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Rivera v. Saul Chevrolet, Inc.

United States District Court, N.D. California, San Jose Division

November 2, 2017

MARCOS RIVERA, Plaintiff,
v.
SAUL CHEVROLET, INC., et al., Defendants.

          ORDER DENYING WITH PREJUDICE SECOND MOTION TO CONDITIONALLY CERTIFY FLSA COLLECTIVE ACTION RE: DKT. NO. 128

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

         Plaintiff Marcos Rivera (“Plaintiff”), on behalf of himself, the public, and all others similarly situated, brings this action against Saul Chevrolet, Inc.; Cardinale Automotive Group of Tahoe, Inc.; Cardinale Automotive Group; Volkswagen Hyundai; Cardinale Oldsmobile GMC Truck, Inc.; Cardinale AG Motorbike, Inc.; Cardinale Nissan, Inc.; Cardinale Protective Services, Inc.; Cardinaleway Nevada AG Inc.; Cardinaleway Acura; Cardinale Automotive Group-Arizona, Inc.; Cardinaleway Mazda AT Peoria; and Cardinaleway Mazda AT Superstition Springs (collectively, “Defendants”). Before the Court is Plaintiff's Second Motion to Conditionally Certify a FLSA Collective Action and Send Notice to the Class. ECF No. 128 (“Mot.”). Having considered the parties' briefing, the relevant law, and the record in this case, the Court DENIES with prejudice Plaintiff's Second Motion to Conditionally Certify FLSA Collective Action.

         I. BACKGROUND

         A. Factual Background

         Plaintiff alleges that he is a former employee of Defendants who worked at “Defendants' Corona, California [automobile] dealership as a non-exempt parts and service counter salesperson.” ECF No. 1 (“Compl.”) ¶ 10. Specifically, Plaintiff worked at a dealership called Cardinale Mazda, which is owned by Defendant Saul Chevrolet, Inc. (“Saul Chevrolet”). Id. Defendants allegedly own multiple car dealerships and “were, at all times relevant hereto, the alter egos of each other.” Id. ¶ 29.

         Plaintiff began working at Cardinale Mazda on March 4, 2015. ECF No. 74-1 ¶ 3. Plaintiff was paid $3, 000 per month while working for Defendants and was promised commissions based on sales. Compl. ¶ 31. Plaintiff alleges, however, that the “commission structure was a mirage.” Id. Plaintiff asserts that, as a result, Plaintiff “was entitled to payment for each of his hours worked, including substantial overtime worked (at one and one-half times his ‘regular rate of pay, ' based on his salary).” Id. Plaintiff also alleges that Defendants required Plaintiff and other employees to work “off the clock, ” which resulted in unpaid wages and unpaid overtime. Id. ¶ 32.

         B. Procedural History

         On October 14, 2016, Plaintiff filed the instant class action and Fair Labor Standards Act (“FLSA”) collective action suit against Defendants. See Compl. Plaintiff alleges nine causes of action: (1) Failure to Pay Overtime Compensation in violation of FLSA, 29 U.S.C. § 207; (2) Failure to Pay Compensation for All Hours Worked and Minimum Wage Violations in violation of California Labor Code §§ 216, 1194, 1194.2, 1197; (3) Failure to Pay Overtime Compensation in violation of California Labor Code §§ 1194; (4) Failure to Pay Meal and Rest Period Compensation in violation of California Labor Code §§ 226.7, 512; (5) Waiting Time Penalties under California Labor Code § 203; (6) Failure to Pay All Wages by the Appropriate Pay Period in violation of California Labor Code § 204; (7) Failure to Provide Accurate Itemized Statements in violation of California Labor Code § 226; (8) Private Attorney General Act, Cal. Labor Code § 2699; and (9) Unfair Business Practices in violation of California Business and Professions Code § 17200, et seq. See Compl. ¶¶ 44-92.

         On February 18, 2017, Defendants filed a motion to compel arbitration. ECF No. 68. On March 6, 2017, Plaintiff filed an opposition, ECF No. 74, and on March 13, 2017, Defendants filed a reply, ECF No. 77. On May 9, 2017, the Court denied Defendants' motion to compel arbitration. ECF No. 88.

         On May 22, 2017, Plaintiff filed a motion to Conditionally Certify a FLSA Collective Action and Send Notice to the Class. See ECF No. 105. On June 30, 2017, Defendants filed an opposition, ECF No. 110, and on July 13, 2017, Plaintiff filed a reply, ECF No. 111. On July 31, 2017, the Court denied Plaintiff's motion to Conditionally Certify a FLA Collective Action and Send Notice to the Class. ECF No. 115. The Court found that Plaintiff (1) failed to “identify the ‘single decision, policy, or plan' that affected all of the putative collective action members”; (2) “fail[ed] to provide any evidence that anyone but Plaintiff worked unpaid overtime”; (3) “fail[ed] to provide sufficient evidence that Plaintiff and members of the putative collective action members have similar job responsibilities and pay structures”; and (4) failed to “provide sufficient evidence that whatever decision, policy, or plan exists in this case extended to all Defendants and their dealerships.” Id. at 8-9. The Court afforded Plaintiff leave to file a second motion to conditionally certify a FLSA collective action, but cautioned Plaintiff that “[f]ailure to cure the deficiencies identified in this order . . . will result in a denial with prejudice of conditional certification of FLSA collective action.” Id. at 18.

         On September 11, 2017, Plaintiff filed the instant Second Motion to Conditionally Certify a FLSA Collective Action and Send Notice to the Class. See Mot. Although Plaintiff's complaint sought certification of a collective action of all “non-managerial” employees that worked for Defendants, Plaintiff now seeks certification of the following collective action: “[A]ll non- managerial Employees at any of Defendant's dealerships from October 11, 2013 to present who worked as parts salespeople, counterpeople, or associates, auto salespeople or associates, or maintenance employees or associates and who were paid a base amount, whether by salary or by draw, with the possibility of a commission payment.” Mot. at 15. On September 25, 2017, Defendant filed an opposition, ECF No. 129 (“Opp'n”), and on October 2, 107, Plaintiff filed a reply. ECF No. 131 (“Reply”).

         II. LEGAL STANDARD

         Under the FLSA, an employee may bring a collective action on behalf of other “similarly situated” employees. 29 U.S.C. § 216(b). In contrast to class actions pursuant to Rule 23 of the Federal Rules of Civil Procedure, potential members of a collective action under the FLSA must “opt in” to the suit by filing a written consent with the court in order to benefit from and be bound by a judgment. Centurioni v. City & Cty. of S.F, 2008 WL 295096, at *1 (N.D. Cal. Feb. 1, 2008); see also 29 U.S.C. § 216(b) (“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.”). Employees who do not opt in are not bound by a judgment and may subsequently bring their own action. Centurioni, 2008 WL 295096 at *1.

         Determining whether a collective action is appropriate is within the discretion of the district court. See Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). The plaintiff bears the burden to show that the plaintiff and the putative collective action members are “similarly situated.” Id. The FLSA does not define the term “similarly situated, ” nor has the Ninth Circuit defined it. Id. Although various approaches have been taken to determine whether plaintiffs are “similarly situated, ” courts in this circuit have used an ad hoc, two-step approach.[1]See Id. at 467 (“The court proceeds under the two-tiered analysis, given that the majority of courts have adopted it.”); see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (discussing three different approaches district courts have used to determine whether potential plaintiffs are “similarly situated” and finding that the ad hoc approach is arguably the best of the three approaches); Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012) ...


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