentiva's alleged policy of paying its visiting health care providers pursuant to an unlawful hybrid compensation plan, which includes "per visit" payments for some work and hourly pay for other work. (Id.)

The Rindfleisch plaintiffs also seek certification of two state law, sub-classes under Federal Rule of Civil Procedure 23, one on behalf of North Carolina visiting health care providers and one on behalf of New York visiting health care providers. (Id. at Ex. A, ¶¶ 9-13). Both sub-classes seek respective state law overtime remedies for misclassification of employees. (Id.)

2. Wilkie Action

On June 11, 2010, plaintiff filed the instant action against Gentiva. (Id. at Ex. B.) Like in Rindfleisch, plaintiff also alleges a FLSA claim, on behalf of a nation-wide class of similarly situated persons, asserting that Gentiva maintains a policy of paying employees pursuant to an unlawful "mixed per visit and hourly compensation scheme." (Id. at Ex. B, ¶ 1). Plaintiff contends that by compensating employees in such a manner defendant fails to pay plaintiff and the class for all hours worked, as well as overtime pay. Plaintiff's class definition for her FLSA claim is as follows:

[A]ll persons who are or were formerly employed by Defendant in the United States at any time since June 11, 2007 to the entry of judgment in this case, as clinical associates, including but not limited to registered nurse case managers, and similarly situated employees holding comparable positions with different titles. (Id. at Ex. B, ¶¶ 1,18).

Plaintiff also alleges state law claims for failure to (1) pay overtime, (2) pay for all hours worked, (3) provide timely and accurate itemized statements, and (4) provide meal and rest breaks in violation of the California Labor Code ("Labor Code") § 201, et seq., and (5) for violation of California Business and Professions Code § 17200, et seq. Plaintiff seeks to represent the following California class:

[A]ll persons who were, are, or will be employed by Defendant in California, as clinical associates, including but not limited to registered nurse case managers and similarly situated employees holding comparable positions with different titles (the 'California Class'), at any time within four years prior to the date of the filing of this complaint through the date of the final disposition of the action. (Id. at Ex. B, ¶¶ 4, 53-79).

Defendant moves to transfer this case to the district court in which the Rindfleisch action is pending.*fn4


The first-to-file rule is a recognized legal doctrine regarding duplicative lawsuits in which "[t]he principles of comity allow a district court to decline jurisdiction over an action where a complaint involving the same parties and issues has already been filed in another district." Barapind v. Reno, 225 F.3d 1100, 1109 (9th Cir. 2000). Its purpose is to "to avoid placing an unnecessary burden on the federal judiciary, and to avoid the embarrassment of conflicting judgments." Church of Scientology of Cal. v. U.S. Dep't of the Army, 611 F.2d 738, 750 (9th Cir. 1979).

However, the first-to-file rule is not a "rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of sound judicial administration." Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1992). The United States Supreme Court has explicitly noted that "[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solutions" to the problems of duplicative litigation and the relevant factors are equitable in nature. Kerotest Mfg. Co. v. CO-Two Fire Equip. Co., 342 U.S. 180, 183 (1952).

In applying the first-to-file rule, a court looks to three threshold factors: "(1) the chronology of the two actions; (2) the similarity of the parties, and (3) the similarity of the issues." Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625-626 (9th Cir. 1991). If this action meets the requirements of the first-to-file rule, the court has the discretion to transfer, stay, or dismiss the action. Id. at 622. The Rindfleisch and Wilkie plaintiffs' various claims present distinct factual and legal issues, which are addressed below, meriting the denial of Gentiva's motion.

1. Chronology of the Actions

The parties do not dispute that the New York action was filed first; that action was filed on May 10, 2010, and this action was filed on June 11, 2010.

2. Similarity of the Parties

Defendant contends that the parties are substantially similar because both the Rindfleisch and Wilkie lawsuits set out collective actions under FLSA*fn5 on behalf of a nation-wide class consisting of similar employees. Further, defendant maintains that the ancillary state law classes do not affect the similarity requirement because despite the California sub-class which exists only in Wilkie, there is still "substantial overlap" between all the parties in both actions. Plaintiff asserts, to the contrary, that at this point in the litigation it is uncertain whether the two nation-wide classes are substantially similar. Additionally, plaintiff contends Wilkie's California plaintiffs and Rindfleisch's New York and North Carolina plaintiffs are distinct from each other, making the parties as a whole dissimilar.

The first-to-file rule does not require strict identity of the parties, but rather substantial similarity. v. Martindale-Hubbell, 420 F. Supp. 2d 1093, 1097 (N.D. Cal. 2006). Substantial similarity of the parties is determined by comparing the proposed classes as they currently stand. Gardner v. GC Services, LP, No. 10-CV-997-IEG (CAB), 2010 WL 2721271, *5 (S.D. Cal. July 6, 2010) ("the focus is on the composition of the two classes at this point."); accord Dubee v. P.F. Chang's China Bistro, Inc., No. C 10-01937 WHA, 2010 WL 3323808, *2 (N.D. Cal. August 23, 2010).

While Gentiva is a defendant in both actions, plaintiff correctly points out that at this stage in the litigation, it is not apparent whether the nation-wide classes are substantially similar. On the surface, and as conceded by plaintiff, the two classes appear similar. The Rindfleisch nation-wide class consists of "Registered Nurses ("RNs"), Physical Therapists, and Occupational Therapists (collectively, 'visiting health care providers')." (Def.'s RJN at Ex. A, ¶ 3.) The instant action's class includes all persons who are, or were, formerly employed by defendant as "clinical associates," including but not limited to registered nurse case managers and similarly situated employees holding comparable positions with different titles. (Id. at Ex. B, ¶ 2.)

Plaintiff's definition of "clinical associates" is similar to the Rindfleisch plaintiffs' "healthcare providers;" but significantly, plaintiff's definition, here, may be broader. However, with no discovery conducted in either case, it is yet to be seen whether the two actions substantially overlap. As plaintiff argues, some employees included in the instant action may not ultimately be included in the Rindfleisch action. For example, it is unclear whether licensed vocational nurses, physicians assistants, and monitor technicians which likely fit under plaintiff's class definition, also fit within the Rindfleisch class. As such, the court cannot find at this juncture that substantial similarity exists between the nationwide classes in the two actions.

Additionally, plaintiff's California class is separate and distinct from any and all Rindfleisch sub-classes. See, e.g., Gardner v. GC Services, LP, No. 10-CV-997-IEG (CAB), 2010 WL 2721271, *5 (S.D. Cal. July 6, 2010) (finding "no overlap at all, much less 'substantial overlap'" where a later-filed action represented a California putative class, while the earlier-filed action excluded all California employees from the putative class). Indeed, no subclass of California litigants, alleging California state law claims, currently exists in the Rindfleisch action so there can be no similarity of the parties as to the state classes. Thus, considering all of the classes at issue, the court cannot find a similarity of the parties in the two actions.

3. Similarity of the Issues

Defendant contends that the FLSA claims in both actions are substantially similar. Additionally, defendant asserts while the particulars of California law differ from the provisions of FLSA, still both claims concern the same core alleged violation, and thus, the claims are substantially similar. Finally, defendant argues the state law claims in both actions need not be compared because, if transferred, any federal district court is capable of interpreting and applying California law. On the other hand, plaintiff argues that while the FLSA claims in both actions appear similar, Wilkie's California state law claims are distinct from the Rindfleisch action's FLSA claim. Further, plaintiff contends that there is no overlap between the two action's state law claims.

With respect to the issues, courts also routinely recognize that they need not be identical in the two actions. Substantial similarity is sufficient. Adoma v. University of Phoenix, _F.Supp.2d_, 2010 WL 1797263, *5 (E.D. Cal. May 3, 2010). Here, it is likely that the FLSA issues in this action will be similar to those of the Rindfleisch action. Both plaintiffs allege that Gentiva maintained a policy of paying its employees pursuant to an unlawful hybrid compensation plan. (Compare Def.'s RJN at Ex. A, ¶ 3 with Ex. B, ¶ 1.)

On the other hand, plaintiff's California law claims are dissimilar from both the Rindfleisch action's FSLA claim and the North Carolina and New York state law claims. First, California law is significantly different than FLSA. See e.g., Gardner v. GC Services, LP, No. 10-CV-997-IEG (CAB), 2010 WL 2721271, *6 (S.D. Cal. July 6, 2010) (comparing class certification and the calculation of overtime remedies under FLSA and the Cal. Labor Code; ultimately finding "significant differences"); Nordquist v. McGraw-Hill Broadcasting Co., 32 Cal. App. 4th 555, 562 (1995) ("California's professional employee exemption is narrower than that in the FLSA and the administrative employee exemption is somewhat different").

Moreover, while the Rindfleisch FLSA claim only seeks relief for defendant's misclassification and failure to pay overtime wages, (Def.'s RJN, Ex. A, ¶¶ 3, 13), the instant action's California law claims also seek relief for defendant's failure to (1) pay compensation due within the time specified by California law (Count III), (2) provide timely and accurate wage statements (Count IV), (3) provide required rest and meal breaks (Count V), and (4) for violation of California Business and Professions Code § 17200 et seq. (Count VI), (id. at Ex. B, ¶¶ 53-79.)

The Wilkie state law claims also do not overlap the Rindfleisch New York and North Carolina state law claims. Defendant contends that the instant action's state law claims do not preclude application of the first-to-file rule because whichever federal court ultimately hears the case may exercise supplemental jurisdiction to determine any state law claims. However, this is irrelevant to the court's inquiry. The court must consider the pleadings and the cases as they currently exist. See, Gardner v. GC Services, LP, No. 10-CV-997-IEG (CAB), 2010 WL 2721271, *5 (S.D. Cal. July 6, 2010). Whether amendments to the pleadings could later add a California class action to the Rindfleisch action is not pertinent. What is relevant is that the Rindfleisch action alleges no California state law claims, so no overlap can exist; this makes the issues dissimilar.

On balance, there are more dissimilarities in the issues than similarities, and thus, this requirement for application of the rule is also not met.

4. Equities

Finally, even if the requirements of the first-to-file rule were met, the court has broad discretion to not apply the rule in the interests of equity. Adoma v. University of Phoenix, _F.Supp.2d_, 2010 WL 1797263 at * 6 (E.D. Cal. May 3, 2010).

Plaintiff contends that the prejudice she and the class may suffer due to the unsettled procedural posture of the Rindfleisch action is a persuasive equitable reason not to apply the first-to-file rule. The court agrees.

The statute of limitations for a FLSA claim runs until the party opts in, i.e., it is unlike a class action where the statute of limitations is tolled while plaintiff seeks class certification. See, 29 U.S.C. § 256. A plaintiff has a two year window to commence an action unless there is a willful violation which affords her three years. Id. at § 255(a). Defendant has moved for transfer of the Rindfleisch action to the Northern District of Georgia, which will be heard November 5, 2010. It is unclear when discovery will commence, and thereafter, certification of the proposed collective action.

Rindfleisch's unsettled posture raises several issues. First, delay in certification of the class may cause some nationwide collective members to lose their claims. Second, at this stage in the litigation, it is not clear that the Rindfleisch nation-wide class will be certified. As such, and as plaintiff contends, class members nation-wide may be harmed by not allowing this case to at least move forward to the collective action certification. Finally, as set forth above, it seems possible that transferring this action before it is determined whether each nation-wide class includes the same employees might seriously infringe the rights of potential collective members of plaintiff's proposed nation-wide class.

Accordingly, the court is persuaded that the equities in this case further militate against applying the first-to-file rule.


For the foregoing reasons, defendant's motion to transfer is DENIED.


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