The opinion of the court was delivered by: Hon. Gonzalo P. CURIELUnited States District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AS TO CALIFORNIA BASED EMPLOYEES ONLY [Dkt. No. 51.]
Before the Court is Plaintiffs Kevin Waine-Golston and Andre Corbin's motion for class certification as to California based employees only. Defendant Time Warner Entertainment-Advance/New House Partnership ("Time Warner") filed an opposition. Plaintiffs filed a reply. The motion is submitted on the papers without oral argument, pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and applicable law, the Court DENIES Plaintiffs' motion for class certification as to California based employees only.
This action was originally filed in the Superior Court of California for the County of San Diego on April 1, 2009. On May 13, 2011, the case was removed to this Court pursuant to the Class Action Fairness Act of 2005. (Dkt. No. 1.) On June 10, 2011, Plaintiffs filed an amended complaint. (Dkt. No. 6.) The first amended complaint alleges a collective action pursuant to 29 U.S.C. § 216(b) for violations of the Fair Labor Standards Act ("FLSA"); a class action for violation of the California Labor Code; a class action for violation of California Business & Professions Code section 17200 et seq.; and penalties pursuant to California's Private Attorneys General Act of 2004 ("PAGA"). (Dkt. No. 6, FAC ¶¶ 11-14.)
On May 21, 2012, Plaintiffs filed a motion to certify class of California employees only. (Dkt. No. 51.) On June 18, 2012, Defendant filed an opposition. (Dkt. No. 56.) On June 25, 2012, Plaintiffs filed a reply. (Dkt. No. 59.) On May 18, 2012, three days prior to filing their motion for class certification, Plaintiffs filed a motion for leave to file a second amended complaint. (Dkt. No. 50.) On October, 9, 2012, the Court denied Plaintiff's motion for leave to amend the first amended complaint. (Dkt. No. 83.) Specifically, the Court denied Plaintiff's motion for leave to add new legal theories and factual allegations regarding Defendant's time rounding policy; Defendant's failure to include a "birthday bonus" and discounted television cable service in the regular rate of pay; and Defendant's failure to provide a second meal period after ten hours of work. (Id.) On October 12, 2012, the case was transferred to the undersigned judge. (Dkt. No. 84.)
Plaintiff Kevin Waine-Golston was employed at Time Warner from October 29, 2010 until April 2012 as a technical support agent ("TSA"). (Dkt. No. 6, FAC ¶ 33; Dkt. No. 51-5, WaineGolston Decl. ¶ 3.) He states that he was subject to Time Warner's standard and uniform policies and practices as laid out in its employee handbook. (Dkt. No. 51-5, Waine-Golston Decl. ¶ 6.) He clocked in and was paid through the Kronos timekeeping system. (Id.)
Plaintiff Andre Corbin was employed at Time Warner from July 20, 2007 until June 15, 2012 as a technical support agent. (Dkt. No. 6, FAC ¶ 38; Dkt. No. 51-4, Corbin Decl. ¶ 3.) He states that he was subject to Time Warner's standard and uniform policies and practices as laid out in its employee handbook. (Dkt. No. 51-4, Corbin Decl. ¶ 6.) He clocked in and was paid through the Kronos timekeeping system. (Id.)
Plaintiffs allege that Defendant failed to provide overtime compensation in violation of Labor Code section 510(a); failed to provide all wages due and owing in violation of Labor Code section 204(a); failed to provide accurate itemized wage statements in violation of Labor Code section 226(a); failed to maintain accurate time records in violation of California Code of Regulations, title 8, section 11110 et seq; and failed to comply with Labor Code section 203(a) with respect to Plaintiffs who were discharged or who quit. The factual basis for these legal theories is that Plaintiffs and all other nonexempt employees were required to arrive approximately fifteen minutes prior to the beginning of their shifts so that they can log into their computers and have all necessary software programs running prior to the start of their shifts. (Dkt. No. 6, FAC ¶ 75.) Plaintiffs contend that Defendant does not pay its employees from the time they log into their computers until the time they log out of their computers. (Id. ¶ 76.) Specifically, Plaintiffs assert that Defendant does not pay its employees the time spent logging into the computers at the beginning of the day until the time they activate Avaya/Kronos, Defendant's time-keeping software, and the time spent deactivating Avaya/Kronos until the time they log out of their computers. (Id. ¶ 76.)
Plaintiffs seek to certify: "[a]ll current and former nonexempt employees of TIME WARNER, Inc.*fn1 who were designated by TIME WARNER, Inc. as nonexempt, and worked at any time in the State of California from April 7, 2007 through the date of trial."
Plaintiffs, also alternatively, seek certification of five separate sub-classes: 1) the "compensation [rounding] policy" issue; 2) the "computer log-in and out" issue; 3) the "overtime rate of pay" issue as to the "birthday bonus" and free/discounted television cable service; 4) the lack of a "second meal period policy" issue; and 5) the "failure to pay wages to ex-employees" issue.
Defendant objects to the certification of claims regarding rounding, regular rate of pay and second meal period because they are not alleged in the operative first amended complaint. Plaintiffs contend that their complaint alleges a failure to pay all wages due which would encompass these claims. At the time when Plaintiffs' motion for class certification was fully briefed on June 25, 2012, the parties did not have the benefit of Judge Moskowitz' order denying Plaintiff's motion for leave to amend the first amended complaint filed on October 9, 2012. In that order, Judge Moskowitz denied Plaintiff's motion to add allegations concerning the time rounding policy, failure to include a "birthday bonus" and discounted television cable service in the regular rate of pay and Defendant's failure to provide a second meal period after ten hours of work. (Dkt. No. 83.) In coming to its conclusion, the Court noted that the parties entered into a stipulation where "Plaintiffs contend that their First Amended Complaint does not challenge Defendant's practice of rounding time." (Id. at 4 citing Dkt. No. 43.)
Plaintiffs may not certify a class based on claims not asserted in the complaint. See Anderson v. U.S. Dep't of Hous. & Urban Dev., 554 F.3d 525, 528-29 (5th Cir. 2008) (trial court abused discretion certifying class based on claims not alleged in complaint); Trinidad v. Victaulic Co. of Am., No. 85-1962, 1986 WL 276 *3 (E.D. Penn. Aug. 15, 1986) (denying certification of subclass based on claims not alleged in complaint).
Although the papers discuss all the issues Plaintiffs seek to certify, the Court only addresses certification as it concerns the computer log-in and out policy and the failure to pay wages to ex-employees as both are alleged in the first amended complaint.
A. Legal Standard for Class Certification
Federal Rule of Civil Procedure 23 ("Rule 23") governs the certification of a class. See Fed. R. Civ. P. 23. A plaintiff seeking class certification must affirmatively show the class meets the requirements of Rule 23. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). To obtain certification, a plaintiff bears the burden of proving that the class meets all four requirements of Rule 23(a)-numerosity, commonality, typicality, and adequacy. Ellis v. Costco Wholesale Corp., 657 F.3d 970 979-80 (9th Cir. 2011). If these prerequisites are met, the court must then decide whether the class action is maintainable ...