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Boyd v. Bank of America Corp.

United States District Court, Ninth Circuit

December 11, 2013

TERRY P. BOYD, ET AL
v.
BANK OF AMERICA CORP., ET AL

CIVIL MINUTES - GENERAL PROCEEDINGS (IN CHAMBERS): ORDER GRANTING IN PART PLAINTIFF'S MOTION

DAVID O. CARTER, District Judge.

Before the Court is a Motion to Certify Conditional Class (Dkt. 44) and for Partial Summary Judgment filed by Plaintiffs Terry P. Boyd, Ethel Joann Parks, Sonia Medina, Linda Zanko, and Victor Galaz ("Plaintiffs"). After considering the moving, opposing and replying papers, and after hearing oral argument by counsel, the Court hereby GRANTS IN PART Plaintiffs' Motion and CONDITIONALLY CERTIFIES the class. Because Plaintiffs' arguments in favor of partial summary judgment are premature, the Court DENIES them without prejudice.

I. Background

Plaintiffs allegedly were or are employed by Bank of America Corp. ("BoA") or its subsidiaries Defendants LandSafe, Inc. and/or LandSafe Appraisal Services (collectively, "Defendants") as Residential Staff Appraisers or Review Appraisers (together, "Appraisers").

Staff Appraisers perform appraisals on residential properties and generate reports for their employer providing the estimated value of properties, while Review Appraisers review the work of Staff Appraisers and confirm their appraisals. Among other unlawful employment practices, Plaintiffs alleged that they regularly worked in excess of eight hours per day and forty hours per week without overtime compensation from Defendants. As a result, Plaintiffs filed a class action suit against Defendants on April 9, 2013, on behalf of themselves and "persons similarly situated."

In Plaintiffs' Second Amended Complaint ("SAC") (Dkt. 42), Plaintiffs define those similarly situated, or its class (the "FLSA Class."), as

All persons who are or have been employed by Defendants as Appraisers, including employees with the job title "Residential Staff Appraiser, " "Staff Appraiser" or "Residential Appraiser" and any other employee performing the same or similar duties for Defendants, and as "Review Appraisers, " and any other employee performing the same or similar duties for Defendants, within the United States at any time from three years prior to the filing of this Complaint to the final disposition of this case.

SAC ¶ 20.

Plaintiffs allege that Appraisers perform the same or similar job duties, are paid by Defendants according to a nationwide policy, tend to work in excess of forty hours per week, and "all were classified as exempt and not paid overtime wages." Mot. at 3. Though Appraisers may vary in experience, geography, and, as between Staff Appraisers and Review Appraisers, specific job duties, Plaintiffs allege that all are uniformly compensated according to company-wide formulas based on production levels, as determined by the number of appraisal reports that Appraisers produce or review each month. Plaintiffs allege that although Defendants encouraged them to work long hours, they were not compensated by Defendants for their overtime work.

II. LEGAL STANDARD: CERTIFICATION OF FLSA COLLECTIVE ACTION

The FLSA prohibits an employer from failing to pay overtime wages to an employee. 29 U.S.C. § 207(a). The statute provides that an aggrieved employee may bring a collective action on behalf of herself and other employees "similarly situated" based on an employer's failure to pay such wages. Id. § 216(b). Potential collective action plaintiffs must "opt-in" to the action by filing a written consent with the court. See Id. (stating that "[n]o 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"); Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000). If similarly situated employees do not "opt-in" to the collective action, these employees are not bound by any judgment reached in the action. Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004).

In determining whether to certify a collective action under the FLSA, a district court must determine if the proposed class is "similarly situated" to the lead plaintiff. A majority of courts have adopted a two-step approach, and this Court utilizes the two-tiered case-by-case approach outlined below. See id. (citing district courts adopting the two-step approach and following that approach); Misra v. Decision One Mortgage Co., LLC, 673 F.Supp.2d 987, 992 (C.D. Cal. 2008) (same); Pfohl v. Farmers Ins. Group, No. CV 03-3080 DT (RCx), 2004 WL 554834, at *2 (C.D. Cal. Mar. 1, 2004) (same).

Under the two-step approach, a district court first determines, based on the submitted pleadings and affidavits, whether the proposed class should be conditionally certified and notified of the action. Leuthold, 224 F.R.D. at 467. Since this first determination is generally made before the close of discovery and is based on a limited amount of evidence, the courts apply a fairly lenient standard and typically grant conditional class certification. Id. ; Pfohl, 2004 WL 554834, at *2. The standard applied is less rigorous than the commonality requirement of Rule 23. Church v. Consolidated Freightways, Inc., 137 F.R.D. 294, 306 (N.D. Cal. 1991).

The second tier in this approach occurs after discovery is complete, at which time the defendants may move to decertify the class. Leuthold, 224 F.R.D. at 467. At that point, the court makes a factual determination about whether the plaintiffs are similarly situated. Pfohl, 2004 WL 554834, at *2 (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)). If the district court determines that the plaintiffs are not similarly situated, the court may decertify the class and ...


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