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Ramirez v. Ghilotti Bros., Inc.

United States District Court, N.D. California

April 25, 2013

JOSE RAMIREZ ET AL., Plaintiffs,

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For Jose Ramirez, Marck Mena Ortega, Luis Gomez, Plaintiffs: Elisa J Stewart, LEAD ATTORNEY, Elisa J Stewart, San Francisco, CA; Gay Crosthwait Grunfeld, Jenny Snay Yelin, LEAD ATTORNEYS, Blake Thompson, Kathryn Grzenczyk Mantoan, Rosen Bien Galvan and Grunfeld LLP, San Francisco, CA; Laura Barbara Boysen-Aragon, LEAD ATTORNEY, Attorney at Law, Rosen Bien Galvan and Grunfeld LLP, San Francisco, CA; Wendy Ellen Musell, LEAD ATTORNEY, Stewart & Musell, San Francisco, CA.

For Ghilotti Bros., Inc., Defendant: An Nguyen Ruda, Louiae Ann Fernandez, Michael J. Hassan, LEAD ATTORNEYS, Jeffer Mangels Butler & Mitchell LLP, Los Angeles, CA; An H. Nguyen, Jeffer, Mangels, Butler & Marmaro, Los Angeles, CA; Patricia Marie DeSantis, Jeffer Mangels Butler Mitchell LLP, Los Angeles, CA.


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This is a Fair Labor Standards Act (FLSA) case. Plaintiffs allege that Defendant Ghilotti Bros., Inc. (" Ghilotti" ), a construction company, failed to provide proper meal and rest periods, failed to provide accurate wage statements, and did not pay overtime and minimum wages owed on account of uncompensated work it required its employees to perform. Plaintiffs focus on Ghilotti's practice of not paying its " driving laborers" for time spent at the beginning and the end of their shifts loading and unloading Ghilotti trucks and driving between Ghilotti loading areas and job sites. According to Plaintiffs, those uncompensated tasks usually took between and 2 and 3 hours each day.

Three motions are pending: (1) Plaintiffs' motion for conditional collective action certification, (2) Ghilotti's motion to dismiss, and (3) Plaintiffs' motion to strike Ghilotti's affirmative defenses. The Court finds these matters suitable for disposition without oral argument, see Civil Local Rule 7-1(b), and VACATES the hearings set for April 26, 2013.


Plaintiffs Jose Ramirez, Luis Gomez, Marck Mena Ortega, and the (" at least 100 more" potential[1]) opt-in Plaintiffs are present and former Ghilotti laborers whose work included loading and unloading trucks and the transportation of necessary construction equipment to and from job sites before and after their shifts. See Sec. Am. Compl. ¶ 41 (" Loading and Transport Subclass[2]" ).

According to declarations and documents Plaintiffs submitted in connection with this motion, Ghilotti requires that materials and equipment be transported between its job sites and its loading areas at the beginning and end of work days. To that end, Ghilotti maintains a list of laborers with driver's licenses who may drive Ghilotti company trucks. Ortega Decl. (dkt. 33-2) ¶ 3.[3] Ghilotti laborers call the Ghilotti dispatch center the afternoon or evening before a potential work day, and a prerecorded message tells them (1) if they are working, and, if so, (2) at which site, (3) when they have to arrive at the site, (4) whether they must drive a company truck, and, if so, (5) which truck and (5) which equipment must be transported on that truck. Id. ¶ 6.

A laborer assigned to drive a company truck must determine himself what time to show up at the Ghilotti loading area, which

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involves working backwards from the shift start time specified by dispatch and estimating loading and driving time from the loading area. Id. Once at the loading area-often a company yard in San Rafael-the laborer must inspect the truck, fill it with oil and gas, collect and load the dispatch-specified materials into it, and then drive to the job site. Id. ¶ 7. That process usually takes between 1 and 1.5 hours. Id.

At the end of the shift at the work site, the driving laborer must collect the materials he transported to the job site and load them back on to the company truck (sometimes with the assistance of non-driving laborers), and then drive the truck back to the Ghilotti loading area and unload the materials. The post-shift loading and transportation process usually takes between 1 and 1.5 hours. Id. ¶ 9.

According to Plaintiffs, Ghilotti does not pay driving laborers for any of those pre- and post-shift loading and transport duties. Id. ¶ 11. Rather, their pay stubs reflect only the hours spent working at the job site " during [their] official shift[s]." Id. Plaintiffs also say that their experiences of not being paid for driving and loading time did not vary by supervisor. Id. ¶ 12.

In 2007, Ghilotti briefly decided to provide some compensation to driving laborers for their driving-related tasks through a " monthly driving bonus," Ramirez Decl. (dkt. 33-3) ¶ 13 & Ex. A (Ghilotti memo titled " New Driving allowance procedure-sign-out for trucks" ), which was a separate check. Ortega Depo., Grunfeld Decl., Ex. D at 138:22-139:15. The practice ended after " a few months." Id. ¶ 13.[4] It was not replaced with any other system of compensating drivers for the loading and driving time. Id.

And, according to one plaintiff, Ghilotti retaliated against him by denying him future shifts when he complained about not being paid for time spent driving and loading. See Hodgkinson Decl. ¶ 12 (" When I would bring it up, inevitably I was told that I was on a 'no work schedule' when I next called dispatch. . . . I once asked . . . why I had not been scheduled to work[, and was told] that when I was ready to start driving trucks again without a problem, I would be put back on a work schedule." ); see also Gomez Decl. ¶ ¶ 12-13 (supervisor threatened to deny future shifts).

Plaintiffs filed suit in state court in June 2012 under state and federal wage and hour statutes. See dkt. 1, Ex. A. After Plaintiffs filed an amended complaint in July, Ghilotti removed the case to federal court in August 2012 on the basis of federal subject matter jurisdiction. Id. Ghilotti filed its Answer in September 2012, dkt. 12, and this Court granted Plaintiffs' motion for leave to amend their complaint to add new claims in January 2013. See dkts. 25, 27. So far, partial depositions have been taken of the three named plaintiffs and Ghilotti's " person most knowledgeable" about the company's dispatch and record-keeping practices. See Cert. Mot. at 4.

Now before the Court are three motions: (1) Plaintiffs' motion for conditional collective action certification under the FLSA; (2) Ghilotti's motion to dismiss; and (3) Plaintiffs' motion to strike Ghilotti's affirmative defenses.


A. Collective Action Certification

Under the FLSA, individuals may bring suit " in behalf of himself or themselves

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and other employees similarly situated." 29 U.S.C. § 216(b). The statute does not define " similarly situated," however, and neither has the Ninth Circuit. See Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1127 (N.D. Cal. 2009) (Wilken, J.). Within this Circuit, to determine whether plaintiffs are similarly situated, courts take a two-step approach. Id.

First, the court makes an initial, conditional determination of whether plaintiffs are similarly situated, " deciding whether a collective action should be certified for the purpose of sending notice to potential class members." Id. The initial notice stage determination uses a " lenient [standard] that typically results in certification." Id. (citing Wynn v. National Broadcasting Co., Inc., 234 F.Supp.2d 1067, 1082 (C.D. Cal. 2002)). Plaintiffs must simply provide " substantial allegations, supported by declarations or discovery." Kress v. PriceWaterhouseCoopers, LLP, 263 F.R.D. 623, 627 (E.D. Cal. 2009). And, courts need not even consider evidence provided by defendants at this stage. Id. at 628 (citing Lewis, 669 F.Supp.2d at 1128).

Then, once discovery is complete, and usually prompted by a defendant's motion for decertification, the court makes a second determination, using a stricter standard. Id. At that point, the court " must make a factual determination" as to the " propriety and scope of the class," considering " (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations." Leuthold v. Destination America, Inc., 224 F.R.D. 462, 467 (N.D. Cal. 2004) (Walker, J.).

Even at that second stage, the showing that must be made for collective actions is less stringent than what is required under Federal Rule of Civil Procedure Rule 23-" [a]ll that need be shown by the plaintiff is 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." Lewis, 669 F.Supp.2d at 1127 (citing Wertheim v. Arizona, 1993 WL 603552 at *1 (D. Ariz. 1993)).

Although courts occasionally skip the initial, notice stage determination, see, e.g., Basco v. Wal-Mart Stores, Inc., at *15 (E.D. La. July 2, 2004), courts in this Circuit overwhelmingly " refuse to depart from the notice stage analysis prior to the close of discovery," see Kress, 263 F.R.D. at 629 (citing, among other cases, Labrie v. UPS Supply Chain Solutions, Inc., 2009 WL 723599 at *3 (N.D. Cal. Mar. 18, 2009) (Hamilton, J.)).

B. Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Dismissal is proper where a cause of action fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Rule calls for sufficient factual matter to " state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Wyler-Summit P'ship ...

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